Opinion
5-20-0231
12-10-2021
JENNIFER PAGE, Petitioner-Appellee, v. DONALD GADDIS, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Williamson County. No. 20-OP-140 Honorable Amanda Byassee Gott, Judge, presiding.
JUSTICE WHARTON delivered the judgment of the court. Presiding Justice Boie and Justice Cates concurred in the judgment.
ORDER
WHARTON JUSTICE.
¶ 1 Held: The evidence adduced at the plenary stalking no contact hearing established a "course of conduct" involving two distinct stalking events perpetrated by Donald Gaddis against Jennifer Page, and the plenary order is affirmed. The objected-to unconstitutional language included in the temporary stalking no contact preprinted form order was not a basis for the trial court's stalking findings, and the objections to the unconstitutional language in the preprinted forms have been rendered moot by subsequent action taken by the Williamson County circuit court. The trial judge's decision not to recuse herself was within her discretion and appropriate.
¶ 2 Donald Gaddis appeals from the trial court's July 31, 2020, plenary no contact no stalking order. He argues that the trial court erred by not vacating the temporary order of protection, that the record does not support the court's finding that there were two stalking events, and that the trial court judge should have recused herself. We affirm.
¶ 3 I. BACKGROUND
¶ 4 A. The Petition and Hearing for a Stalking No Contact Order
¶ 5 On May 5, 2020, Jennifer Page filed a verified petition seeking a no contact order against Donald Gaddis. Page works at the Williamson County courthouse as a court reporter. In her emergency petition, she alleged two separate events involving Gaddis in the vicinity of the courthouse. Page asked the court to enter an order barring Gaddis from coming within 500 feet of Page's home and workplace.
¶ 6 Page alleged that on April 23, 2020, at approximately 9:10 a.m., Gaddis was parked outside of the courthouse in an employee-designated parking spot "as he does very often." Page contacted courthouse security to report Gaddis. Deputy John Fleming came outside and radioed Deputy Doug Brinkley about the situation while Gaddis started to drive away. Gaddis then circled the courthouse several times and stopped periodically to take photographs. Page and four deputies stood outside the courthouse while Gaddis continued to drive around, stopped to verbally confront some of the individuals, and to take photographs. On his last time circling the courthouse and taking photographs, he seemed to be specifically taking photographs of Page. Page told him to stop taking photographs of her. Gaddis replied: "You need to lose weight, lady." Then, Gaddis drove away.
¶ 7 Page also alleged that on May 4, 2020, Gaddis "drove within 2 feet of my person taking pictures of me, my car, my mother, her car, my daughter as they were dropping off items to me outside near my car." She also alleged that at some other time, Gaddis had posted at least one poster board containing references to her on a power pole outside the courthouse.
¶ 8 In conclusion, Page stated that she had been harassed, approached, and verbally assaulted by Gaddis for the past two years. Page indicated that she had alerted security about Gaddis on at least six occasions. Page stated that she found Gaddis to be "alarming, disturbing, threatening, [and] abusive," and further, that she considered "his actions and his presence at and near the courthouse to be an assault on my personal liberties."
¶ 9 At the ex parte emergency hearing on May 5, 2020, Page testified that her mother parked behind her vehicle at the courthouse for the purpose of transferring items she had purchased to Page's vehicle. Gaddis pulled up near them and told them that they could be arrested for parking on the street near the courthouse. Page informed Gaddis that her mother was not parking. Gaddis took photographs of them. Page testified that Gaddis's vehicle came so close to her that she "could feel the heat from the bottom of his car hitting the back of my legs." Page's mother yelled at Gaddis to stop photographing her, and then Gaddis drove away. However, he circled the area four times and continued to take photographs of Page and her mother at each pass.
¶ 10 Page also testified to an incident with Gaddis that occurred approximately one week prior. She noticed that Gaddis was illegally parked in the employee parking area at the courthouse. She contacted security. Gaddis exchanged words with Deputy Fleming and then drove away. Eventually, there were four security personnel standing outside with Page and talking. Gaddis returned to photograph them. Page asked Gaddis why he was photographing them, and he told her that he was taking photographs of her. Page then told Gaddis that he did not need to take photographs of her, after which Gaddis stated: "You need to lose weight, lady." Then he drove off.
¶ 11 Page testified that those were the only two incidents with her that were close enough to cause her alarm. She informed the court that Gaddis posted posters of various judges and courthouse employees, and that she had been told that he had posted one of her that referenced her weight. She testified that she had not personally seen this poster. Page testified that because of Gaddis, the courthouse had to modify who had the ability to park next to the courthouse.
¶ 12 The judge asked Page why she was seeking the order without notice to Gaddis, and she testified that it was for the safety of the judges and other courthouse personnel. She indicated that Gaddis had at least 10 cases then pending against him and that when a court date approached, his behaviors and activity around the courthouse tended to escalate. She testified that because of Gaddis's behavior and attack on courthouse personnel, six judicial employees had taken Illinois concealed carry classes and were now authorized to carry a weapon.
¶ 13 On May 5, 2020, the trial court entered its emergency stalking no contact order against Gaddis. The trial court found that good cause existed to grant the remedy that Page sought. The court found that Page had been a victim of two or more acts of "following, monitoring, observing, surveilling, threatening, communicating, or inferring or damaging to property or pets by [Gaddis]." The court prohibited Gaddis from threatening to commit or committing stalking behavior personally or through a third party. Gaddis was prevented from contacting Page in any manner. He was ordered to stay a minimum of 500 feet away from Page at her residence or at her workplace. Gaddis was prohibited from possessing a Firearms Owners Identification Card and from possessing or buying firearms. Finally, the court found: "Any and all attempts at communication or contact will be considered harassment. This includes all social media and third party contact with petitioner and/or protected parties." The temporary order was valid until June 12, 2020. The plenary hearing was scheduled for that same date.
¶ 14 B. Motions and Responses to the Emergency Order
¶ 15 Gaddis filed two motions to vacate the emergency order. The first was filed on May 8, 2020. Gaddis argued that the length of the order extended past the 21 days statutory maximum. See 740 ILCS 21/105(a) (West 2018). Additionally, he argued that he had a constitutional right to attend his own hearings in a criminal misdemeanor case and a traffic violation case set for June 12, 2020, in the same courthouse. Currently, due to the temporary order, he was not allowed to be within 500 feet of the courthouse. The second motion to vacate was also filed on May 8, 2020. In this motion, Gaddis argued that the wording of the temporary order barring him from "communicating to or about" Page had been held unconstitutional by the Illinois Supreme Court in People v. Relerford, 2017 IL 121094, and by the Illinois Appellate Court in Flood v. Wilk, 2019 IL App (1st) 172792. Because of the holdings in these two cases, Gaddis stated that the Illinois legislature amended the statutory language.
¶ 16 Gaddis filed a responsive pleading to Page's petition and the court's emergency order on June 2, 2020. In this pleading, Gaddis claimed that he spoke to Page in response to her provocation. He also claimed that his speech fell into a category of protected speech. He attached an affidavit to his responsive pleading. He acknowledged that he had previous indirect contact with Page as she was a court reporter who transcribed three or four hearings in which he was involved. He did not deny that he was illegally parked on May 4, 2020, but alleged that Page and her mother had also illegally parked. He asserted that he had photographic evidence of numerous vehicles illegally parked outside the courthouse. He denied that he had come within two or three feet of Page as she alleged. He claimed that he was taking photographs of the courthouse employees and illegally parked vehicles and stated that any photograph of Page and/or of her mother was not intentional. He acknowledged that he said to Page: "You need to lose some weight," but claimed that his statement was in response to Page's question about why he was taking photographs. The balance of his affidavit contained detailed information about his multiple lawsuits and orders of protection filed against him or by him regarding his neighbors, Williamson County judges, and law enforcement personnel.
¶ 17 C. Extension of Temporary Order
¶ 18 On June 3, 2020, the trial court extended the temporary order until July 3, 2020. On June 29, 2020, Gaddis filed his motion to vacate the extension. He again argued that the original order was void because it contained unconstitutional language prohibiting him from "communicating to or about" Page. Gaddis's attorney attached a copy of a May 20, 2020, letter he wrote to Judge Brad Bleyer, a Williamson County circuit judge, to Brandon Zanotti, the Williamson County state's attorney, and to Andrew Wilson, the Williamson County circuit clerk. With the letter, Gaddis's attorney pointed out that the courts were still using the older preprinted forms that contained the now unconstitutional language. Gaddis also attached Judge Bleyer's May 21, 2020, response in which he explained that to date, there had been no updated forms provided or approved by the Conference of Chief Circuit Judges. In the meantime, Judge Bleyer had instructed everyone in Williamson County who uses the form to amend the forms until a more current standard form was provided.
¶ 19 In response, Page argued that until the court held the plenary hearing, all of Gaddis's motions were premature. She argued that the trial court had not yet determined if Gaddis's speech was protected under the first amendment or if his speech was excluded from protection.
¶ 20 D. The Plenary Hearing and Motions
¶ 21 On July 2, 2020, the trial court began the plenary hearing. Gaddis, Detective Carl Eggemeyer, Officer Michael Baxter, Deputy John Fleming, and Pam Meracle were called to testify. Before the hearing began, Gaddis's attorney argued his motion to vacate the original order and the June 3, 2020, order extending that order. He argued that the May 5, 2020, order contained unconstitutional language and so any order extending the original order was similarly unconstitutional. Page's attorney responded by arguing that the essence of the stalking behavior Page alleged Gaddis committed was based on other incidents of stalking behavior and did not include his communication with Page. In simpler terms, Page was not claiming that Gaddis had stalked her by speaking to or about her. Page's attorney also noted that courts had held that if speech was part of another course of conduct or a series of courses of conduct, then the speech was not protected. The court opted to take the motion under advisement until after the hearing because a ruling could be dependent upon the allegations and supporting testimony.
¶ 22 1. Testimony of Donald Gaddis
¶ 23 Gaddis testified that he was 47 years old and unemployed. He stated that although he did not know Page by name, she had been a court reporter on a few of his cases. He identified a photograph he took on April 23, 2020, that depicted four officers (Eggemeyer, Graul, Fleming, and Brinkley) standing with Page outside the courthouse. Gaddis was approximately 40 feet away when he took the photograph. On that date, Gaddis had arrived at the courthouse at approximately 9 a.m. Gaddis testified that he did not believe that he was illegally parked and that he was at the courthouse "[b]ecause that's what-I'm really-I've been-I have been so mistreated, unfairly treated by this court system. I just-I-I'm in protest, so I park by the judges, I put signs up. I protest my-treatment. I've been so mistreated around this place it's ridiculous." He testified that he took photographs of people illegally parked because the court system had made an issue of his own parking. Gaddis contended that he had the legal right to take photographs of public employees. Gaddis stated that he believed that Page and the four officers were surveilling him, and so he took their photograph. He acknowledged that on that date, he had an exchange of words with Eggemeyer and with Page. He stated that he had past interactions with Eggemeyer and Fleming and stated that Fleming had perjured himself in testifying in another matter about Gaddis.
¶ 24 Gaddis testified that on May 4, 2020, he took two photographs of Page, her mother, and their vehicles to demonstrate that one of the vehicles was illegally parked. He denied that he drove his vehicle within two feet of Page.
¶ 25 Gaddis also testified about the various signs he posted around town. Thirty of his signs were admitted into evidence over his objection that the signs constituted protected speech. The signs all involved his history of arrests and prosecutions in Williamson County and allegations about the officers and judges involved in those cases. He admitted to posting a sign about Page that either said, "It's not my fault that you're fat" or "You're afraid to be fat." He testified that he posted this sign when he learned that Page contacted the police.
¶ 26 2. Testimony of Carl Eggemeyer
¶ 27 Detective Carl Eggemeyer testified that he arrived at the courthouse on April 23, 2020, at 9:10 a.m. He observed Gaddis drive around the courthouse a few times and take photographs of Page and the officers standing outside the courthouse. He testified that Gaddis engaged him in conversation, as well as Deputy Doug Brinkley and Page. Detective Eggemeyer testified that Page appeared to be "pretty alarmed and disturbed," and that when he made a reference to Page's weight, Page "gasped, got quiet, [and] kind of [her] jaw had dropped." On cross-examination, he acknowledged that Page's demeanor on April 23, 2020, was steady during the 20 minutes they stood outside the courthouse but changed after Gaddis commented about her weight.
¶ 28 Detective Eggemeyer testified that he and Gaddis had an incident the previous year. On cross-examination, he admitted to following Gaddis when Gaddis was driving his vehicle near the courthouse but concluded that Gaddis was not then engaged in criminal activity. He confirmed that he does not work at the courthouse and is employed by the City of Marion.
¶ 29 3. Testimony of Michael Baxter
¶ 30 Gaddis called Officer Michael Baxter to testify out of order. Officer Baxter testified that he is a Marion police officer. He knew who Gaddis was before the April 23, 2020, incident. Officer Eggemeyer had tasked Baxter with investigating Gaddis relative to his presence in and around the Williamson County courthouse. Officer Baxter took statements at the courthouse and then interviewed Gaddis at his home. The purpose of the investigation was to determine if Gaddis had engaged in disorderly contact or trespass. At the conclusion of his investigation, Officer Baxter made no referral to the Williamson County State's Attorney's Office. However, Officer Baxter informed Gaddis that he could no longer park where he had been parking because the area was marked by signs and that there may have been an ordinance enacted. Officer Baxter also interviewed Page who stated that she did not feel safe because he kept driving around and around the courthouse and taking photographs. Page also told him that she had asked Gaddis why he was driving around and taking photographs. Gaddis had allegedly responded to Page with some reference to her weight.
¶ 31 On cross-examination, Officer Baxter testified that the chief of the Marion Police Department advised all officers not to engage in conversation with Gaddis-to avoid any contact with him. On redirect, he explained that some of the officers may have wanted "to poke the bear" to upset Gaddis, and the chief wanted all contact with Gaddis to cease. Officer Baxter testified that to his knowledge there had been a lot of litigation resulting from contact with Gaddis.
¶ 32 4. Testimony of John Fleming
¶ 33 John Fleming testified that he is a deputy sheriff with the Williamson County Sheriff's Office and has held that job for 25 years. He was present when the events of April 23, 2020, occurred. He testified that the first time Gaddis drove around the courthouse, Gaddis yelled that Deputy Doug Brinkley was a liar. He stated that Gaddis was also taking photographs. Gaddis then yelled that he had not called Detective Eggemeyer a bitch, but that he had called him a dick. Page asked Gaddis not to take photographs of her. Then Gaddis commented on Page's weight. Fleming testified that Page was embarrassed and clearly upset by Gaddis's words, stating that her face turned red, she teared up, and she put her head down. Fleming testified that Gaddis had not displayed any conduct on April 23, 2020, that caused him to fear for Page's safety.
¶ 34 Fleming testified that typically Gaddis would drive around the courthouse 50 to 75 times per day. He also routinely stood outside of the courthouse and yelled at people to inform them about courthouse employees. This behavior continued until Page filed her emergency petition, and Fleming testified that "people finally got some relief."
¶ 35 Fleming testified that he was also present on May 4, 2020. He observed Gaddis yelling at Page and her mother.
¶ 36 Fleming testified that Gaddis had apparently parked in an area designated for employees. On one occasion, he was instructed by the Williamson County sheriff to arrest Gaddis for illegal parking, but he did not do so because he noticed that Marion police officers had also parked in the same employee-designated spots.
¶ 37 Fleming also testified that he was responsible to monitor Gaddis when he was near the courthouse. The two men had a history in that Gaddis had allegedly committed an aggravated assault upon Fleming. He admitted that prior to that assault, he had made an obscene gesture directed at Gaddis.
¶ 38 5. Testimony of Pam Meracle
¶ 39 Pam Meracle is Page's mother. Meracle testified about the encounter she had with Gaddis on May 4, 2020. Meracle was meeting up with Page to drop off rose bushes that Meracle had bought for her. She testified that she was driving through the employee parking area to locate her daughter's vehicle. Gaddis pulled up alongside Meracle's vehicle and motioned for her to roll down her window. Meracle did as Gaddis asked, and he told her that she could not park where she was parked and that he had been arrested for doing so on several occasions. She told Gaddis that she was merely driving through the area, not actually parking. Then, Gaddis blocked her in the employee parking lot and started taking photographs of her. She yelled at him to stop. He drove away. Meracle testified that she was frightened. She then exited the parking lot and parked close to her daughter's vehicle but in a street parking spot. Then she noticed that the man had returned and was taking photographs of her and Page. Meracle and Page transferred the rose bushes from Meracle's vehicle to Page's vehicle. During this time, Gaddis drove his vehicle very close to Page.
¶ 40 6. Conclusion of Day One of Plenary Hearing and Posthearing Motion
¶ 41 At the conclusion of Meracle's testimony, the court set another hearing date for July 31, 2020, to complete the plenary hearing. The court entered its order extending the emergency order to July 31, 2020. In response, Gaddis filed a motion to reconsider the order of extension. He again argued that the original order contained unconstitutional language. He asked the court to either vacate the July 2, 2020, extension order, or alternatively indicate that the extension would not include the unconstitutional provisions.
¶ 42 7. Preliminary Matters on Day Two of Plenary Hearing
¶ 43 The court resumed the plenary hearing on July 31, 2020. At the beginning of the hearing, Gaddis's attorney registered his objection with the trial court judge, Amanda Gott, for not disclosing to the parties and their attorneys that before taking the bench, she had sold her law office building and practice to Page's attorney. Further, Gaddis's attorney noted that Judge Gott had sent out letters to her former clients that Page's attorney would be taking over her practice. Gaddis's attorney acknowledged that he had not filed a formal motion because he needed to confirm the information with the judge. He then asked Judge Gott if she had considered that there was at least an appearance of a conflict of interest. The judge responded that it was her understanding that there was no ethical concern or conflict of interest because after the sale of the building and practice, the relationship with Page's attorney concluded. Gaddis's attorney asked the court to take note of his client's concern.
¶ 44 The trial court denied Gaddis's motion to reconsider the order of extension. The court explained that the court needed to hear all testimony to ascertain if the language used by Gaddis extended beyond the parameters of free speech, and therefore could be banned by court order.
¶ 45 8. Testimony of Jennifer Page
¶ 46 Page testified that she was employed by the State of Illinois as an "Official Court Reporter 3" and works at the Williamson County courthouse. She has been an Illinois court reporter since 1991. In the course of her job, she had been the court reporter in cases involving Gaddis. She described his behavior during those hearings as very erratic in that he would shout at parties, witnesses, and his own attorney. She reported similar behavior in multiple criminal cases against Gaddis where she had been the court reporter.
¶ 47 In addition to being the court reporter on many of Gaddis's cases, she testified that she also had observed him "hundreds" of times outside the courthouse. Page began seeing Gaddis frequently around the courthouse in 2017 or 2018. She described this behavior as occurring daily. Gaddis is either parked or driving around and around the courthouse. Sometimes he stood outside of his vehicle shouting at anyone about his mistreatment by Williamson County. She also testified that he always parked in or next to the employee parking lot at the courthouse. Page testified that Gaddis covered his vehicle windows with signs created on poster board. With this activity, Page expressed her concern that given Gaddis's erratic behavior, she was unable to see what he was doing inside his vehicle because the signs obscured her view. Page also testified that he used a shiny silver camera to take photographs, and she was not able to quickly determine if the shiny silver object was a gun or a camera. The Williamson County Sheriff's Department issued a safety alert that contained Gaddis's photograph.
¶ 48 Page testified that based upon her involvement as a court reporter on numerous Gaddis cases, she was aware that on one occasion he had used his vehicle to block the path of another vehicle. In another case involving a local police officer, Gaddis showed up at the officer's house, and when he was told that he needed to depart, he retrieved a golf club from his vehicle and acted as if he would use the club as a weapon.
¶ 49 Page testified that Gaddis's behavior was very concerning to her. She testified that she was fearful for her safety and the safety of her coworkers. Page testified that she began modifying her own behavior in response to Gaddis's behavior in and around the courthouse. She testified that she was always very wary about where she parked, and that she would surveil the area before getting out of her vehicle. She testified that every day she would transfer her grandson to her mother's vehicle, and she began changing the location for the transfer to avoid Gaddis. Page took classes and received her Illinois concealed carry license.
¶ 50 Page testified about the incidents on April 23, 2020, and on May 4, 2020. Her testimony was consistent with her testimony at the May 5, 2020, ex parte hearing and with the allegations in her petition.
¶ 51 9. Plenary Order and Notice of Appeal
¶ 52 On July 31, 2020, the trial court entered a plenary order of protection against Gaddis that would be in effect until July 31, 2022. Although Gaddis was ordered to stay 500 feet away from Page's workplace, the court stated that Gaddis would be allowed to be present at the Williamson County courthouse for any required court appearances. The "course of conduct" definition contained within the plenary order conformed with the January 1, 2019, statutory amendment and did not include the "communicates to or about" phrase that had been declared unconstitutional. 740 ILCS 21/10 (West 2018).
¶ 53 On August 1, 2020, Gaddis filed his notice of appeal.
¶ 54 II. ANALYSIS
¶ 55 On appeal, Gaddis raises four issues. He argues that the trial court erred by failing to vacate a portion of the temporary order because it contained verbiage that had been declared unconstitutional, that the mootness doctrine does not prevent this court from reviewing this issue, that the record fails to support two separate stalking events, and that the trial court judge should have recused herself from the case. Before we turn to the issues in this appeal, we will review the Stalking No Contact Order Act (Act) and relevant case law. 740 ILCS 21/1 et seq. (West 2018).
¶ 56 The Act states that stalking is a serious crime and that victims "experience fear for their safety, fear for the safety of others and suffer emotional distress" and "[m]any victims alter their daily routines to avoid the persons who are stalking them." Id. § 5. The Act provides a process by which a stalking victim can seek a civil remedy barring the offender from being near the victim. Id. Stalking is considered a course of conduct and not a single act, and stalking behavior can include "following a person, conducting surveillance of the person, appearing at the person's home, work or school, making unwanted phone calls, sending unwanted emails, unwanted messages via social media, or text messages, leaving objects for the person, vandalizing the person's property, or injuring a pet." Id.
¶ 57 The Act provides definitions for many terms utilized in the statutory language. Stalking is defined as:
"engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety, the safety of a workplace, school, or place of worship, or the safety of a third person or suffer emotional distress." Id. § 10.
The definition of stalking excludes "an exercise of the right to free speech or assembly that is otherwise lawful." Id. The term "course of conduct" is defined as being:
"2 or more acts, including but not limited to acts in which a respondent directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, or threatens a person, workplace, school, or place of worship, engages in other contact, or interferes with or damages a person's property or pet." Id.
In addition, a course of conduct can include contact by electronic communications. Id. "Emotional distress" is defined as "significant mental suffering, anxiety or alarm." Id. The term "contact" is defined to include:
"any contact with the victim, that is initiated or continued without the victim's consent, or that is in disregard of the victim's expressed desire that the contact be avoided or discontinued, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; placing an object on, or delivering an object to, property owned, leased, or occupied by the victim; and appearing at the prohibited workplace, school, or place of worship." Id.
¶ 58 As indicated, stalking does not include the exercise of the respondent's free speech constitutional rights if the speech is otherwise lawful. Id. However, the Act prohibits speech considered to be threats of violence or intimidation. Henby v. White, 2016 IL App (5th) 140407, ¶ 26 (citing Nicholson v. Wilson, 2013 IL App (3d) 110517, ¶ 20). "When words are a component of the stalking behavior, then the speech does not fall within constitutional protections." Id.
¶ 59 Before January 1, 2019, the Act had a slightly different definition for "course of conduct" as follows:
"2 or more acts, including but not limited to acts in which a respondent directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, or threatens, or communicates to or about, a person, engages in other contact, or interferes with or damages a person's property or pet." (Emphasis added.) 740 ILCS 21/10 (West 2016).
Our legislature amended the statute to eliminate the phrase "communicates to or about" from the "course of conduct" definition effective January 1, 2019. Pub. Act 100-1000, § 5 (eff. Jan. 1, 2019).
¶ 60 The modification of the "course of conduct" definition was enacted by the legislature to reconcile the statute with the Illinois Supreme Court's holding in People v. Relerford, 2017 IL 121094. In Relerford, defendant challenged the constitutionality of the Illinois criminal stalking statute (720 ILCS 5/12-7.3(a), (c) (West 2012)). Relerford, 2017 IL 121094, ¶¶ 28-29. The supreme court concluded that a portion of the criminal stalking statute (720 ILCS 5/12-7.3(a), (c) (West 2012)) was overbroad and impermissibly infringed upon speech that was protected by the first amendment. Relerford, 2017 IL 121094, ¶¶ 63, 78. At issue was section 12-7.3(c) of the Criminal Code of 2012, which defined "course of conduct" as "2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet." (Emphasis added.) 720 ILCS 5/12-7.3(c) (West 2012). The supreme court determined that the phrase "communicates to or about" was overbroad. Relerford, 2017 IL 121094, ¶¶ 63, 78. The court concluded that the "communicates to or about" phrase was severable from the balance of the statute, and accordingly struck the phrase. Id. ¶¶ 65, 78.
¶ 61 In 2019, the First District Appellate Court reviewed a stalking no contact order which prohibited the respondent from" 'communicating, publishing or communicating in any form any writing naming or regarding [the petitioner], his family, or any employee, staff or member of the [petitioner's] congregation.'" Flood, 2019 IL App (1st) 172792, ¶ 24. The appellate court relied upon the holding in Relerford and vacated that portion of the plenary order. Id. ¶ 43. The court found that the trial court's injunctive relief provision did not make it clear that it applied only to otherwise unprotected speech, and that with its broad terms, the order would necessarily prohibit constitutionally protected speech. Id.
¶ 62 A. Unconstitutional Language in Temporary Orders and Mootness Doctrine
¶ 63 The stalking no contact order form utilized in Williamson County at the time Page filed her petition predated the January 1, 2019, statutory change made by the legislature, and thus contained the "communicates to or about" phrase. Thus, the emergency order entered on May 4, 2020, contained that language. However, the plenary order entered on July 31, 2020, did not contain that language.
¶ 64 The issue could be deemed moot because the temporary order containing the language was superseded by the plenary order. An issue is considered moot "where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party." In re J.T., 221 Ill.2d 338, 349-50 (2006). When a decision on the merits would not result in relief to the prevailing party, such a decision is construed as an advisory opinion. In re Barbara H., 183 Ill.2d 482, 490 (1998) (citing Berlin v. Sarah Bush Lincoln Health Center, 179 Ill.2d 1, 8 (1997)).
¶ 65 Illinois courts have held that if a case involves an event of short duration which is 'capable of repetition, yet evading review,' it may qualify for review even if it would otherwise be moot." Id. at 491 (quoting In re A Minor, 127 Ill.2d 247, 258 (1989)). To qualify for this exception, the complaining party must demonstrate that: "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again." Id.
¶ 66 We find that Gaddis meets the first prong in that the challenged action stemming from the May 5, 2020, order that was extended twice on June 3, 2020, and on July 2, 2020, was not able to be fully litigated prior to the expiration dates. Page argued that Gaddis's motions to vacate were premature because the court had not yet heard all the testimony and evidence to determine if Gaddis's speech was constitutionally protected. We find that this argument is somewhat disingenuous because the language at issue in the definition of "course of conduct" had already been declared unconstitutional as being overly broad and impermissibly infringed upon protected speech. Relerford, 2017 IL 121094, ¶¶ 63, 65, 78; Flood, 2019 IL App (1st) 172792, ¶¶ 35, 42, 43. While it is true that if words constitute a threat of violence or intimidation, those words would not be construed as protected speech (see Henby, 2016 IL App (5th) 140407, ¶ 26), Page did not allege that Gaddis made a verbal threat of violence or intimidation toward her. She did, however, claim that Gaddis had verbally abused her. If Gaddis's language constituted a threat of violence or intimidation justifying the court to enter a stalking no contact order, that possibility presented a separate issue from Gaddis's claim that the May 5, 2020, temporary order contained impermissible and unconstitutional verbiage. Page's attorney and the trial court conflated these two distinct issues. We believe that the more prudent action would have been for the court to have struck the words "communicates to or about" from the temporary orders and the two extensions.
¶ 67 Although we conclude that Gaddis successfully established the first prong necessary to consider a moot issue-the challenged action is in its duration too short to be fully litigated prior to its cessation-we find that Gaddis cannot establish the second prong. Here, the evidence in this case shows that there could have been no reasonable expectation that Gaddis would be subjected to the same action again. On May 20, 2020, Gaddis's attorney sent a letter to Judge Brad Bleyer to advise and complain that the preprinted stalking no contact order forms still contained an unconstitutional phrase. On May 21, 2020, Judge Bleyer wrote back and advised that:
"The Williamson County judges have reviewed the language contained in the 'Course of Conduct' definition in the current forms. The language in the current form is not identical to that language contained in the 2019 amended statute. The Williamson County forms will be amended accordingly as we await further direction, information, and instruction on the use of approved forms by AOIC (Administrative offices of the Illinois Courts), the Illinois Supreme Court, and the Conference of Chief Circuit Judges."
While there is no way to predict that someone else will file a stalking no contact emergency petition against Gaddis in Williamson County, Judge Bleyer indicated that the forms would be modified to conform to the amended statutory language. Thus, we find that Gaddis's issue with the original and extended orders is moot.
¶ 68 Similarly, Gaddis's argument that we should consider this issue under the public interest exception to the mootness doctrine also fails. With a public interest exception, the complaining party must establish (1) that the issue raised is of a public nature, (2) that there is a need for an authoritative determination to provide a precedent, and (3) that there is a likelihood of future recurrence of the question. In re Alfred H.H., 233 Ill.2d 345, 355 (2009) (citing People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622 (1952)). Without addressing the first and second elements to the public interest exception, we find that Gaddis cannot meet the third element-that there is a likelihood of future recurrence of the question. On May 21, 2020, Judge Bleyer indicated that the forms would be modified going forward. Therefore, we conclude that there is no likelihood of future recurrence.
¶ 69 B. Two Stalking Events
¶ 70 Gaddis contends that the court's July 31, 2020, plenary order must be vacated because Page did not establish two separate stalking events. We disagree. Gaddis freely admitted that he photographed Page twice. The first time was on April 23, 2020, outside of the Williamson County courthouse, when Page and other courthouse personnel were standing together. The second time was on May 4, 2020, in the Williamson County courthouse employee parking lot when Page was transferring items from her mother's vehicle to her vehicle. Gaddis cites to no Illinois authority that photographing Page in the manner he did cannot be construed as stalking actions.
¶ 71 The definition of "course of conduct" includes "acts in which a respondent directly *** by any action, method, device, or means *** observes, surveils *** a person." 740 ILCS 21/10 (West 2018). Gaddis's use of a camera to capture images of Page on both dates fits into the broad definition of "course of conduct."
¶ 72 Gaddis also contends that Page could not establish that she met the definition of a "reasonable person" or that she suffered "emotional distress." We start with the statutory meaning of the term "stalking." The term "stalking" is defined as "engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety." Id. The definition of a "reasonable person" explains that the court must consider the petitioner's circumstances and knowledge of the respondent and the respondent's prior acts. Id. "Emotional distress" is defined as "significant mental suffering, anxiety or alarm." Id.
¶ 73 In this case, Page witnessed Gaddis's past actions and litigious nature and outbursts in the courts of Williamson County, and she witnessed Gaddis's behavior in and around the courthouse. She testified to this at the plenary hearing, and she further testified that she was frightened of Gaddis and that she viewed him as a threat. These statements were based upon her past knowledge and interactions with him, and the general feeling of uncertainty about Gaddis and his intentions and motivations. Page took her concerns of Gaddis's threat so seriously that she obtained her Illinois concealed carry license. Page also testified to the steps that she takes in the mornings to avoid Gaddis. In meeting her mother to drop off her grandson, she had begun to modify the dropoff point. She also testified that she had to change her routine in parking. She would survey the area to make certain that Gaddis was not there when parking and exiting her vehicle. She would look out the window before leaving work to confirm that Gaddis was no longer in the vicinity. We conclude that Page met the definition of a "reasonable person," and that she suffered "emotional distress" due to Gaddis's actions and her fear of his future actions. We further find that Page met the definition of a stalking victim.
¶ 74 Having determined that Page proved that she was a stalking victim of Gaddis's behavior, we must address Gaddis's claim that photography is constitutionally protected speech. Photography can generally be considered as a constitutionally protected form of speech. See, e.g., United States v. Stevens, 559 U.S. 460 (2010). However, speech, in the form of photography, that constitutes threats of violation or intimidation or is "a component of the stalking behavior *** does not fall within constitutional protections." Henby, 2016 IL App (5th) 140407, ¶ 26.
¶ 75 We have already found that Page was a "reasonable person" and suffered "emotional distress" because of Gaddis's behavior. A simple photograph, albeit taken of a stranger or of his or her vehicle, may not seem to be threatening, violent, or intimidating. Here, Gaddis's habit of photographing workers outside of the courthouse, and workers, law enforcement officers, or complete strangers in or near the courthouse employee parking lot, could seem innocuous. However, we conclude that Gaddis's photography, in the contexts described by Page and the other witnesses at the plenary hearing, constituted a form of stalking behavior. Page felt threatened. On both occasions, she asked Gaddis to stop photographing her, and Gaddis did not comply. Accordingly, we conclude that Page proved two acts of Gaddis's stalking behavior by a preponderance of the evidence. 740 ILCS 21/30 (West 2018); Piester v. Escobar, 2015 IL App (3d) 140457, ¶ 12.
¶ 76 C. Trial Judge Should Have Recused Herself
¶ 77 Finally, the defendant argues that the trial court judge, Judge Amanda Gott, should have recused herself. Gaddis did not file a formal motion, but prior to the second date of the plenary hearing on July 31, 2020, Gaddis's attorney asked the trial judge a series of questions based upon Gaddis's social media searches. He asked the judge if she had sold her building and her former law practice to the attorney representing Page. The trial judge confirmed those sales and confirmed that it was possible that Page's attorney was now representing some of her former clients. Gaddis's attorney then suggested that these facts could suggest that the judge was not impartial or at least display an appearance of impropriety. The judge asked Gaddis's attorney if he was going to file a formal motion. He indicated that he would not file such a motion but wanted this impartiality concern to be "noted" in the record.
¶ 78 Illinois Supreme Court Rule 63(C) (1) provides, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ***." Ill. S.Ct. R. 63(C)(1) (eff. Feb. 2, 2017). None of the five subsections of this rule, which provide specific instances when judicial disqualification is required, are applicable to the facts of this case. Instead, Gaddis and his attorney argue that self-disqualification is required in all situations "involving the appearance of impropriety." (Internal quotation marks omitted.) In re Marriage of O'Brien, 2011 IL 109039, ¶ 43.
¶ 79 The judicial disqualification decision is inherently individualized and cannot be utilized by a party or his or her attorney, as explained by the Illinois Supreme Court in Marriage of O'Brien:
"Whether a judge should recuse himself is a decision in Illinois that rests exclusively within the determination of the individual judge, pursuant to the canons of judicial ethics found in
the Judicial Code. All judges in Illinois are expected to consider, sua sponte, whether recusal is warranted as a matter of ethics under the Judicial Code. The Judicial Code, which is a part of our rules, says nothing that would give the impression that its provisions could be used by a party or his lawyer as a means to force a judge to recuse himself, once the judge does not do so on his own. This point is, in fact, reinforced by the Preamble to the Judicial Code: the Judicial Code is 'designed to provide guidance to judges *** and to provide a structure for regulating conduct through disciplinary agencies,' and its purpose 'would be subverted if the Code were invoked by lawyers for mere tactical advantage.' (Emphasis in original.) Id. ¶ 45 (quoting Code of Judicial Conduct, Preamble).
¶ 80 We have reviewed the record on appeal and considered the argument raised on this issue by Gaddis. We conclude that there is no basis to find that Judge Amanda Gott committed error by not recusing herself halfway through the plenary hearing. As stated above, the determination to recuse or not recuse is up to the trial judge and should not be utilized by a party or a party's attorney as a sword to gain a tactical advantage in a case that was perhaps not progressing as the party desired.
¶ 81 III. CONCLUSION
¶ 82 For the reasons stated in this order, we affirm the judgment of the circuit court of Williamson County.
¶ 83 Affirmed.