Opposition Brief — Ellizzette McDonald, Petitioner v. Shawn McDonald

No. 22-602

In the

Supreme Court of the United States

__________________

ELLIZZETTE MCDONALD,

Petitioner,

v.

SHAWN MCDONALD, ADMINISTRATOR OF

THE ESTATE OF JOHN W. MCDONALD, III,

Respondent.

__________________

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

__________________

BRIEF OF SHAWN McDONALD

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

__________________

PAUL G. KRENTZ

Counsel of Record

KINNALLY FLAHERTY KRENTZ LORAN

HODGE & MASUR PC

2114 Deerpath Road

Aurora, IL 60506

Phone: (630) 907-0909

Email: PKrentz@kfkllaw.com

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. Did Petitioner waive her right to have this court

hear this case by failing to properly and timely present

a federal constitutional claim in state court.

2. Should this Court interfere with the discretion of

the elected Illinois legislators who enacted a statute

imposing reasonable regulations to determine if it was

in the best interests of John McDonald, III, a disabled

adult, to enter into a marital relationship?

3. Should this Court grant the writ of certiorari of

a case in which Petitioner is precisely the type of

person the Illinois statute was designed to prevent

from entering into a marriage with a disabled person

without following the Illinois statutory procedure to

determine if the marriage would be in John McDonald’s

best interests.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR DENYING PETITION . . . . . . . . . . 6

I.

Petitioner Waived Her Right to Have this

Court Hear This Case by Failing to Properly

Present a Federal Constitutional Claim with

Fair Precision and in Due Time in State

Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

This Court Should Not Interfere with the

Decision of the Elected Illinois Legislature

Who Enacted a Statute Imposing Reasonable

Regulations Before a Ward Can Marry . . . . . 9

III.

Petitioner Is Precisely the Type of Person the

Illinois Statute Was Designed to Prevent

from Entering into a Marriage with a

Disabled Person Without Participating in the

Statutory Best Interest Hearing. . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX

Appendix A Order Appointing Guardian for

Alleged Disabled Person in the Circuit

Court of the Sixteenth Judicial Circuit

Kane County, Illinois

(May 30, 2017) . . . . . . . . . . . . . . . App. 1

iii

Appendix B Report of Guardian Ad Litem in the

Circuit Court for the Sixteenth

Judicial Circuit Kane County, Illinois

(April 18, 2017) . . . . . . . . . . . . . . . App. 4

Appendix C Physician’s Report in the Circuit

Court of the Sixteenth Judicial Circuit

Kane County, Illinois

(March 7, 2017) . . . . . . . . . . . . . . App. 41

Appendix D Certification of Death Record, Edgar

County Clerk & Local Registrar Paris,

Illinois

(January 22, 2018) . . . . . . . . . . . App. 42

iv

TABLE OF AUTHORITIES

CASES

Adams v. Robertson,

520 U.S. 83 (1997). . . . . . . . . . . . . . . . . . . . . . . . . 9

Bankers Life Casualty v. Crenshaw,

486 U.S. 71 (1988). . . . . . . . . . . . . . . . . . . . . . . . . 7

Elk Grove Unified School District v. Newdow,

542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . 15

Haddock v. Haddock,

201 U.S. 562 (1906). . . . . . . . . . . . . . . . . . . . . . . . 9

In Re Estate of Wellman,

174 Ill.2d 335 (1996) . . . . . . . . . . . . . . . . . . . . . . 16

In re Mark W.,

228 Ill.2d 365 (2008) . . . . . . . . . . . . . . . . . . . . . . 12

Karbin v. Karbin, ex rel. Hibler,

2012 IL 112815 . . . . . . . . . . . . . . . . . 10, 12-14, 18

Loving v. Virginia,

388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . 11

Matter of Larimore’s Estate,

64 Ill.App.3d 470 (1978) . . . . . . . . . . . . . . . . . . . 14

Maynard v. Hill,

125 U.S. 190 (1888). . . . . . . . . . . . . . . . . . . . . . . 11

McGoldrick v. Compagnie Generate Transatlantique,

309 U.S. 430 (1940). . . . . . . . . . . . . . . . . . . . . . . . 8

Moore v. Sims,

442 U.S. 415 (1979). . . . . . . . . . . . . . . . . . . . . . . 10

v

Obergefell v. Hodges,

576 U.S. 644 (2015). . . . . . . . . . . . . . . . . . . . . . . 11

State of Ohio, ex.rel. Popovici v. Agler,

280 U.S. 379 (1930). . . . . . . . . . . . . . . . . . . . . . . 10

Turner v. Safely,

482 U.S. 78 (1987). . . . . . . . . . . . . . . . . . . . . . . . 11

Webb v. Webb,

451 U.S. 493 (1981). . . . . . . . . . . . . . . . . . . . . . . . 8

Williams v. North Carolina,

317 U.S. 287 (1942). . . . . . . . . . . . . . . . . . . . . . . 10

Zablocki v. Redhail,

434 U.S. 374 (1978). . . . . . . . . . . . . . . . . 11, 17, 18

STATUTES

28 USC §1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

750 ILCS 5/102(2) . . . . . . . . . . . . . . . . . . . . . . . 15, 16

755 ILCS 5/11-a-3 . . . . . . . . . . . . . . . . . . . . . . . . . . 15

755 ILCS 5/11a-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

755 ILCS 5/11a-3 (b) . . . . . . . . . . . . . . . . . . . . . . . . 11

755 ILCS 5/11a-17(a-10) . . . . . . . . . . . . . . . . . . 14, 18

755 ILCS 5/11a-17(e) . . . . . . . . . . . . . . . . . . . . . . . . 14

755 ILCS 5/11a-18; 755 . . . . . . . . . . . . . . . . . . . . . . 14

755 ILCS 5/11a-19 . . . . . . . . . . . . . . . . . . . . . . . . . . 19

755 ILCS 5/11a-20 . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

755 ILCS 5/11a-22 . . . . . . . . . . . . . . . . . . . . . . . . 3, 14

755 ILCS 11a-17(a-10) . . . . . . . . . . . . . . . . . . . . . 3, 15

2014 Ill. Legis. Serv. P.A. 98-1107 (S.B. 2954)

(WEST) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

STATEMENT OF FACTS

In pages 3-23 of the Illinois Supreme Court opinion

attached to the Petition for Writ of Certiorari as

Appendix A, the pertinent facts of this case relied upon

by the Illinois Supreme Court are set forth. For

convenience, citations to the Illinois Supreme Court

Opinion are indicated as “A” with the corresponding

page number. Four additional documents are attached

to the Appendix of this brief and cited as Exhibits 1, 2,

3 and 4.

On May 30, 2017, Shawn McDonald (“Shawn”), was

appointed plenary guardian over the person and estate

of John McDonald, III (“John”). A3. The guardianship

order (Ex. 1) was based upon a report from Attorney

Fred J. Beer, who served as John’s guardian ad litem

(Ex. 2), and the physician’s report from John’s doctor,

Ramon A. Gonzales. (Ex. 3).

The physician’s report authored by Dr. Gonzales

(Ex. 3) diagnosed John with bipolar disorder with

manic and depressive episodes and severe alcohol use

disorder, which impaired John’s ability to make

reasonable and safe decisions. A4-5. The May 30, 2017,

order (Ex. 1) declared John a disabled person who is

“totally without capacity” as specified in 755 ILCS

5/11a-3. Coupled with John’s refusal to comply with

prescribed treatment, Dr. Gonzalez concluded John

was a high risk of being hurt by others due to his

behavior, or to hurt himself, in addition to not being

able to manage his financial affairs. A5.

John retained counsel to contest the guardianship

action. On July 6, 2017, the court denied John’s motion

2

to vacate the guardianship order and ordered John to

appear at Alexian Brothers Hospital on July 10, 2017,

for further evaluation. A6.

On July 11, 2017, without the prior knowledge or

consent of his guardian or the Court, John participated

in a wedding ceremony with a person who identified

herself as Ellizzette Duvall Minnicelli. A3. A marriage

certificate was issued on July 17, 2017, indicating John

and Ellizzette Duvall Minnicelli were married on July

11, 2017, in Paris, Illinois. No witnesses were listed on

the certificate. A7. Shawn first learned John had

participated in the marriage ceremony of July 11, 2017,

during the contested guardianship hearing on

November 16, 2017. A4.

Attorney Anthony Scifo represented John in the

contested guardianship proceedings. A12. Attorney

Scifo testified he advised John and Ellizzette before

July 11, 2017, that the marriage, if it took place, would

probably be found invalid. A12. Ellizzette admitted

Attorney Scifo had advised her and John before the

wedding the marriage might not be valid. A12.

John died by suicide on December 11, 2017. (Ex. 4)

On December 15, 2017, Shawn filed a petition in the

circuit court of Kane County, Illinois, seeking letters of

administration and on December 19, 2017, the circuit

court appointed Shawn as the administrator and

declaring John’s heirs to be his parents and siblings.

A3.

On December 22, 2017, Shawn filed a petition to

declare John’s marriage invalid because John lacked

capacity to consent to the marriage. A3-4. In response

3

to Shawn’s petition, on January 4, 2018, counsel

entered an appearance for Ellizzette and moved to

vacate Shawn’s appointment as administrator. A7-8.

On March 7, 2018, Shawn voluntarily withdrew his

petition for declaration of invalidity of the marriage

(A8) and filed a response to Ellizzette’s motion to

vacate his appointment as administrator, asserting

John lacked the capacity to enter into a legally valid

marriage because he was a disabled ward subject to

plenary guardianship, citing sections 11a-17(a-10) and

11a-22(b) of the Illinois Probate Act. A8.

Shawn asserted that marriage is a contract, the

marriage contract entered into between John and

Ellizzette on July 11, 2017, was void and the marriage

invalid. A9. Ellizzette replied asserting Section 11a22(b) of the Illinois Probate Act was inapplicable to a

marriage contract. A9.

Thereafter discovery

commenced.

Shawn sought discovery and documentation from

Ellizzette regarding her identity. A10.

Ellizzette was deposed and shown copies of a

marriage license application, marriage license and

marriage certificate, each listing Ellizzette Duvall

Minnicelli as the bride. A10. Each of the documents

indicated Ellizzette Duvall Minnicelli was born in

France on March 21, 1964, and she was a “physician

scientist”. A10-11. Throughout discovery Ellizzette

failed to produce any documents to verify any

information, nor did she establish her identity as

Ellizzette Duvall Minnicelli. A11. She refused to

acknowledge a birth certificate suggesting Ellizzette

4

was born Lisa Ann Blaydes on March 21, 1963, in Cook

County, Illinois. A11. She admitted she had been

known by other names, i.e., Lisa Blaydes-Zollner,

Ellizzette Blaydes Duvall, Ellizzette Anne Maureen

Minnicelli, Ellizzette A.M. Duvall and Ellizzette Anne

Maureen McDonald. A11-12. She did not provide any

evidence of marriages, divorces or applications for

name changes. A12. At no time did Petitioner establish

her true identity.

After Ellizzette’s deposition, Shawn petitioned the

court for an order requiring Ellizzette to submit to

fingerprinting so her identity could be established. A12.

The court ruled Ellizzette would be required to submit

to fingerprinting if she continued to pursue her petition

to be named administrator of the estate. A13.

On November 20, 2018, the court took judicial

notice of the marriage documents. A14. The court also

ordered Ellizzette to present herself at the Sheriff’s

office within 60 days for fingerprinting. A14. After

three attempts to obtain fingerprints, no usable prints

were ever acquired. A14.

On February 13, 2019, Shawn filed a request that

the court take judicial notice of a Doximity file on an

account for Ellizzette Duvall. A15. Doximity is an online networking service for medical professionals.

According to Doximity’s findings, Ellizzette’s

professional file could not be substantiated, therefore

her account was deemed a fake. A15.

On February 15,

withdrew. A14-15.

2019,

Ellizzette’s

counsel

5

On March 18, 2019, Ellizzette filed her pro se

appearance. A16. On April 10, 2019, Ellizzette’s

previous counsel filed a new appearance on her behalf

but withdrew for a second time on September 18, 2019.

A16.

In August 2019, Shawn moved the court to take

judicial notice of court records indicating on November

26, 2001, felony charges were brought against

Ellizzette Duvall a/k/a Lisa Blaydes in New York for

falsifying business records, unauthorized use of a

professional title and forgery based upon Petitioner

misrepresenting herself as a doctor. A16. She pled

guilty to misdemeanor forgery. A16. On October 23,

2019, the court granted the motion taking judicial

notice of the New York state court documents. A16.

The trial proceeded on November 18, 2019. A17.

At the trial, the only issue was Petitioner’s claim

she was John’s surviving spouse and sole heir. A18.

The trial court granted a directed finding for Shawn

and against Petitioner, stating the issue was “the

validity of the marriage, the ceremony, the contract,

and whether such a marriage – if it was conducted

according to Illinois law, or could have been conducted

under the Probate Act when it happened – if it

happened.” A22. The court then stated that the

minimum relevant evidence necessary to establish a

prima facie case of a valid marriage was “a valid

application for a marriage license, a ceremony

performed in Edgar County and witnessed by two

witnesses.” A22. The court then concluded that, as a

matter of law, Petitioner did not present a prima facie

6

case of a valid marriage. Specifically, the court held the

marriage was not properly witnessed nor licensed and

that no best-interest determination was made by the

Probate Court. A23. The Illinois Appellate Court

reversed the trial court (2021 ILApp(2d) 19113). The

Illinois Supreme Court reversed the Appellate Court

(2022 IL 126956), and concluded Petitioner was never

the spouse of John McDonald, III.

REASONS FOR DENYING PETITION

I.

Petitioner Waived Her Right to Have this

Court Hear This Case by Failing to

Properly Present a Federal Constitutional

Claim with Fair Precision and in Due Time

in State Court.

In her Petition for Writ of Certiorari, Petitioner

identifies the question presented as whether a state

statute impermissibly interferes with the fundamental

rights of a ward to marry under the Equal Protection

and Due Process clauses of the Fourteenth

Amendment. No state court ever addressed the federal

claim Petitioner is asking this Court to decide.

The words “Equal Protection, Due Process Clause

and Fourteenth Amendment” do not appear a single

time in the Illinois Supreme Court Decision (2022 IL

126956); the Second District Appellate Court Decision

(2021 ILApp(2d) 19113); or in the trial court. The first

time Petitioner advanced the argument the state

statute impermissibly interfered with John’s right to

marry was in her cross reply brief filed in the Illinois

7

Supreme Court on September 22, 2021.1 The

constitutional issue raised in the Petition for Writ of

Certiorari was never raised in the trial court, nor at

any time in the Appellate Court. There are no

references to the constitutional issue raised in the

petition for Writ of Certiorari in the Appellate Court

brief she filed on June 3, 2020, or her reply brief filed

on August 26, 2022. Likewise, the constitutional issue

raised in the Petition for Writ of Certiorari was not

mentioned in her initial brief filed with the Illinois

Supreme Court on August 4, 2021. The fact is,

Petitioner failed to properly present a constitutional

claim with fair precision and in due time in state court,

which is why the state courts never addressed any

constitutional claim. The federal issue petitioner asks

this court to decide was not pressed and passed on by

the state court, so the petition should be denied.

Bankers Life Casualty v. Crenshaw, 486 U.S. 71 (1988).

By not affording the state court the opportunity to

decide the constitutional claim until the case had been

decided impugns the Illinois Supreme Court’s

undeniable interest in construing an Illinois statute.

Certiorari jurisdiction over decisions from State

courts emanates From 28 USC par. 1257. And, as this

court stated in interpreting that statute, “ . . . But it is

also the settled practice of this court, in its exercise of

appellate jurisdiction that it is only in exceptional

cases, and then only in cases coming from federal

courts, that it considers Questions urged by a

petitioner or appellant not pressed or passed Upon in

1

Copies of the Illinois Appellate Court and Illinois Supreme Court

briefs are available on Westlaw.

8

the court’s below . . . In cases coming from state courts

in which a state statute is assailed as unconstitutional

there are reasons of peculiar force which lead us to

refrain from deciding questions not presented or

decided in the highest court of the state whose judicial

action we are asked to review. Apart from the

reluctance which every court should have to set aside

legislation as unconstitutional on grounds not properly

presented, due regard for the appropriate relationship

of this court to state courts requires us to decline to

consider and decide questions affecting the validity of

state statutes not urged or considered there. It is for

these reasons that this Court, where the

constitutionality of a statute has been upheld in the

state court, consistently refuses to consider any

grounds of attack not raised in that court . . .”

McGoldrick v. Compagnie Generate Transatlantique,

309 U.S. 430, 434-435 (1940).

The admonition in that opinion applies here. The

Illinois Supreme Court upheld the best interest

requirement of a state statute applicable to

guardianship proceedings. It was not asked to construe

any federal constitutional claim. Petitioner never

challenged the court’s ruling on the grounds she

advances after the ruling was made.

Finally, 28 USC ¶1257 serves the important

interest of comity. This Court has observed that it

would be untoward in our dual system of government

to alter the finality of state judgments on a federal

ground that the state court did not have the occasion to

consider. Webb v. Webb, 451 U.S. 493, 500 (1981). The

rule afford state courts with the opportunity to consider

9

the constitutionality of state officials’ actions and

equally important proposed changes that could obviate

any challenges to state action. Adams v. Robertson, 520

U.S. 83, 90 (1997).

This Court should adhere to the rule in reviewing

state court judgments under 28 USC §1257, and deny

the Petition for Writ of Certiorari because Petitioner’s

federal claim was not addressed or properly presented

to the state court that rendered the decision this Court

was asked to review. Adams v. Robertson, 520 US 83,

86-88 (1997).

II.

This Court Should Not Interfere with the

Decision of the Elected Illinois Legislature

Who Enacted a Statute Imposing

Reasonable Regulations Before a Ward Can

Marry.

Historically, this Court has a constitutional policy

that leaves domestic relation laws largely to the

discretion of the elected state legislatures. The reason

the federal government has deferred to the state law

policy is that states, at the time of the Constitution’s

adoption, possessed full power over the subject of

marriage and divorce . . . and the Constitution

delegated no authority to the government of the United

States on the subject of marriage and divorce. The

Constitution says nothing about marriage. Haddock v.

Haddock, 201 U.S. 562, 575 (1906). The significance of

state responsibilities for the definition and regulation

of marriage dates to our Nation’s beginnings. When the

Constitution was adopted, the common under-standing

was that the domestic relations of husband and wife

and parent and child were matters reserved to the

10

states. State of Ohio, ex.rel. Popovici v. Agler, 280 U.S.

379, 383-384 (1930).

Consistent with this allocation of authority, this

Court, throughout history, has deferred to state law

policy decisions with respect to domestic relations.

Moore v. Sims, 442 U.S. 415 (1979). As Justice

Rehnquist observed in Moore, “State courts are the

principal expositors of state law”. The state of Illinois’

policy – to protect disabled adults - has evolved from

Karbin v. Karbin, ex.rel., Hibler, 2012 IL 112815, a

judicial rule, which the Illinois General Assembly

adopted in the current best interest law. The policy is

clear and provides for a judicial hearing on whether it

is in the best interests of a disabled adult to marry.

The recognition of civil marriage is central to state

domestic relations laws applicable to its residents and

citizens and their elected representatives. Williams v.

North Carolina, 317 U.S. 287, 298 (1942). Each state,

as a sovereign, has a rightful and legitimate concern in

the marital status of persons domiciled within its

borders. The definition of marriage of the foundation

of the state’s broader authority to regulate the subject

of domestic relations with respect to the protection of

offspring, property interests, and the enforcement of

marital responsibilities. Ibid.

Several times throughout history, this Court has

gotten involved in cases to determine whether the state

laws or regulations defining and regulating marriage

impermissibly interfered with the constitutional rights

of persons to marry. Those instances are not similar to

the present case. The cases in which this Court has

elected to issue opinions involved a statute prohibiting

11

persons from getting married because they were an

interracial couple (Loving v. Virginia, 388 U.S. 1

(1967)); a statute prohibited a groom from being

married if he was not current in paying child support

(Zablocki v. Redhail, 434 U.S. 374 (1978)); a prison

regulation preventing inmates from getting married

(Turner v. Safely, 482 U.S. 78 (1987)); and statutes

refusing to acknowledge the validity of same-sex

marriages (Obergefell v. Hodges, 576 U.S. 644 (2015)).

Marriage has always been subject to the control of

state legislatures . . . rights under it are determined by

the will of the sovereign as evidenced by law. Maynard

v. Hill, 125 U.S. 190, 205, 211 (1888). This Court has

ruled that the government may impose reasonable

regulations that do not significantly interfere with

decisions to enter into the marital relationship.

Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

In the present case, when John McDonald was

declared incompetent by the court because of his

mental condition, John became entitled to heightened

protection.

The essence of a guardianship under Illinois law is

to protect the most vulnerable members of our society

from neglect, exploitation, and abuse. 755 ILCS

5/11a–3 (b). John McDonald was one such individual.

The law harbors vigilance for those who need it most.

Only when a best interest determination as to a ward’s

decision to marry is required, can this promise of

prudent protection be kept while simultaneously

preserving the integrity of marriage and safeguarding

family relationships.

12

In Illinois, the promise of vigilant protection

originates from the fact disabled individuals are

recognized and viewed as a “favored person in the eyes

of the law”. Karbin v. Karbin, ex rel. Hibler, 2012 IL

112815, ¶45 (quoting In re Mark W., 228 Ill.2d 365,

374-375 (2008)). At issue in Karbin was whether a

guardian had standing under the Illinois Probate Act

to institute marital dissolution proceedings on behalf of

the ward. Id. Similar to Shawn’s appointment as

plenary guardian of his brother John, the guardian in

Karbin also served in a dual capacity over her mother’s

person and estate. Id. at ¶22. The analysis in Karbin

commenced with an overview of the Illinois Probate

Act’s adult guardianship provisions noting a guardian

is required to act in the ward’s best interests in all

instances with the guardianship to be utilized only as

necessary to promote the well-being of the disabled

person, to protect him from neglect, exploitation, or

abuse. Id. at ¶12.

The outcome in Karbin was justified by noting the

difficulty accepting the view that the decision to divorce

is qualitatively different than the other deeply personal

decisions a plenary guardian has the decision-making

capability of, such as the decision to refuse lifesustaining treatment or the decision to undergo

involuntary sterilization, both of which can rarely be

undone. Id. at ¶42. Whereas with respect to the

decision to divorce, a disabled adult could regain

competency making remarriage to the former spouse

possible. Id. Such is the case here, where John could

have regained competency dispensing with the need for

a best interest hearing prior to entering into marriage

with Ellizzette.

13

In direct response to this Court’s decision in Karbin,

the Illinois Legislature enacted §11a-17(a-10) in the

Illinois Probate Code. 2014 Ill. Legis. Serv. P.A.

98-1107 (S.B. 2954) (WEST). The section is directed

toward the scenario of a ward who seeks to marry

another while under a guardianship and provides as

follows:

Upon petition by the guardian of the ward’s

person or estate, the court may authorize and

direct a guardian of the ward’s person or estate

to consent, on behalf of the ward, to the ward’s

marriage pursuant to Part II of the Illinois

Marriage and Dissolution of Marriage Act if the

court finds by clear and convincing evidence that

the marriage is in the ward’s best interests. In

making its determination, the court shall

consider the standards set forth in subsection (e)

of this Section. Upon presentation of a court

order authorizing and directing a guardian of

the ward’s person and estate to consent to the

ward’s marriage, the county clerk shall accept

the guardian’s application, appearance, and

signature on behalf of the ward for purposes of

issuing a license to marry under Section 203 of

the Illinois Marriage and Dissolution of

Marriage Act. 755 ILCS 5/11a-17(a-10).

The Illinois General Assembly’s heightened concern

for the security of a ward is illustrated through the

requirement of clear and convincing evidence as the

quantum of proof as to determining whether a

marriage would be in the ward’s best-interest. The

burden of proof is the equivalent of showing such

14

evidence that leaves no reasonable doubt in the mind

of the trier of fact. Matter of Larimore’s Estate, 64

Ill.App.3d 470 (1978).

Although the facts of Karbin involved the decision

of a disabled ward to divorce, John’s decision to marry

is indistinguishable. Like the decision to divorce, the

decision to marry is among the most significant

undertakings a person makes in their life. The decision

carries with it a wide range of repercussions and

consequences involving rights, duties and

responsibilities. The prospect of financial exploitation,

physical or emotional abuse, and neglect can be the

unfortunate end-product of such decisions hastily made

without careful, prior examination. This risk is

magnified when one of the parties seeking to get

married is subject of a plenary guardianship and the

plenary guardian and court are not involved in the

decision making. Longstanding family relationships

such as the ones John’s parents and siblings shared

with him can be upended and usurped by another

claiming to be the spouse and rightful heir to the

disabled ward’s estate. Scenarios such as these are

precisely what a plenary guardianship seeks to avert.

755 ILCS 5/11a-18; 755 ILCS 5/11a-22. By enacting 755

ILCS 5/11a-17(a-10), the Illinois General Assembly

created a procedural tool for courts in Illinois to

prevent such devastating outcomes and ensure the

consequential decision to marry would first involve

carefully examining whether embarking on such a

course is in the ward’s best-interest. 755 ILCS 5/11a17(e).

15

The Illinois requirement of a best-interest hearing

not only endorses this declaration of safeguarding a

ward into practice, it strengthens and preserves the

integrity of marriage and safeguards family

relationships which is also the stated purpose of the

Illinois Marriage Act. 750 ILCS 5/102(2).

Illinois, for good reasons, created the requirement

of a best interest hearing before wards can marry. The

Illinois procedure is a reasonable process designed to

protect wards which does not significantly interfere

with ward’s decisions to enter into the marital

relationship. As acknowledged by this Court many

times before, one of the principal areas in which this

Court has customarily declined to intervene is the

realm of domestic relations. Elk Grove Unified School

District v. Newdow, 542 U.S. 1, 12 (2004). This Court

should defer to the discretion of the Illinois elected

legislature and deny the Petition for Writ of Certiorari.

III.

Petitioner Is Precisely the Type of Person

the Illinois Statute Was Designed to

Prevent from Entering into a Marriage

with a Disabled Person Without

Participating in the Statutory Best Interest

Hearing.

As set forth in Section II of this brief, Illinois has a

paramount interest in reasonably doing what it can to

protect its wards from neglect, exploitation, and abuse.

755 ILCS 5/11-a-3. One of the things done by the

Illinois legislature to protect its wards was to pass a

statute calling for a best interest hearing before a

disabled person can marry. 755 ILCS 11a-17(a-10).

16

Discovery obtained during the lawsuit resulted in

Petitioner failing to prove her identity. The falsehoods

contained in the marriage documents submitted by

Petitioner, of which the trial judge took judicial notice,

were notable. Petitioner’s name, birth year and place of

birth listed on the marriage documents were all

inconsistent with the information listed on her birth

record obtained from the Cook County Clerk. She was

born with the last name “Blaydes”, not Duvall; She was

born in 1963, not 1964; she was born at Holy Family

Hospital in DesPlaines, Illinois, not Lyon, France. Her

listed occupation as a physician scientist was a lie for

which she was prosecuted in New York for falsely

representing herself as a doctor. Even the location of

the purported ceremony occurring in Paris, Edgar

County, Illinois, was invented. The wedding officiant

testified he had no knowledge of a person by the name

of Ellizzette Duvall Minnicelli, which was the name

appearing on the marriage license application he

purportedly signed.

Falsifying factual information on a marriage license

related to a person’s name, date of birth, place of birth,

occupation and location of the purported marriage does

not strengthen and preserve the integrity of the

marriage and safeguard family relationships which is

the stated purpose of the Illinois Marriage Act. 750

ILCS 5/102(2).

The vigilant protection wards are entitled to during

their life naturally extends to their estates. In Re

Estate of Wellman, 174 Ill.2d 335, 348 (1996). It cannot

be disputed that John, given his mental limitations,

needed his guardian to protect him.

17

The April, 2017 Guardian ad litem report of

Attorney Fred Beer(Ex. 2) is telling, thorough, and

disregarded by Petitioner. Not only does it memorialize

the saga of John’s substance abuse and mental health

challenges, but clearly states that John agreed he

needed a guardian. Also, the timeline (2014-2017)

created by the then Guardian, now Administrator, of

John’s conduct manifests his brother’s severely

troubled history of addiction, extravagant spending,

and the fact he had not been employed in many years

(Ex. 2). Together, these two records, in conjunction

with the physician’s report of Dr. Gonzalez (Ex. 3),

make it evident that a guardianship was a necessity

and in John’s best interest.

Petitioner, apparently, asks this Court to invalidate

an Illinois statutory scheme that safeguards a disabled

adult’s decision to enter into a marriage contract. Such

a request is illusory. Petitioner had the ability to

comply with the statute’s best interest hearing

requirement before she entered into any purported

marriage ceremony with John. John’s attorney,

Anthony Scifo told her and John that any marriage

they entered into after the guardianship order was

entered was probably invalid. She ignored that advice.

Petitioner’s calculated conduct and multiple personages

in her interaction with a disabled adult, a person the

Illinois statute and guardianship sought to protect,

could never give rise to a federal constitutional claim.

Shawn, as Administrator argued in the Illinois

Supreme Court the efficacy of this Court’s opinion in

Zablocki v. Redhail (1978) 434 U.S. 374. Justice

Marshall succinctly opined that every state regulation

18

(like the Illinois best interest statute) which relates to

the incidents and prerequisites to a valid marriage

must not be subjected to rigorous scrutiny. He stated,

“. . . Reasonable regulations that do not significantly

interfere with decisions to enter the marital

relationship may be legitimately imposed. . .” Zablocki,

at 374, 386.

The Illinois statue requiring a “best interests”

standard is a reasonable rule since it not only

addresses the needs of a disabled adult with limited, if

any, decision making ability, but also permits a

marriage to occur if a judicial officer, after an

evidentiary hearing, finds that a marriage is in the

disabled adult’s best interest. This policy was

previously created, and therein endorsed, by the

Illinois Supreme Court in Karbin. The Illinois statue

adopted the Karbin protocol. The focus of the statute is

that a knowing, voluntary act is undertaken which

benefits the disabled adult.

Given the remarkable scheme of Petitioner to hide

and conceal her background, it is not surprising

Petitioner ignored the advice of Attorney Scifo and

proceeded to participate in the marriage ceremony,

knowing the marriage would likely be deemed invalid.

If Petitioner’s background had been introduced into

evidence at a best interest hearing, 755 ILCS 5/11a17(a-10), could Petitioner reasonably have expected any

judge would approve of the marriage as being in John’s

best interest? Of course not.

Petitioner’s argument that wards are prohibited

from getting married because the statute requires the

guardian to request the best interest hearing is not

19

entirely accurate. If John wanted to marry Petitioner

and his guardian refused to ask for a best interest

hearing, John or Ellizzette could have filed a motion to

modify the guardianship pursuant to 755 ILCS 5/11a19 or communicated with the court or judge by any

means, including but not limited to informal letter,

telephone call or a visit to investigate whether the

termination of guardianship was appropriate. 755

ILCS5/11a-20.

It is hard to imagine a factual situation which cries

out louder for the need of a best interest hearing prior

to a marriage.

Based upon the facts of this case, this Court should

deny the Petition for Writ of Certiorari.

CONCLUSION

This Court should deny the Petition for Writ of

Certiorari because:

1. Petitioner waived her federal claims by failing to

properly present the federal claims in state court;

2. Marriage has always been subject to the control

of the state legislatures and the Illinois Probate statute

does not unreasonably interfere with the decision of a

ward to enter into a marital relationship.

3. John McDonald was disabled and in need of a

plenary guardian and from a factual standpoint, John

was in the classic situation of a ward who needed a

best interest hearing before being allowed to marry

Petitioner.

20

WHEREFORE, the Respondent, Shawn McDonald,

respectfully requests that the Petition for Writ of

Certiorari be denied.

Respectfully submitted,

PAUL G. KRENTZ

Counsel of Record

KINNALLY FLAHERTY KRENTZ LORAN

HODGE & MASUR PC

2114 Deerpath Road

Aurora, IL 60506

Phone: (630) 907-0909

Email: Pkrentz@kfkllaw.com