dissenting:
I disagree with the majority’s conclusion that Stiles violated Leggett’s order of protection. In my humble opinion, Stiles did not violate Leggett’s order of protection because he lacked the required scienter. Since violating an order of protection is not a strict liability offense (Mandic, 325 Ill. App. 3d at 548), the question for this court is whether the defendant possessed the requisite intent to be found guilty beyond a reasonable doubt.
Section 12 — 30 states: “There shall be a presumption of validity where an order is certified and appears authentic on its face.” 720 ILCS 5/12 — 30 (West 2000). Further, section 215 provides:
“Mutual orders of protection are prohibited. Correlative separate orders of protection undermine the purposes of this Act and are prohibited unless both parties have properly filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order and each remedy granted, and otherwise complied with this Act. In these cases, the court shall hear relevant evidence, make findings, and issue separate orders in accordance with Sections 214 and 221. The fact that correlative separate orders are issued shall not be a sufficient basis to deny any remedy to petitioner or to prove that the parties are equally at fault or equally endangered.” 750 ILCS 60/215 (West 2000).
Here, the defendant had what he believed to be a valid order of protection. At the hearing held on January 12, 2000, Stiles should have informed the trial judge that the paperwork for his order of protection needed to be amended. The defendant should have informed the trial judge that since the time he had initially filled out the paperwork for his order of protection, he had come to learn of the existence of Leggett’s order of protection. This was not done.
Stiles was a layman and not an experienced attorney. It would not be appropriate to hold a layman to the same standards as an attorney. It does not appear that Stiles attempted to fraudulently obtain his order of protection. When he initially filled out the forms for his order of protection, the defendant provided truthful information. However, the defendant was unable to appear before a judge.
The next day at the hearing, Stiles failed to inform the court that he had learned of Leggett’s order of protection. This omission did not appear to be intentional but, rather, the mistake of a layman. Had the court questioned him and he then gave an untrue answer, this would be a different case.
Situations like this, where individuals basically race to the courthouse to acquire ex parte orders of protection, are not uncommon. At the hearing held on January 12, the trial judge should have asked the defendant from the bench if Leggett held a separate order of protection against him. This simple question from the judge would have prevented this situation from occurring. There needs to be an administrative measure taken by trial courts to prevent events like this from happening. Here, because Leggett had only just come to the courthouse six days earlier to get an order of protection, the court clerk remembered her name and related this information to Stiles. Why is this important information not available to the judge who is issuing the orders of protection? Had this occurred, only one order of protection would have been issued instead of two.
When defendant entered Kelly’s Pub, he possessed an order of protection that prohibited Leggett from being there. Even if that order was voidable, it was valid until a judge vacated it. Stiles believed that he could rightfully remain at Kelly’s Pub. The defendant told Leggett that she could not be there based on his order of protection and then he called the police. Under these undisputed facts, the defendant did not violate the Leggett order of protection because he did not have the requisite scienter.
For the foregoing reasons, therefore, I respectfully dissent.