Just what does the FBI investigate?

From the FBI website at http://www.FBI.gov you can learn that a major field of importance to their investigations are 10 areas including:

Click on “about us” and there is this list:

5. Civil Rights
– Hate Crime
– Human Trafficking
– Color of Law

4. Public Corruption
– Government Fraud

7. White-Collar Crime ….
– Financial Institution Fraud & Failures
– Health Care Fraud
– ..
– Mortgage Fraud
– Piracy/Intellectual Property Theft

(that is interesting, GJS has alerted the FBI to theft of her IP and nothing is done)

But the basic claim, one which has been submitted over and over in the Sykes case and Wyman is the court acting without jursidiction for over 3 years and nothing is done.  Ken and I complain vociferously like banshees and the ARDC shoots the messengers and lets the miscreants go.

All of the above torts and claims are present in the following cases: Tyler, Bedin, Sykes, Gore, Wyman–it it reported over and over to the authorities and nothing is done.

How long do these victims have to wait?

And I can’t do it all by myself — even with the wonderful assistance of Ken and the victims. So what i am asking is if you can make a donation, no matter how small, it will go to helping me help the victims.  I now keep track of all this pro bono work to the victims of court corruption that I have encoutered calling this “cost of corruption” and that is up to $273,000 through August 31, 2012.  Cases like Wyman need to be funded.  (Litigation funding is very, very lucrative at 2% per month interest, so consider signing up).

I plan on delivering books to the FBI next week on the Wyman case to reflect their recollection that the Wymans are suffering and terrorized by an out of control court acting for 3 years under “color of statute”.  I hope they can help, but so far, it’s just me and Ken.  I can’t begin to tell you how many attorneys I have encountered just look the other way and walk away from this horrid mess claiming, “it’s too difficult”, “you can’t go up against THAT”, “probate court is the worst court in the system for getting screwed over–don’t get involved in any difficult case there, you’ll just end up breaking your heart when you see what goes on.”–all from seasoned, experienced attorneys!  Years and years of experience.

Too late for that.

Below is “How to file a Complaint” with the FBI

Filing a Complaint

To file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following information should be provided:

  • All identifying information for the victim(s);
  • As much identifying information as possible for the subject(s), including position, rank, and agency employed;
  • Date and time of incident;
  • Location of incident;
  • Names, addresses, and telephone numbers of any witness(es);
  • A complete chronology of events; and
  • Any report numbers and charges with respect to the incident.

You may also contact the United States Attorney’s Office in your district or send a written complaint to:

Assistant Attorney General
Civil Rights Division
Criminal Section
950 Pennsylvania Avenue, Northwest
Washington, DC 20530

FBI investigations vary in length. Once our investigation is complete, we forward the findings to the U.S. Attorney’s Office within the local jurisdiction and to the U.S. Department of Justice in Washington, D.C., which decide whether or not to proceed toward prosecution and handle any prosecutions that follow.

Calling for YOU to request an investigation.

While Ken and I are apparently in deep doo doo for asking our elected and non elected officials to just do their jobs (and I hope in doing so, we will be vindicated of our “horrible crimes” which sit squarely on top of our First Amendment rights of free speech), apparently you can go right to the US Department of Justice website and file a complaint if you know that a disable senior is being discriminated against.  That’s right, just go to http://www.usdoj.gov and click on file a complaint.

Below is one that someone filed today on behalf of Mary Sykes and you can all use it as a format.  All the work is done for you and please thank Nancy, one of my faithful readers for doing that for us all.

U.S. Department of Justice
Civil Rights Division
Disability Rights Section

OMB No. 1190-0009 

Title II of the Americans with Disabilities Act
Section 504 of the Rehabilitation Act of 1973
Discrimination Complaint Form 

Instructions: Please fill out this form completely, in black ink or type. Sign and return to the address on page 3.

Complainant: Nancy Vallonehorizontal divider

Address: 503 Lafayette Avehorizontal divider

City, State and Zip Code: Niles, OH 44446horizontal divider

Telephone: Home: 330-979-1398


Person Discriminated Against:
(if other than the complainant)   Mary Sykeshorizontal divider

Address: 527 Grineshorizontal divider

City, State, and Zip Code: Naperville, IL 60631horizontal divider

Telephone: Home: unknown


Government, or organization, or institution which you believe has discriminated:

Name:  Cook county Illinois Probate Court and Guardian ad leitem

Address: Cynthia farenga 1601 Sherman Ave #200, Evanston Il 60201 and Adam Stern 105 West Adams St #3800, Chicago, Il 60603  and Cook County Probate Court 50 West Washington Street Room 1202, Chicago , IL 60602horizontal divider

County:Cook Countyhorizontal divider

City:Chicagohorizontal divider

State and Zip Code:Illinois 60602horizontal divider

Telephone Number: Farenga-847-475-1300 Stern-312-789-5730  Probate Ct-(312) 603-6441

horizontal divider

When did the discrimination occur? Date: Started 3 years ago until current timehorizontal divider

Describe the acts of discrimination providing the name(s) where possible of the individuals who discriminated (use space on page 3 if necessary):horizontal divider

When Mary found out what occurred she tried to unwind the transaction.
Mary first tired to obtain copies of the documents that she signed but the older daughter and the attorney refused her copies.
Thereupon Mary sought help from the civic authorities and she went to the Court to obtain an order of protection.
The daughter countered with an incompetency proceeding.

755 ILCS 5/11a – 10 –NOTICE REQUIRED No one is concerned there was no 14 day prior notice required by statute every order ended is void.  Mary was never properly served with a summons and complaint prior to hearing, she was not permitted to speak up in court and ask for an attorney of her choosing, numerous hand written notes, video taped and accessible on the web were ignored or disregarded in court.  Her sisters were not served 14 days advance notice of the time, date and place of hearing as required by the Illinois Probate Act in order for the court to attain jurisdiction.  Accordingly, Mary is living without her human rights, civil rights, choice of residence, choice of attorney (Ken Ditkowsky represented her and was her family attorney for years, she specifically asked for him, when he appeared in court, he was slapped with sanctions by the court–but these were later vacated by the Illinois Court of Appeals)

We believe that she lives under the constant threat of being placed in a nursing home to live in a pool of her own urine never to see the light of day again because nursing home residents are rarely allowed outside.
The younger daughter has not been allowed communicates with her mother for periods in excess of six months.   A younger sibling (of Mary’s age 80 plus) has been denied communication with her sister (Mary) for extremely long periods of time.  Before this, the siblings talked on the phone almost daily and visited monthly and at all holidays. Three years have gone by and no effort has been successful in obtaining Mary’s liberty rights, property rights, civil rights or human rights.
Retaliation , punishment, fines occurs if Any one questioning the Court for acting without jurisdiction and in concert with Farenga, Sterrn the GALS and the plenary guardian in intentionally denying senior citizen Mary Stern of her liberty, her property, civil and human rights.     Mary Sykes for three years has been in such condition!

Gold coins valued at approximately a million dollars (or more) have not been inventoried.  Cash that was in a mattress has not been inventoried (most likely $50,000 or more)

She’s living by force in a home and isolated from all.  She is drugged and denied assess to any person she trusts or loves in order to stop her from crying foul. She has been prevented from practicing her religion, attending civic activities, garden club, historical society, et al. Before she was kidnapped on June 9 2009 she lived a full and complete life and cooked, banked, and even marched in the local parades: she walked at least two mikes a day and cared for her own dog and now is told she never had a dog .
She had mini stokes years ago and more recently under Toerpes (the Plenary Guardian’s) care. So the court made her appear to be dementia the Altzheimers type by retaining one of their tied in physicians who rubber stamps every guardianship.  Video tape evidence posted on the internet AFTER her guardianization shows she is clearly thinking, knows what she wants and knows who she wants as her guardian (the other daughter who cared for her for years and is her proper POA).horizontal divider

horizontal divider

Have efforts been made to resolve this complaint through the internal grievance procedure of the government, organization, or institution?

Yes___x___ No______

If yes: what is the status of the grievance? I believe so and specific information can be obtained from Mary’s Advocates Ken Ditkowski 5940  w Touthy Ave Niles, Illinois phone 847-600-3421 email kenditkowski@yahoo.com and JoAnne Dennison 1512 N. Freemont St, #202 Chicago, IL 60642-2694 phone 773-255-7608 email joanne@denisonlaw.com.

horizontal divider

horizontal divider

Has the complaint been filed with another bureau of the Department of Justice or any other Federal, State, or local civil rights agency or court?

Yes______ No___x___

If yes:

as a private citizen and friend none that i’m aware ofhorizontal divider

Do you intend to file with another agency or court?

Yes______ No__x____

Signature: Nancy L Vallone RN, BSN, MSN, CNS, Advocate

Date: 12-27-2012


Return to:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights – NYAV
Washington, D.C. 20530

Paperwork Reduction Act Statement:
A federal agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Public burden for the collection of this information is estimated to average 45 minutes per response. Comments regarding this collection of information should be directed to the Department Clearance Officer, U.S. Department of Justice, Justice Management Division, Office of the Chief Information Officer, Policy and Planning Staff, Two Constitution Square, 145 North Street, N.E., Room 2E–508, Washington, D.C. 20530.

OMB No. 1190-0009. Expiration Date: May 31, 2015.

Why don’t the news media outlets pickup stories on Sykes, Bedin, Tyler, Gore, etc.?

From: kenneth ditkowsky
Sent: Dec 27, 2012 9:27 AM
To: Nancy Vallone , GJS
Cc: Chicago Tribune , “David (NBC Universal WRC) Silver” , SUNTIMES , Cook County Sheriff , states attorney , scott evans , JoAnne M Denison , NASGA , Tim Lahrman NASGA , probate sharks , matt senator kirk , mary wooley state police , mary richards
Subject: Re: Sykes info

 December 27, 2012
Memo:  Wall Street Journal and other media outlets
To whom it may concern:
I read the Wall Street Journal Article decrying the attempt to censor and charge newsman David Gregory with a crime.     The editorial was impressive and correct.    The core of American culture is the First Amendment.   Unfortunately, I was struck by the fact that no one is interested in the fact that right here in Chicago – Gloria Sykes, who authored several books including Shattered Sense of Innocence and produced several documentaries – is fighting alone against avenging miscreants who appear to have the complete backing of the Circuit Court of Cook County in denying her First Amendment Rights.
In an attempt to prevent Gloria Sykes from doing an expose of corruption in the Probate Division of the Circuit Court of Cook County, Illinois Ms. Sykes has been subjected to unspeakable abuse.    This abuse has been previously detailed in e-mails that various citizens have forwarded to the local media outlets.   Indeed, the local media outlets have received anguished calls to help Ms. Sykes and no one is interested.    This situation is common – but not the subject of this memo.
 Ms. Sykes commenced her crusade after her mother complained of her older daughter’s financial exploitation.    In a failed attempt to help her mother escape the ravages of ‘Elder Abuse” and “Financial Exploitation of the Elderly”  journalist Gloria Sykes waded into the fray with both feet.  Like other family members of victims, Ms. Sykes has been demonized, defamed, and discriminated against in an effort to ‘shut her up!’       The most recent outrage is still pending in the Circuit Court.    The particular outrage that the media ought to be concerned involves the use of the ‘color of statute’ to separate a journalist from her research, her data, her notes and her intellectual property.
In an effort to prevent Ms. Sykes from continuing her efforts to author a publication and produce a documentary on the issue of ‘government supported elder abuse’ and expose a ‘Greylord’ type scandal, Ms. Sykes was subjected to what appears to be a totally improper ‘forcible entry and detainer action. (color of statute)     Whether the legal proceeding was proper or not is matter for the Courts; however, the collateral activities are not.     Ms. Sykes was beaten by the husband of the de facto plenary guardian for her mother and her notes, her research, her data, and her work product were stolen during the eviction.    [It should be noted that the order of eviction is reported as removing Ms. Sykes from the 2nd floor apartment located on the premises.    Ms. Sykes occupied the entire building and had for many years.
It is obvious that the focus of the eviction was to gain access to Ms. Sykes valuable intellectual property – i.e. the transcripts of proceedings that detail the fact that for more three years the Circuit Court of Cook County has not had jurisdiction as the original proceedings to declare Ms. Mary Sykes disabled did not comport to the Illinois legislative scheme.    The censorship effort was successful as most of the intellectual property associated with Ms. Sykes’ journalistic efforts vanished.   In an effort to garner the intellectual property the miscreants caused Ms. Sykes was beaten as stated aforesaid.   The Chicago Police were uninterested and the Sheriff’s office indifferent.    Efforts by Ms. Sykes to obtain a criminal prosecution were fruitless!
Lost were transcripts of Court proceedings.   The transcripts document the unusual proceeding that took place in the Circuit Court of Cook County and establish that Mary Sykes’ liberty, property, civil rights and human rights were violated and everyone (including yours truly) who attempted to help was subject to harassment and intimidation).     Thousands of pages of material including a copy of Government Accounting Office report to Congress detailing dozens of other elder abuse cases that the Courts systematically denied were removed.     Ms. Sykes has carried on this fight on her own.   CBS has done at least one interview – it was quashed!
All that said, Gloria Sykes as a pro-se is attempting to recover her intellectual property in the Circuit Court – she filed a Petition for a Rule to Show cause.    It is my understanding that the matter is scheduled for January 3, 2013.     The respect (noun) for the 4th estate’s work product and the First Amendment are issues that journalist Gloria Sykes is raising before the Circuit Court.   She is protesting that by the simple procedure of a Forcible Entry and Detainer action our new national socialists were able to thwart the efforts of an award winning journalist to expose the perfidy and corruption that rival that of the Greylord Scandal.   The only difference is that the victim in this case is unprotected and helpless to defend him/herself.
It appears to citizens that David Gregory’s grandstand action is protected journalism; however, it also appears that the exposure of Elder Abuse, the Financial Exploitation of the Elderly, and the systemic forfeiture of liberty, property, civil and human rights of the disabled is not!     Yes, Tiny Tim, this is American in 2013!     The Wall Street Journal should do a story on the Mary Sykes and Gloria Sykes adventure with the Circuit Court of Cook County, Illinois Probate Division – that story is much more important than ‘grandstanding’ with an illegal cartridge magazine.
Ken Ditkowsky
Ken Ditkowsky

From Atty KDD–case synopsis

Thank you for submitting a formal complaint to the DOJ in Chicago regarding the cases you have or have learned of.   I have not seen the HHS response.
If you forward it to me I will respond immediately and answer fully and completely any question they have.   The Sykes case is a bell weather case as it has all the elements of abuse.
The Illinois ARDC has reservations concerning lawyers complaining about the corruption in the Courts, but I have no concern.   The ARDC filed a complaint against me for exercising my first amendment rights and even presented into evidence my letter to the Attorney General of the United States complaining about the extra -judicial acts in the Sykes case.  As a citizen of the United States of America I can and will continue to speak my mind and file complaints when I see the liberty of a person is taken from them.
The facts of Sykes are quite simple.
Mary Sykes had two daughters.   The older daughter took her to a lawyer and when they emerged the older daughter pursuant to a power of attorney had control of the Mary’s estate.    The documents were written in deceptive manner and Mary was clearly taken advantage of.    When Mary found out what occurred she tried to unwind the transaction.
Mary first tired to obtain copies of the documents that she signed but the older daughter and the attorney refused her copies.   Thereupon Mary sought help from the civic authorities and she went to the Court to obtain an order of protection.
The daughter countered with an incompetency proceeding.    She enlisted the co-operation of two of the court favorites:  Cynthia Farenga and Adam Stern.    With their aid she was able to thwart any hearing on the petition for an order of protection and was able to avoid the jurisdictional criterion of 755 ILCS 5/11a – 10 –NOTICE REQUIRED BY STATUTE.   this jurisdictional necessity was and is being totally ignored by the lawyers, the judges, law enforcement and the Illinois ARDC.   No one is concerned that without the 14 day prior notice required by statute every order ended is void.
Under color of statute Mary’s estate has been looted and Mary has been isolated from her family, her neighbors, and her activities.   We believe that she lives under the constant threat of being placed in a nursing home to live in a pool of her own urine.   Gold coins valued at approximately a million dollars have not been inventoried.  Cash that was in a mattress has not been inventoried.   The younger daughter has not been allowed communicates with her mother for periods in excess of six months.   A younger sibling (of Mary’s age 80 plus) has been denied communication with her sister (Mary) for extremely long periods of time.   Three years have gone by and no effort has been successful in obtaining Mary’s liberty rights, property rights, civil rights or human rights.
To expedite the vesting of the unlawful benefits anyone who questions the actions of the older daughter is subjected to punishment.   The younger daughter has had her life disrupted and her assets attached and taken from her under color of statute.   A court without jurisdiction on the mere whim of Faranga and Stern even tied up property out of the Illinois jurisdiction.
As you are aware even I have been subjected to harassment.   Knowing that there was no jurisdiction ( a fact affirmed by the Appellate Court of Illinois) the two guardian ad litem (Farenga and Stern) joined by the older daughter prosecuted a sanction motion against me for attempting to investigate this travesty.    The Appellate Court found that the Probate Court was acting without jurisdiction; however, the Illinois ARDC decided to investigate me and is presently prosecuting me for being unethical in questioning the majesty of a Court acting without jurisdiction and in concert with Farenga, Stern, and the plenary guardian in intentionally denying senior citizen Mary Stern of her liberty, her property, civil and human rights.     Mary Sykes for three years has been in such condition!
If you wish to forward my e-mail to HHS I would be honored for your do so.   Everyone who has heard of the Sykes case has one question, to wit:   HOW COULD THIS HAPPEN IN THE UNITED STATES OF AMERICA
Unfortunately it has happened and is happening to dozens of senior citizens and other disabled people today and no one is interested.   The seniors are in need of their own Martin Luther King!   We have substituted a wrinkles for a darker hue to the skin as the criteria for second class citizenship.   It is ironic that many of the very people who obtained first class citizenship by the heroics of Doctor King are active in the persecution of the disabled and the elderly.    (The ARDC prosecutor, and the Sykes judge are all African American  – how quickly we forget)
Let me say one thing – even though those given the responsibility to ensure that every American citizen’s liberty, property, civil rights and human rights are fully protected a disinterested in the disabled and the elderly – we still in America and we still have Rights, privileges and immunities.    I intend to exercise each right to the fullest and I expect all my friends to do the same.  On December 7, 1941 citizens from all walks of life gave up their lives to join in the fight to protect these rights, privileges and immunities and thus today there is no excuse for us not to do the same.   America is worth saving.
The year 2013 is going to be our year and the miscreants who seek to deny the disabled and the elderly their property, their liberty, their civil rights and their human rights are all going to pay the piper.    In the Sykes case the miscreants are at the very least going to pay the income taxes, interest and penalties  on the gold coins and cash not inventoried and (we assume) not reported as income on their Federal and State tax returns.
Ken Ditkowsky


A dedication to all those fighting for justice and love in probate court

This post is dedicated to all of you that are fighting for justice in probate court and who cannot see their beloved seniors or disabled loved ones on Hannakuh, Christmas Eve and Christmas Day.  The holidays are sad when “GAL’s” side with the Plenary Guardians to say that someone “aggitates” a senior so the senior is banned from seeing beloved children and grandchildren.  This is happening and continues to happen in the Bedinger case, the Sykes case– and in the Bedin case, the children were threatened their beloved mother would be “taken away” and isolated in a nursing home if Northwestern Memorial Hospital did not “do as it wanted them to do.”

All in the land of the free and the brave.

We talk the talk, but do not fight for justice for these seniors and disabled.  A woman has been writing me about a beloved young niece who has autism and is isolated and abused in a nursing home.

Another wrote me tonight and pleaded “do not write me to say that my father is better off in a nursing home.”

I would never do that.  It is situations like these that are the height of cruelty to elders.

We need the tort of “loss of consortium” passed in every state where seniors are systematically isolated from beloved family members on a whim, caprice or even pure evil and malice.

We need our “Power of Attorney Forms for medical care” in every state to say if you  isolate me from the following people (list beloved children and grandchildren and friends) you will be disinherited.

More needs to be done to represent and respect the rights of the seniors and elderly.

I want to file a class action, and I am looking for funding to do that.  If you can help or look around, please do so.

And in between times, know that I care about you all, I pray for you even if I cannot litigate for you, I will help you even tho your funds are limited or gone.  I cannot fly out to your home state right now and represent you pro bono and pro hace vice, but I hope some day that is a possibility.

I wish everyone during this amazing holiday season, peace, joy, understanding and patience and that you be surrounded with the sympathy, comfort and understanding of your family and friends as you go through these difficult times.  The karmic ties we form in this life time with family are of a magnitude of love that far stronger than any court order, any lies, deceptions, threats by the police and court system to simply ignore and toss out like yesterday’s news paper.  This all just has to change.


PS–My Christmas gift from one of my (brilliant) kids was a “disappearing civil rights” mug where you put a hot drink in it, the civil rights printing consisting of the bill of rights, disappears!  how amazingly apropos.  I think Leah Black at the ARDC needs to make that one her china pattern.

What’s next to do? Officially a blogger non grata

For all of you faithful followers of this blog, you have had the chance to read amazing and wonderful news about the rights and abilities of each US citizen to say what they want, when they want and in the manner they want to every other person on this planet earth–without worrying about not being entirely correct or diplomatic about it.

We give lip service to saying this is the most wonderful country in the world if we do not acknowledge the fact that we have embraced freedom of speech and freedom of expression and freedom of the press to the most encompassing metes and bounds possible, when most of the people running around have no true idea what this means on a day to day basis.  And it appears that the ARDC is in that category.

However, the ARDC (not unlike recently the nuns that are under the the holy thumb of the Pope in  Italy) have decided to reign in us attorneys for being highly critical of the reverable  likes of Adam stern, Cynthia Farenga, Justice Connors, Judge Stuart and  others wander in the probate halls of the 18th floor of the Daley Center and Kim Timmerwilke, Sharon Rudy and Judge Fabiano in Rockford probate court also join the landed gentry parade.  For some reason, the ARDC believes that these individuals are exempt from the slings and arrows of free speech, the first amendment and so forth, but they can get the ARDC to keep the rest of the lawyer hoi poli out there under an oppressive thumb by saying that statements made on this blog were made with a “reckless disregard for the truth” or some other such nonsense. For some reason, apparently KDD and I are afflicted with a cornucopia of malice for being highly critical of the likes of these fine and august (and clout heavy) individuals and it is actually Ken and I by calling for an investigation, that are clearly in the wrong and must be prosecuted for it.  We MUST be oppressed, silenced, wiped out, knuckle under the thumbs of our oppressors.

The ARDC it appears would like to have us transported back to the land of the kings and queens of yesteryear when it was possible to reign in those who were critical against the monarchy and the powers that be.  You were pulled into a star chamber and the king’s prosecutor would ask the favored politicos “did you do anything to harm Mary G. Sykes in the honorable land of guardianship?” and Prince Stern would put on an innocent lie boy face and say “no, sir”.  Then the king’s prosecutor would ask Princesses Farenga, Connors, Fabiano and Sturart, “did you do anything to harm Mary G. Sykes in the land of guardianship” and the princesses would respond in unison with their innocent lie girl faces saying, “no, sir–we are all innocent.”

Then the king’s prosecutor would say to the peons Ditkowsky and Denison, “where are your landed gentry to speak for you?”  All the while ignoring the numerous peon groups of NASGA, Probate Sharks, etc. standing out the rain because they are too lowly to enter the high courtroom.

Have times changed?  Our founding fathers and mothers certainly thought there was a problem with all of this, and they gave us the “First Amendment” (note the adjective first, like it is highly important).

I don’t know, on December 12, 2012, apparently the high lords at the ARDC voted to have Leah Black draft a complaint against my blogging.  I have not found any other state disciplinary cases against blogging and being critical of attorneys that operate in court rooms without jurisdiction and deny it, so this is a new one for all of us.

See the documents below.

KDD’s additional response to the ARDC

KDD’s additional calls for an investigation

Of course, the ARDC Inquire Panel votes to file a complaint against ME for blogging, and what does attorney Ken do?  (Since he was voted to engage in “misconduct”), right away he sends out MORE letters calling for an investigation.

I love it!

Each of Sykes, Wyman, Bedin, Tyler, Gore, etc. were cases operating without jurisdiction for years, and no one investigates. When KDD does a great job of raising a ruckus to investigate, all they do is rubber stamp misconduct on his forehead, and then look for the next forehead, which apparently is mine!  I’d better cut my bangs.





New York Times vs. Sullivan

On of my favorite cases–see what Justice Brennan says about the First Amendment and the standard for defamation.


376 U.S. 254
New York Times Co. v. Sullivan
No. 39 Argued: January 6, 1964 — Decided: March 9, 1964

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was ‘Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales.’ He brought this civil libel action against the four indiv dual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25. (Cynthia Farenga and Adam Stern were on the jury)

Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960.1 Entitled ‘Heed Their Rising Voices,’ the advertisement began by stating that ‘As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.’ It went on to charge that ‘in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. * * *’ Succeeding

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paragraphs purported to illustrate the ‘wave of terror’ by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, ‘the struggle for the right-to-vote,’ and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery, Alabana.

The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading ‘We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,’ appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the ‘Committee to Defend Martin Luther King and the Struggle for Freedom in the South,’ and the officers of the Committee were listed.

The trial judge submitted the case to the jury under instructions that the statements in the advertisement were ‘libelous per se’ and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made ‘of and concerning’ respondent. The jury was instructed that, because the statements were libelous per se, ‘the law * * * implies legal injury from the bare fact of publication itself,’ ‘falsity and malice are presumed,’ ‘general damages need not be alleged or pro ed but are presumed,’ and ‘punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.’ An award of punitive damages—as distinguished from ‘general’ damages, which are compensatory in nature—apparently requires proof of actual malice under Alabama law, and the judge charged that ‘mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages.’ He refused to charge, however, that the jury must be ‘convinced’ of malice, in the sense of ‘actual intent’ to harm or ‘gross negligence and recklessness,’ to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners’ con-

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tention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments.

In affirming the judgment, the Supreme Court of Alabama sustained the trial judge’s rulings and instructions in all respects. 273 Ala. 656, 144 So.2d 25. [sound familiar?  The same rubber stamp the ARDC uses in these cases?]

We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. 4 We

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further hold that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for respondent.

Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908—917. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised. See Ex parte Virginia, 100 U.S. 339, 346—347, 25 L.Ed. 676; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855.

The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, ‘commercial’ advertisement.

The publication here was not a ‘commercial’ advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. See N.A.A.C.P. v. Button, 371 U.S. 415, 435, 83 S.Ct. 328, 9 L.Ed.2d 405. That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 4 L.Ed.2d 205; cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64, n. 6, 83 S.Ct. 631, 9 L.Ed.2d 584. Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. Cf. Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013. To avoid placing such a handicap upon the freedoms of expression, we hold that if the allegedly libelous statements would otherwise be contitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement.5

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

Like insurrection,7 contempt,8 advocacy of unlawful acts,9 breach of the peace,10 obscenity,11 solicitation of legal business,12 and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.

They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.’

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.‘ N.A.A.C.P. v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405. As Madison said, ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.’ 4 Elliot’s Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, the Court declared:

‘In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.’

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of ex-

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pression are to have the ‘breathing space’ that they ‘need * * * to survive,’

Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. * * * Whatever is added to the field of libel is taken from the field of free debate.’13

Injury to official reputation error affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and

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reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192. This is true even though the utterance contains ‘half-truths’ and ‘misinformation.’ Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345, 66 S.Ct. 1029, 90 L.Ed. 1295. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice.

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom’s Fetters (1956), at 426, 431 and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison, ‘if any person shall write, print, utter or publish * * * any false, scandalous and malicious

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writing or writings against the government of the United States, or either house of the Congress * * *, or the President * * *, with intent to defame * * * o to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.’ The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it

‘doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the ‘Alien and Sedition Acts,’ passed at the last session of Congress * * *. (The Sedition Act) exercises * * * a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto—a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.’ 4 Elliot’s Debates, supra, pp. 553—554.

Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown was sovereign and the people were subjects. ‘Is

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it not natural and necessary, under such different circumstances,’ he asked, ‘that a different degree of freedom in the use of the press should be contemplated?’ Id., pp. 569—570. Earlier, in a debate in the House of Representatives, Madison had said: ‘If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.’ 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: ‘In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands * * *.’ 4 Elliot’s Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.15

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Although the Sedition Act was never tested in this Court 16 the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep.No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter ‘which no one now doubts.’ Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: ‘I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.’ Letter to Mrs. Adams, July 22, 1804, 4 Jefferson’s Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288—289, 72 S.Ct. 725, 96 L.Ed. 919; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899—900; Chafee, Free Speech in the United States (1942), pp. 27—28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

There is no force in respondent’s argument that the constitutional limitations implicit in the history of the Sedition Act apply only to Congress and not to the States. It is true that the First Amendment was originally addressed only to action by the Federal Government, and

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that Jefferson, for one, while denying the power of Congress ‘to controul the freedom of the press,’ recognized such a power in the States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United States, 341 U.S. 494, 522, n. 4, 71 S.Ct. 857, 95 L.Ed. 1137 (concurring opinion). But this distinction was eliminated with the adoption of the Fourteenth Amendment and the application to the States of the First Amendment’s restrictions. See, e.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138; Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155; Bridges v. California, 314 U.S. 252, 268, 62 S.Ct. 190, 86 L.Ed. 192; Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697.

For if the bookseller is criminally liable without knowledge of the contents, * * * he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. * * * And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. * * * (H)is timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitu-

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tionally suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship.‘ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.19 Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A.6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ Speiser v. Randall, supra, 357 U.S., at 526, 78 S.Ct. at 1342, 2 L.Ed.2d 1460. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made

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with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

This proposition has disquieting implications for criticism of governmental conduct. For good reason, ‘no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.’ City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E.

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86, 88, 28 A.L.R. 1368 (1923). The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, ‘reflects not only on me but on the other Commissioners and the community.’ Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.30 We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent.

The judgment of the Supreme Court of Alabama is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Even the Horn Books agree–14 day advance notice of a hearing is Jurisdictional under Sodini

Indeed, of course publish it.      As these laws have been in effect for more than a decade how sitting Judges are unaware of them.    This is the revelation garnered from Judge Connors’ deposition and the fact that Judge after Judge refuses to visit the jurisdiction situation in the Sykes case.    GJS has raised the issue until she is ‘blue in the face’ and Farenga, Stern, and Schmiedel – knowing that the attached article relies upon the Estate of  Steinfeld 158 Ill2d 1 and Sodini 172 Ill App 2d 530 [falsely] represented that the issue has been raised and determined against Sykes.     The fact that no Court order confirms this fact appears to be irrelevant.  [the fact that all 2009 orders have been professionally “cleansed” from the files also supports the concept that the ARDC is with knowledge and direction looking the other way]

JoAnne – Mary Sykes, a senior citizen – has had her liberty and property interests taken from her illegally.     You and I have spoken out and the Illinois ARDC is prosecuting us for speaking out.    Unfortunately, Mary Sykes is not alone in the conspiracy to reduce senior citizens to ‘second class citizenship, yet our law enforcement authorities appear to be silent.    Thank you for attempting to raise the ‘hue and cry’ against this outrage and the apparent refusal or inability of law enforcement to do an honest, complete and comprehensive investigation of these terrible events.     In a State that is on the verge of Bankruptcy one would think that the taxes due promulgated by the breach of fiduciary relations in not inventorying over a million dollars in gold coins and cash should stir an interest.
Ken Ditkowsky

From: JoAnne M Denison <jdenison@surfree.com>
To: kenneth ditkowsky <kenditkowsky@yahoo.com>
Sent: Monday, December 17, 2012 7:22 PM
Subject: Re: Fw: WestlawNext – § 282:1. Procedures preliminary to the hearing

Listed in Westlaw sec 282:1 is the following case cite:

The requirement that notice be given to relatives of the allegedly disabled person, as required by § 11a-10(f) is jurisdictional and failure to give such notice will require that the appointment be vacated. Matter of Sodini, 172 Ill. App. 3d 1055, 123 Ill. Dec. 67, 527 N.E.2d 530 (4th Dist. 1988).

very good, okay to publish?  if the court had no jursidiction in Sykes and you and I are screaming about it, they have no jurisdiction to discipline us for this travesty either.

not my fault or yours.

but the ARDC should have a Himmel duty to report itself.

Just who do we report the ARDC to?  Lisa Madigan?  Is she in on this?  the Illinois Supreme Court?  Have they also been directed to look the other way?  Where does this all end?  I guess I still have more questions–many more questions–than answers as this whole saga of greed, evil and corruption drags on and one and on.  It’s now nearly 3 years since I tried to intervene in the probate matter and was subject to a “bogus” disqualification claim merely because I notarized one document for Mary.  The case was then railroaded to closure with 90% of the Sykes family having no say, claiming Carolyn was estranged and not trustworthy and yet appointed as Plenary Guardian.


—–Original Message—–
From: kenneth ditkowsky
Sent: Dec 17, 2012 4:49 PM
To: JoAnne M Denison , probate sharks , NASGA , Tim Lahrman NASGA , Michigan Advocacy Project , states attorney , Cook County Sheriff , “Edward C. Carter” , DiAnn Matson , JoAnne M Denison , NASGA , probate sharks , matt senator kirk
Subject: Fw: WestlawNext – § 282:1. Procedures preliminary to the hearing
Take a look at this attachment.      It appears that even the ‘horn’ books are clear that the Sodini notices are jurisdictional.    
I wonder how this fact is even an issue?     I would suggest that Judge Connor’s deposition be examined to ascertain how she reasons that he she had jurisdiction to enter any orders in the Sykes case.    As I recall the deposition which I believe JoAnne put on her ‘blog’ the Judge says that she believes that she has discretion.    As I read Sodini et al there is no discretion – no service no jurisdiction.    
Being very blunt a grave injustice has occurred herein to both Mary Sykes and Gloria Sykes.     Three plus years have gone under the dam!    (maybe it should be spelled damn)  It is time for law enforcement to enforce the law.    The Mary Sykes case has not occurred in a vacuum.    Stern/Farenga/Schmiedel and the Circuit Court Judges who have entered orders herein must have had the very same knowledge that appears in the textbooks.    Thus, they knew or should have known that they had no jurisdiction when Mary Sykes was taken from her family, placed in Carolyn Troeple’s dwelling in Naperville, denied her liberty, isolated from her family,  had her assets taken from her (including about a million dollars in Au coins), etc.    the Judges and attorneys should have known there was no jurisdiction when they subject Gloria Sykes to the hearings that appear in the transcripts of the Sykes case and certainly they knew or should have known the lack of jurisdiction as the orders interfered with Gloria Sykes liberty and property.
Similarly, the Illinois ARDC must have known when they charged me (and as they are charging JoAnne) that we are protesting behavior that is occurring under color of statute that is clearly without jurisdiction.    An investigation of this travesty must be had immediately.   It also must cease and desist.    It is time now for JUSTICE.     Justice for Mary Sykes/Gloria Sykes.   The ‘cover-up’ must cease as it is a cancer on the justice system and the faith that the public has in the Courts.    
Ken Ditkowsky

Case quotes today on freedom of speech/first amendment rights

Content-based restrictions on speech are subject to the most exacting scrutiny because they pose the inherent risk that the government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. Where a statute regulates speech based on its content, it is subject to strict judicial scrutiny, requiring the government to show that the challenged regulation is narrowly tailored to serve or promote a compelling government interest. To survive strict scrutiny analysis, a statute that imposes a content-based restriction on speech must serve a compelling governmental interest; must be narrowly tailored to achieve that interest; and, must be the least restrictive means of advancing that interest. In other words, to survive the strict scrutiny standard as applied to state regulation of speech, the State has the burden of proving that its regulation is narrowly tailored to serve a compelling state interest. Where a law challenged under the First Amendment burdens core political speech, the courts will apply “exacting scrutiny,” and uphold the restriction only if it is narrowly tailored to serve an overriding state interest.




When content-based speech regulation is in question, exacting scrutiny is required. (Per opinion of Justice Kennedy, with three Justices concurring and two Justices concurring in the judgment.) U.S.C.A. Const.Amend. 1. U.S. v. Alvarez, 132 S. Ct. 2537 (2012).

Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. U.S.C.A. Const.Amend. 1. Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).

The fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech. U.S.C.A. Const.Amend. 1. Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).

Laws regulating speech based on its content generally must withstand intense scrutiny when facing First Amendment challenge. U.S.C.A. Const.Amend. 1. Log Cabin Republicans v. U.S., 716 F. Supp. 2d 884 (C.D. Cal. 2010).

Content-based exclusion will not satisfy strict scrutiny under First Amendment when less speech-restrictive means exist to achieve compelling state interest. U.S.C.A. Const.Amend. 1. Occupy Fresno v. County of Fresno, 835 F. Supp. 2d 849 (E.D. Cal. 2011).

Because a content-based speech restriction is presumptively invalid the government bears the burden to rebut that presumption. U.S.C.A. Const.Amend. 1. U.S. v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010).

In the case of a facially content-based statute, to survive a First Amendment free speech challenge, the statute must be necessary to serve the asserted compelling interest; the existence of adequate content-neutral alternatives undercuts significantly any defense of such a statute. U.S.C.A. Const.Amend. 1. Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367 (S.D. Fla. 2011).

And Now a Revisit to the Case Mirth and Girth

One of the more fun examples of repression of freedom of speech in Chicago, was apparently by a bunch of church ladies and gentlemen that took offense to Mr. Harold Washington appearing after death wearing mostly a smile in a fairly well done painting by an art student at the Art Institute.  Some Aldermen stormed the art castle of Chicago, demanding that the Art Institute take down the offending political statement, one said she wanted to burn it, etc.  The police eventually took the painting “into custody” for its own protection, but the painting ended up with a gash anyway.

The content of the painting, much like what Larry Flynt did for the dissemination of gynecology and silly cartoons in his magazine, aren’t all that important.  But for those of you that don’t remember, there WAS a time in this country when porn was apparently rare enough the US Supreme Court would review it each Sunday afternoon (like going to the show with a regular guy) and decided if it should be banned or not.  But somewhere along the lines, the standard was changed and the SCOTUS said they were no longer in that business.  And of course, it really is hard to imagine a bunch of old fart, blue blood, silver spooned, ivy leagued justices doing that every Sunday afternoon, when you would think there were better things for them to do, like saving the innocent from death row in Texas where juries annually convict more innocents than ants on a honey hill.

So here are some of my favorite portions of “Mirth and Girth”

16 F.3d 145 – United States Court of Appeals, Seventh Circuit.
David K. NELSON, JR., Plaintiff–Appellee, v. Allan STREETER, Dorothy Tillman, and Bobby L. Rush, Defendants–Appellants.

Art student sued city aldermen for civil rights violations in connection with their removal of his painting from an art school exhibition. The United States District Court for the Northern District of Illinois, George W. Lindberg, J., rejected the aldermen’s claims of official immunity, and appeal was taken. The Court of Appeals, Posner, Chief Judge, held that aldermen who removed student’s painting of former mayor wearing women’s underwear were not entitled to immunity from § 1983 action despite their contention that to allow painting to remain on display might have sparked riots from community

[And just what did the court say, in my favorite parts?]

Harold Washington, Chicago’s first black mayor, died suddenly of a heart attack in November 1987, shortly after being reelected. He had become a revered figure to the black community of Chicago—so much so that shortly after his death a poster went on sale in which a smiling Harold Washington is shown in the company of Jesus Christ floating above the Chicago skyline; the poster is captioned “Worry Ye Not.” David Nelson, a student at the School of the Art Institute of Chicago, did not think Washington deserving of deification, and so for his entry in the school’s annual fellowship competition Nelson submitted a painting intended (he claims) to portray Washington in a more human light. The painting, entitled “Mirth and Girth” and based on a rumor that doctors at the hospital to which Washington had been brought when he suffered his fatal heart attack had discovered that underneath his suit he was wearing female underwear, is a full-length frontal portrait of a portly grim-faced Harold Washington clad in a white bra and G-string, garter belt, and stockings.
[Nelson must watch a whole lot of cable TV, that’s all I’m saying.]

Nelson’s painting, together with the submissions of the other students, was placed on exhibition on May 11, 1988. The exhibition was open to students, faculty, and invited guests, but not to the public at large. The students’ works were to be judged by four experts. The winners would receive cash prizes, and their winning works would be exhibited at a public exhibition. “Mirth and Girth,” however, was destined not to be judged—not in the expected fashion, at any rate. As soon as the exhibition of student work opened and visitors saw Nelson’s painting, it became the focus of outraged attention. A security guard was quickly posted in front of it to protect it from an angry crowd of students. The school began receiving enraged phone calls. School officials asked Nelson to remove the painting. He refused.

Word of the painting came to the Chicago City Council, which was in session. Alderman Bobby Rush prepared a resolution, which was signed by, among others, Aldermen Allan Streeter and Dorothy Tillman, threatening to cut off the City’s contribution to the Art Institute unless the Institute apologized for displaying “Mirth and Girth.” The resolution passed, together with another resolution, which requested the Art Institute to remove the painting immediately.

The aldermen (one of whom has since become a Congressman) whom we have named are three of the defendants in this suit, and are the appellants in this appeal. But they were not the first aldermen to arrive at the scene. Aldermen Henry and Jones arrived first. Henry brandished a gun, and Jones removed the painting from the wall and placed it on the floor, facing the wall. They left, and a student rehung the painting. Then the defendants arrived. They took the painting down and tried to carry it out of the school, but were stopped by a school official, then diverted (carrying the painting) to the office of the president of the School of the Art Institute, Anthony Jones. When the painting arrived in Jones’s office, it had a one-foot gash, but it is not known precisely when, or by whom, the gash had been inflicted. The aldermen told Jones that they were there to carry out the City Council’s resolution to remove the painting from the Art Institute. The aldermen wrapped the painting in brown paper to prevent anyone from seeing it. According to one witness, Alderman Tillman threatened to burn the painting right there in President Jones’s office but was dissuaded by a police lieutenant who was present, Raymond Patterson. Another alderman (not one of the defendants) called Chicago Police Superintendent Leroy Martin, a defendant but not an appellant. Martin telephoned Patterson in President Jones’s office and ordered him to take the painting into police custody. A police sergeant, accompanied by the three defendant aldermen, carried the wrapped painting to a police car. The scene was televised, and broadcast widely, confirming, if confirmation was needed, that Chicago had replaced Boston as the censorship capital of the United States. Terminiello *148 v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); Police Dept. v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Collin v. Smith, 578 F.2d 1197 (7th Cir.1978); Sefick v. City of Chicago, 485 F.Supp. 644 (N.D.Ill.1979); Friedrich v. City of Chicago, 619 F.Supp. 1129 (N.D.Ill.1985); American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334, 121 N.E.2d 585 (1954); Steven C. Dubin, Arresting Images: Impolitic Art and Uncivil Actions chs. 2, 5 and pp. 47, 50, 64, 90, 93, 127, 165–66, 192–93, 222–23 (1992).

“Mirth and Girth” was kept in custody until the evening of the following day, when it was released (we assume on its own recognizance) to David Nelson. The painting has not been repaired, exhibited, or sold. It is an exhibit in this suit, and Nelson’s counsel has physical custody of it. During the set-to in the president’s office Jones had signed a statement promising that if the painting was returned it would not be “displayed or shown in any way without a meeting and resolution of the Board of Trustees and members of the City Council.” Later the president of the Art Institute’s board, Marshall Field, issued a public apology in which he promised that the painting would not be returned to public display.

Nelson filed this civil rights damages suit in 1988, shortly after the incident. The suit, based on 42 U.S.C. § 1983, charges that the defendants, acting under color of state law, deprived Nelson of rights secured to him by the First and Fourth Amendments, made applicable to state and local government by interpretation of the Fourteenth Amendment. Although the bizarre facts and the prominence of the defendants have attracted public attention to the case, it is straightforward from a legal standpoint and we are distressed by its protraction. We are being asked to resolve the threshold issue of immunity in a case that is five years old.

[1] [2] The appeals are from the district judge’s rejection of the defense of official immunity. A public official is not answerable in damages for a violation of the Constitution unless, at the time he acted, the law was clear that what he was doing really did violate the Constitution. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, he is not chargeable with predicting expansions in constitutional liability. So we must ask whether in 1988 the law was clear that local government officials may not go onto private property without invitation (the aldermen had not been invited to the exhibition of student work), seize a painting that they do not like because it vilifies a public official with whom they had been associated, and wrap it in brown paper and remove it so that no one can see it. To ask the question is pretty much to answer it. As Chief Justice Warren said in another case involving an effort to suppress public criticism of a mayor of Chicago, “This is a simple case.” Gregory v. City of Chicago, supra, 394 U.S. at 111, 89 S.Ct. at 946.

If the City owned the Art Institute, it would have some power—how much we need not decide—to regulate offensive displays. Piarowski v. Illinois Community College Dist. 515, 759 F.2d 625 (7th Cir.1985); Close v. Lederle, 424 F.2d 988 (1st Cir.1970). The City does not own the Art Institute, and its officials have no more right to enter it uninvited and take the art off its walls than they would have to enter a private home and take “offensive” art off its walls. Cf. Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam). It has been clear since long before 1988 that government officials are not permitted to burn books that offend them, and we do not see any difference between burning an offensive book and burning an offensive painting. Since Hogarth, and indeed since long before, the visual arts have been a medium of political and social commentary. David Nelson had as much right to paint Mayor Washington in women’s underwear as Thomas Nast had to caricature Boss Tweed. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), eliminates any possible doubt on that score, and it was decided two and a half months before the seizure of Nelson’s painting.

*149 We do not understand the aldermen’s counsel to disagree. They do not argue that a city with a black mayor and a large black population is entitled to a dispensation from the restraints that constitutional and civil rights law places on public officials, merely because blacks are a minority of the national population and have long been victims of racial discrimination. Even the most extreme advocates of “hate speech” codes, designed to shield groups perceived as vulnerable from offensive, hurtful, and wounding speech, do not argue that a public official should be immune from offensive, hurtful, and wounding criticism merely because he is a member of a minority group. “Transvestite” is not a racial epithet. While Alderman Rush testified that Nelson’s painting was one more effort to depict the black male as “impotent,” many is the white official who has been vilified for his sexual activities or preferences, real or conjectured. The appellants’ counsel make two different points. The first is that when they took down the painting the aldermen were acting as private citizens—as personal friends and admirers of the late Mayor Washington—rather than as government officials, much as President Truman was acting as a private citizen rather than as President of the United States when he lashed out at critics of his daughter Margaret’s singing. Whatever the merit of this argument (the aldermen were permitted to remove a work of art from its place of exhibition in the Art Institute—would a private person have been permitted to do so, or would he have been arrested on the spot?), it is not properly before us. It does not bear on the defense of immunity. In fact it contradicts it. If the defendants were not acting under color of state law, that is, as officials, they are not entitled to official immunity. Official immunity is for officials. President Truman could not have pleaded official immunity if a music critic had sued him for intentional infliction of emotional distress.

[3] [4] The aldermen’s second argument is that they took down the painting in order to save it from destruction at the hands of a mob, or alternatively to spare Chicago the devastating riots that the continued exhibition of the painting might have sparked, and that it was unclear in 1988 and it is unclear today that the temporary removal of a painting, so motivated, deprives the artist of his constitutional rights. This argument is germane to the aldermen’s defense of immunity, but it is based on an interpretation of the facts that we are not authorized to accept at this stage in the litigation. An official is entitled to immunity only if the uncontested or uncontestable facts reveal that his acts did not invade the plaintiff’s clearly established constitutional rights.
Alderman Tillman testified at her deposition that she did not want the painting hung in any public place and that if it were rehung she would attempt once again to remove it. She wanted to burn the painting, not to protect it from an angry mob. And there was no mob. There were angry people at the Art Institute—not least the aldermen, who should have been setting an example of cool self-restraint rather than threatening to seize and destroy private property. But the police, though there were only a handful of them, had the situation well in hand.

possibility—a slight possibility that a public exhibition of a work of art might cause a riot—we ought first to distinguish between a situation in which a speaker, writer, or artist intends to incite a riot and a situation in which a riot erupts because his message is offensive or unpopular. The First Amendment does not protect a speaker who eggs his audience on to commit a violent act, whether against himself or against others
First Amendment rights are not subject to the heckler’s veto. Cox v. Louisiana, supra, 379 U.S. at 551, 85 S.Ct. at 462–63. The rioters are the culpable parties, not the artist whose work unintentionally provoked them to violence. Even if DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), which holds that the Constitution does not create a right to be protected against private violence, might be thought to imply that the police do not have a constitutionally enforceable duty to protect an artist and the populace from a mob, there is nothing in that decision to suggest that police and other public officials can seek to protect the populace at the expense of the artist, by “arresting” the offensive painting rather than the violent rioters.
[favorite quote from Posner re inciting violence over a painting]
Burn down Chicago over a painting? Paris maybe, but Americans have never taken culture that seriously.
The appellants argue that no clearly established Fourth Amendment right of his was violated, because the seizure was temporary and anyway the painting was not in his custody when it was seized. It was well settled, however, in 1988 that temporary seizures are within the scope of the Fourth Amendment, United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); most police seizures of evidence, as distinct from contraband, are temporary. For a seizure to be actionable all that is required is “some meaningful interference with an individual’s possessory interest,” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984), “however brief
And although the painting was not in Nelson’s custody, the theft of a person’s property is no less a theft of his property if the property is taken from a warehouse where it is being stored than if it is taken out of his home. The painting was Nelson’s personal property. The Art Institute was merely a bailee. Of course by a contract of bailment a bailor may temporarily surrender some of his rights over the bailed good. By agreeing to exhibit his painting Nelson parted temporarily with the right to decide who could look at it. He did not part with the right to withhold it from vandals. So obvious is this that we do not think the absence of case law can establish a defense of immunity.
The purpose of the doctrine of official immunity is to protect officials from legal surprises. The defendants could not have been surprised to learn that they were not free to take down paintings from the walls of the Art Institute.

Nevertheless, the district judge, after holding the motions for summary judgment under advisement for eight months, referred them to a magistrate judge, where they remained for seven months, after which the district judge took another four and a half months to rule on the magistrate judge’s recommended disposition. As a result, more than a year and a half elapsed before the filing and disposition of the motions for summary judgment. There is no justification for such delay. It is time that the district judge took firm control of this case and guided it to a swift conclusion. The governing principles are clear, the facts have been explored exhaustively, and the defendants should be aware that efforts to mount a last-ditch, no-holds-barred defense may simply increase their liability for the plaintiff’s attorney’s fees under 42 U.S.C. § 1988.

And just what did the ARDC/”Inquiry Board” Learn in 6th grade civics?

As far as I am aware, there is still a national law that kids in 6th grade have to learn about the US Constiution, and in Illinois, they have to learn about the 1970 Illinois Constitution too which is very, very similar, guaranteeing basic civil rights, human rights and no depravation of life, liberty and property without due process of law (i.e., a summons and complaint PLUS whatever the Illinois state legislature has deemed due process such as properly served 5 day notes in evictions court AND 14 day notice to the respondent and “close relatives” in a petition for incompetency.”

Since there many judges that do not seem to get it (Fabiano, Connors, etc.), and attorneys that don’t seem to get it (Kimberly Timmerwilke McKenzie, Sharon Rudy, Cynthia Farenga, Adam Stern, etc.) I will continue on with Ken Ditkowsky’s suggestion we study the New York Times case, the Alvarez case, etc. in greater detail.

One would think, it being the First Amendment and all, that it would come first and foremost in the minds of everyone that free speech is a highly protected right in this country.  In England and in Europe, and still today in many, many countries in Africa (Egypt) and the Mideast, there is no free speech.  If you criticize a political figure, you go to jail for it.  Women don’t have civil rights.  They are imprisoned for speaking out, being an attorney and representing people for speaking out, etc.–such attorneys in these countries have been put in jail, had their property and even their parental rights terminated–all for speaking out and representing political dissidents that want freedom of speech.

So, for today’s lesson, dedicated to the ARDC and their rubber stamp “Inquiry” Board, another lesson in protected speech:  (by the way, click on Wikipedia today and give them a monthly donation–I did–and I also support the ALCU, Human Rights Watch, Amnesty International, NOW, FM, etc.–plus several war orphans in Afghanistan.)


President George W. Bush signed the Stolen Valor Act of 2005, (18 U.S.C. § 704), into law on December 20, 2006.[1] The Act broadens previous provisions addressing the unauthorized wear, manufacture, or sale of any military decorations and medals. The Act makes it a misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal. If convicted, defendants may be imprisoned for up to six months, unless the decoration lied about is the Medal of Honor, in which case imprisonment could be up to one year.

The law was passed to prevent impostors from “stealing the valor” of soldiers returning from engagements in Iraq and Afghanistan.[2] In 2009 alone, the Federal Bureau of Investigation investigated 200 alleged violations of the Act.[3]

Before the Ninth Circuit held the Stolen Valor Act unconstitutional in Alvarez, other courts had split. For example, the United States District Court for the District of Colorado held the Act unconstitutional, relying on the Supreme Court’s decision in Texas v. Johnson.[4] On the other hand, courts have also upheld the law. In United States v. Robbins, for example, District Judge James Parker Jones, citing the defamation case Gertz v. Robert Welch, Inc., stated, “Properly limited, the speech restricted by the Stolen Valor Act is not ‘speech that matters’ and falls outside the protection of the First Amendment.”[5]

In the instant case, the United States brought criminal charges against Xavier (Javier) Alvarez after he falsely claimed he had received the Medal of Honor.[6] Specifically, after being elected to the Three Valleys Municipal Water District Board, Alvarez introduced himself at a meeting by stating, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”[7] Despite this assertion and as the Ninth Circuit stated, “Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a Marine or in the service of any other branch of the United States Armed Forces. In short, with the exception of ‘I’m still around,’ his self-introduction was nothing but a series of bizarre lies.”[8] As part of a plea bargain, Alvarez conditionally plead guilty to the charge, while reserving the right to challenge the law on Constitutional grounds.[9]

In the end, the Ninth Circuit, by adopting the lower court’s language, concluded, “Alvarez ‘live[s] in a world, a make-believe world where [he] just make[s] up stories all the time…. [T]here’s no credibility in anything [he] say[s].'”[9]

Over the dissent of Circuit Court Judge Jay Bybee, Ninth Circuit Court Judge Milan Smith, Jr., joined by Circuit Court Judge Thomas Nelson, held that the Stolen Valor Act was unconstitutional.[10] First, Smith disagreed with Bybee’s conclusion that false facts are not protected by the First Amendment.[11] Second, Smith rejected the government’s and Bybee’s assertion that the court should undertake a balancing of interests approach. “In nearly every case, the false statement will be outweighed by the perceived harm the lie inflicts on the truth-seeking function of the marketplace of ideas. Using such an approach, the government would almost always succeed. However, such an approach is inconsistent with the maintenance of a robust and uninhibited marketplace of ideas,” Smith wrote.[12]

Smith then averred that the court will “presumptively protect all speech against government interference, leaving it to the government to demonstrate . . . the historical basis for or a compelling need to remove some speech from protection.”[13] As the Ninth Circuit would point out in its denial of rehearing en banc, Smith stated that the dissent incorrectly rested its laurels on Supreme Court rulings in defamation cases that false facts did not receive First Amendent protections.[14] Indeed, Smith stated that this was not a defamation case, because even if the act was intended to prevent injury to military personnel, “[t]he right against defamation belongs to natural persons, not to governmental institutions or symbols.”[15]

After review various other categories of speech traditionally subject to fewer protections, Smith concluded that false speech is protected, but “certain subsets of false factual statements” are not.[16] Because the speech did not fall into any of these categories, the Court held that it was protected and applied strict scrutiny. The law failed the test.[17] Therefore, Smith held the law unconstitutional. The government appealed for en banc review and was denied. It appealed the denial, and the Supreme Court granted certiorari.

Oral arguments

The Supreme Court heard oral argument on February 22, 2012.[18] Donald Verrilli, Jr., Solicitor General of the United States, appeared on behalf of the United States. Jonathan D. Libby, Deputy Federal Public Defender, appeared on behalf of Alvarez.

Verrilli spoke first; he began by explaining that military honors touch on the core values of the armed forces, and the Stolen Valor Act simply aims to protect those core values. Almost immediately Justice Sonia Sotomayor asked Verrilli a hypothetical:

During the Vietnam War, a protester holds up a sign that says, “I won a Purple Heart – for killing babies.” Knowing statement. He didn’t win the Purple Heart. As a reader, I can’t be sure whether he did and is a combat veteran who opposes the war, or whether he’s a citizen protesting the war. Is that person, if he’s not a veteran, having received the medal, is he liable under this act?[19]

Verrilli responded by suggesting that such an act would be covered by the Act only if it was “reasonably understood by the audience as a statement of fact or as an exercise in political theater.”[20] If it was an exercise in political theater, the Act would not prohibit it, Verrilli argued.

While Justice Sotomayor found that troubling, the main point of contention was the alleged lack of injury caused by false claims of military honors.[21] Indeed, in nearly all the cases that the United States cited to support the proposition that there is no First Amendment value in falsity, the Court had addressed a false statement that harmed another, such as a defamatory statement. Relying on these cases, Verrilli stated, “[T]his Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake.”[22] Justice Anthony Kennedy immediately retorted:

Well, I’m – I’m not sure that that’s quite correct. It has said it often, but always in context where it is well understood that speech can injure…. You think there’s no value to falsity. But I – I simply can’t find that in our cases, and I – I think it’s a sweeping proposition to say that there’s no value to falsity. Falsity is a way in which we contrast what is false and what is true.[23]

Libby opened the defense argument by emphasizing that the First Amendment is intended to protect personal autonomy. In response to several questions, Libby played on the Court’s discontent with the apparent lack of harm by stating that there is value in falsity “so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.”[24]

Libby took a misstep in the Court’s estimation, however, when he conceded that the Act did not chill any truthful speech. In response, Justice Kagan stated, “So, boy, I mean, that’s a big concession, Mr. Libby. Then you’re saying, you can only win this case if this Court decides that the Gertz statement was a kind of overstatement, an exaggeration, puffery.”[25]

Supreme Court’s decision

On 28 June 2012, a divided Supreme Court held that the Stolen Valor Act’s prohibition against making false statements of having been awarded a military medal violated the First Amendment.[26][27] The justices voting to strike the law could not agree on a rationale.

Justice Anthony Kennedy, writing for a plurality consisting of himself, Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor, said that false statements are not, by the sole reason of their falsity, excluded from First Amendment protection. Justice Kennedy said that Alvarez’s statement – which had harmed no one – was within the protection of the First Amendment, and, therefore, the statute had to be subjected to strict scrutiny, meaning that it had to be necessary to serve a compelling governmental interest and narrowly tailored to serve that interest. The statute failed that test, according to Justice Kennedy, because there was no proof that the public thought less of recipients of military medals because of the existence of charlatans who lied about having received them. Justice Kennedy also said that the proper response to false statements about receiving medals was the issuance of true statements about those who had really earned medals and exposing those who lied about receiving them.

Justice Stephen Breyer, writing for himself and Justice Kagan, eschewed a “strict categorical analysis” as typified by the strict scrutiny standard. Instead, he set out “to examine the fit between statutory means and ends.” Justice Breyer concluded that the statute was unconstitutional because “the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways,” such as “a more finely tailored statute.”

Justice Samuel Alito, joined by Justice Scalia and Justice Thomas, dissented. They argued that false statements about military medals merit no First Amendment protection whatsoever, while recognizing that false statements may be protected when laws restricting them might chill otherwise protected speech. However, the dissenters argued that the Stolen Valor Act does not implicate that concern because lying about alleged receipt of military honors does not relate to any protected expression, and the lies cause harm to those families and individuals who received these medals legitimately.[28]

What do you say to a rubber stamp?

While I have been very, very busy this week helping out as many of you as I can and trying to find litigation funding for a class action in probate, because it seems that for a very long time, Probate has been ignoring jurisdictional requirements such as 1) summons and complaint properly served upon the Respondent (Bedin, Tyler, Sykes, Wyman,etc.) and 2) it further has decided in many, many cases to skip requiring the Petitioner to send out written notice to all adult children and siblings 14 days in advance of an incompetency petition (seems the court is often far more incompetent that the accused senior standing before it), I just received the latest rubber stamp from the ARDC “inquiry board.”

Ken thinks all the ARDC needs is a lesson in first amendment rights (as well as copyright lawy, because the complaint is bogus and the continued pilfering of Ken’s fine writing constitutes garden variety copyright infringement.)

First, take a look at what a rubber stamp from the “Inquiry Board” looks like

Rubber Stamp from ARDC against JMD

I thought we might consider today the Pentagon Papers case or this article from Wikipedia:

Prior to publication, The New York Times sought legal advice. The paper’s regular outside counsel, Lord Day & Lord, advised against publication,[5] but house counsel James Goodale prevailed with his argument that the press had a First Amendment right to publish information significant to the people’s understanding of their government’s policy.

President Nixon’s first reaction to the publication was that since the study embarrassed the Johnson and Kennedy administrations, not his, he should do nothing. However, Kissinger convinced the president that not opposing publication set a negative precedent for future secrets.[5] The administration argued Ellsberg and Russo were guilty of a felony under the Espionage Act of 1917, because they had no authority to publish classified documents.[17] After failing to persuade the Times to voluntarily cease publication on June 14,[5] Attorney General John N. Mitchell and Nixon obtained a federal court injunction forcing the Times to cease publication after three articles.[5] Times publisher Arthur Ochs Sulzberger said:

Newspapers, as our editorial said this morning, we’re really a part of history that should have been made available, considerably longer ago. I just didn’t feel there was any breach of national security, in the sense that we were giving secrets to the enemy.[18]

The newspaper appealed the injunction, and the case New York Times Co. v. United States (403 U.S. 713) quickly rose through the U.S. legal system to the Supreme Court.[19]

On June 18, 1971, The Washington Post began publishing its own series of articles based upon the Pentagon Papers;[5] Ellsberg gave portions to editor Ben Bradlee. That day, Assistant U.S. Attorney General William Rehnquist asked the Post to cease publication. After the paper refused, Rehnquist sought an injunction in U.S. district court. Judge Murray Gurfein declined to issue such an injunction, writing that “[t]he security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”.[20] The government appealed that decision, and on June 26 the Supreme Court agreed to hear it jointly with the New York Times case.[19] Fifteen other newspapers received copies of the study and began publishing it.[5]

On June 30, 1971, the Supreme Court decided, 6–3, that the government failed to meet the heavy burden of proof required for prior restraint injunction. The nine justices wrote nine opinions disagreeing on significant, substantive matters.

Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
—Justice Black[21]

Thomas Tedford and Dale Herbeck summarize the reaction of editors and journalists at the time:

As the press rooms of the Times and the Post began to hum to the lifting of the censorship order, the journalists of America pondered with grave concern the fact that for fifteen days the ‘free press’ of the nation had been prevented from publishing an important document and for their troubles had been given an inconclusive and uninspiring ‘burden-of-proof’ decision by a sharply divided Supreme Court. There was relief, but no great rejoicing, in the editorial offices of America’s publishers and broadcasters.
—Tedford and Herbeck, pp. 225–226.[22]

Ellsberg surrendered to authorities in Boston and admitted that he had given the papers to the press. He was later indicted on charges of stealing and holding secret documents by a grand jury in Los Angeles.[12] Federal District Judge William Matthew Byrne, Jr. declared a mistrial and dismissed all charges against Ellsberg [and Russo] on May 11, 1973, after several irregularities appeared in the government’s case, including its claim that it had lost records of illegal wiretapping against Ellsberg conducted by the White House Plumbers in the contemporaneous Watergate scandal.[5] Byrne ruled: “The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.”

I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.
— Ellsberg on why he released the Pentagon Papers to the press.[12]

Times v. United States is generally considered a victory for an extensive reading of the First Amendment, but as the Supreme Court ruled on whether the government had made a successful case for prior restraint, its decision did not void the Espionage Act or give the press unlimited freedom to publish classified documents. Ellsberg and Russo were not acquitted of violating the Espionage Act; they were freed due to a mistrial from irregularities in the government’s case.[5]

In March 1972, political scientist Samuel L. Popkin, then assistant professor of Government at the University of California, San Diego, was jailed for a week for his refusal to answer questions before a grand jury investigating the Pentagon Papers case, during a hearing before the Boston Federal District Court.[23] The Faculty Council later passed a resolution condemning the government’s interrogation of scholars on the grounds that “an unlimited right of grand juries to ask any question and to expose a witness to citations for contempt could easily threaten scholarly research.”[23]

Gelb estimated that the Times only published about 5% of the study’s 7,000 pages. The Beacon Press edition was also incomplete. Halperin, who had originally classified the study as secret, obtained most of the unpublished portions under the Freedom of Information Act and the University of Texas published them in 1983. The National Security Archive published the remaining portions in 2002. The study remained formally classified, however,[5] until 2011.

From JMD:

Okay, I’m not a newpaper, I am a blog, but I think blogging has fast taken over where “official news outlets” have left off.  Blogging is a huge cottage industry fueled by the fact that 1) some people just can’t stop investigating and publishing what they find out and 2) there are readers out there that are interested in extraordinary blogging.

This blog is well over 14,000 hits and it’s hard to say it simply isn’t covered by free speech.  It is linked to other blogs and that’s where probate victims and their families find companionship, consolation, sympathy, empathy, and most of all hope.

Even if the ARDC doesn’t “get it’–the first amendment, and thinks that they can stop out the lawyers that are now involved in probate court watching and noting corruption and mis-steps.

Ken and I speak for those that have no voice–those that have been stripped of their due process rights, and then their liberties, property and civil and human rights.

We need more lawyers that are not afraid.  I am not afraid.

Not even after my “rubber stamp” letter.

Justice Connor got promoted to the Appellate Court because she ignored due process and jurisdiction rights of grandma and grandpa and their families, perhaps LB is looking for a position next to her on the Second District Court of Appeals?

And can you spend Christmas with YOUR parents?

Merry Christmas and a Happy New Year
I am upset that so many are separated from ‘loved ones’ on this Christmas Holiday not because of any fact other than the ‘dirty little secret’ that Avarice toward the elderly apparently is an accepted practice in certain quarters and receives dejure protection by the second oldest profession and its organization.
Yes, ‘Tiny Tim’ there are good people out there and some of them have law degrees and some of them even have ‘black robes!’   However, as Gloria Sykes and many of you have disclosed, this will be an empty holiday for you.   It will be empty not because of anything that you have done or your loved one has done – it will be empty because your loved one has a few dollars that a person with ‘clout’ desires to make part of his/her bank account.
The Illinois ARDC has made it very clear that the foregoing statement in their view is unethical as ethical lawyers are supposed to look the other way when he/she observes one of the ‘favored’ helping him/herself to a ‘victim’s assets’     Indeed, it is now over three years since Mary Sykes’ safety deposit box was ‘drilled’ and a bunch of Au coins were removed and not inventoried.     It is more than three years and the de-facto guardian has not denied the allegation.   She has not denied it because she cannot!  However, even though GAL Farenga admitted under oath in her testimony before the Illinois ARDC that she ignored the drilling of the box and neither she or Adam Stern had any knowledge of what was in the box they deny that there was any Au coins in the drilled safety deposit box.   Of course the Illinois ARDC attorney asserts that Farenga’s denial based upon no knowledge is to be believed and the co-owner of the box (Gloria Sykes) and the sibling of Mary who actually saw and described the container in which the coins were kept are all liars!    So obscene is the picture that Gloria and her aunt Yolanda have been barred from visiting with Mary!  
Even the Government Accounting Office’s report to Congress and the fiscal cliff have not made a dent in the perfidy that is directed at so many of the elderly and their families.   The approximately eight or nine million in taxes, penalties, and interest that is due from the miscreants in the Sykes, Gore, Tyler and similar Illinois estates remains unchallenged and uncollected.    In Sykes as an example, if it were politically appropriate the verification of the source of the Au coins would have been made three years ago.   Archie’s Coins where Sgt. Sykes purchased many of them is still in business and the Biddy Estate is still remembered, but, the inquiry might have interfered with the ******.
The Christmas season (yes Tiny Tim – this is the Christmas Season, not the Holiday Season etc – is the time of year that all Americans take pride and stock in their heritage of ‘freedom’ and their right to worship their religion of their choice.  Historically (even on December 7, 1941) was a season of ‘hope.’  If Martin Luther King were alive today, on behalf of the elderly who are being systematically abused and financially exploited he would lead a march on Chicago to free Mary Sykes.   He would deplore the fact that just because someone has a few skin wrinkles they should become second class citizens and subject to their loss of liberty, property, civil rights, and human rights.   He would deplore the fact some of the people who have taken up the banner of ‘Bull Connor’ were or should have been his companions in Selma.   
Fortunately for all of us, just as cream rises to the top of the bottle there are more good people out there then miscreants and Justice will prevail.   The Mary Sykes of this world will return to their loved ones and her guardian(s) will pay their United States Income Taxes etc.   History will repeat itself again and again and for this gift we are grateful.   
Please allow me to extend to each of you on behalf of me and my family our best wishes for a Merry Christmas, Happy New Year and whatever it is politically correct to call this season.    2013 is going to be the year that the elders who are subject to they Sykes syndrome are restored their ‘liberty’, property, civil and human rights.    2013 is going to be the year that we all celebrate good health, prosperity and happiness.
Ken Ditkowsky

In re Carol Wyman–Blind as a Bat, Deaf as Stone

Finally received the briefing schedule on Carol Wyman.  If the Appellate court does it’s job, she will be free from state imposed tyranny by May, 2013.

What a sad state of affairs.

Link to Briefing Schedule In Re Carol Wyman, Court of Appeals, 2nd District

Of course, it is not too late for Sharon Rudy, Kim Timmerwilke McKenzie and Judge Fabiano to do the right thing and dismiss this case for lack of jurisdiction and I implore them to do so now, before briefs are submitted and the Wyman family continues their pain and anguish in this matter.

The Illinois Probate Act is clear that notice must be given to all adult children and siblings by petitioner notifying them in writing of the time, date and place for hearing on guardianship 14 days in advance.  SRR did not do this.  SRR must call for the case to be dismissed/nonsuited, because she is an officer of the court.  KTM must call for the case to be dismissed/nonsuited because, as Guardian ad Litem she is supposed to be the “eyes and ears of the court.”  Judge Fabiano should dismiss the case because it is the duty of the court, prior to taking jurisdiction and issuing any rulings or substantive orders to review the Summons and Complaint, Affidavit of service and make sure it was properly served 14 days in advance of the hearing AND look for the Sodini notices and a Certificate of Service.  Had she done this back in July of 2009 a great travesty of injustice upon the Wyman family might have been averted.

I guess no one likes to admit they were wrong in Rockford, or a court does not have jurisdiction, or the eyes and ears of the court are as blind as a bat and as deaf as stone.


Another day, another cash grab by a niece miscreant

From Tom Fields to attorney Ken Ditkowsky

To: Tom Fields , “‘Elder Abuse Exposed.com'”

Subject: Re: Elder Abuse & The Consumer Financial Protection Bureau

 Thank you all for the attention that each of you has given to this serious problem of elder abuse/financial exploition of the elderly.   Tom’s efforts to discourage the miscreants and to garner evidence in all possible cases before the problem is detected is laudable and must be given a full and complete hearing.   Prevention is much more important that a cure and is less expensive.
That said, some of us are faced with a full blown epidemic of elder abuse/financial exploitation and the frustration the comes from having existing laws and judges who are either disinterested in the existing statutory scheme or do not understand it.   JoAnn Denison in Chicago has started a campaign to bring the 42 USCA 1983 violations against senior citizens to the front burner.   Some of the Illinois cases that she had garnered and others disclosed are enough to scare the pants off of seniors in general.
This afternoon I received a telephone call from an 83 year old lady.   Her family is dying off and as she is getting ‘long in the tooth’ she relied upon a niece (who she loves as if she were her own child) for some minor tasks, and upon advice of counsel signed a power of attorney so as to facilitate some of the chores that require mobility.  Our new client had to rehab in a ‘nursing home.’  (These are the chores that my delegates to me – take out the garbage, fill the car with gas, etc).   My 83 year old client discovered that the niece removed $90,000 from her (the 83 year old lady) checking account.
A new visitor also came to see the client.   This visitor started administrating ‘competency tests!’   My client called the marines.   Her Rabbi appeared in full battle uniform and I was consulted.   She was immediately removed from the nursing home, and a letter revoking the power of attorney was communicated.    The niece reacted by traveling to the Daley Center.   I expect that shortly we will be faced with having to deal with the Probate Division of the Circuit Court.   It would not surprise me if the GAL appointed were none other than Farenga, Stern, Schmiedel, or Solo.    It also would not surprise me if the CP211 were signed by Amdur or Stern.   The fact that the client is perfectly competent even though she is 83 years old ******.
I am meeting with my client and a bunch of her friends tomorrow.  Tom Field’s legislation would eliminate the ‘expert witness’ who for price is prepared to testify that the Moon is made of green cheese and the good lord is really a ‘fat old jewish lady missing her two front teeth.’  Reading Illinois’ legislative scheme I should feel confident that I can defeat the niece and her attorney with both hands tied behind my back; however, read the Sykes case, the Gore case, the Tyler case, or the Wyman case.   Read the Evidence depositon of the Honorable M. Connors or the transcript of proceedings in the Sykes case for November 5, 2012.   The legislative mandate is either not read, not understood, or just ignored!
We need as a first step an honest, complete and comprehensive investigaton of the Sykes case and related cases instanter.   We need to have the Internal Revenue Service collect the taxes that are due when a fiduciary misappropriates money.   If the taxes are not paid the full penalties and interests charged and collected from the miscreant fiduciary.
Please allow me to wish one and all a happy healthy and successful holiday season.  This Christmas for my present I would appreciate it if every senior citizen would be able to rest secure in the knowledge that America and Americans are dedicated to standing shoulder to shoulder to protect his/her liberty interest, property interest, civil rights and human rights from the few by clout heavy miscreants.
Ken Ditkowsky


A New Summary from Ken Ditkowsky re the antics of a favorite miscreant–Miriam Solo

Just so all of you know, Miriam Solo’s real name is Miriam Soloveichik.  She is reported on “most wanted” of NASGA, so I think she is already an official miscreant.  And this does not come from me, it comes from a well respected web site in the world of probate watchers.

Now from Ken Ditkowsky, a summary of more antics in Probate court.

Writing about the Schwartz case is SOP.
For instance you could write something along the lines of.
Another unusual case has raised its head on the 18th Floor of the Daley Center.
Miriam Solo filed an very unusual citation that she refers to as Citation to Recover; however, the petition that she is prosecuting is interesting in that it lacks specificity and most of the required factual averments.   The proof in support of the petition appears to be most interesting in that it consists of:
1) testimony from the executor that she claims to have no knowledge
2) affidavits and April 13, 2011 transcript in which the respondent denies each allegation of petition
3) documents that point out that the issues that were previously raised in the Circuit Court for Broward County, Florida and decided adversely to the Estate
4) A copy of an affidavit allegedly sworn to by the decedent that now has two versions.   one version was allegedly filed in Florida and a second version was filed in Cook County.
[can you get us those two versions of filed affidavits that are different? that should be an entertaining read]
The uniqueness of the proceeding is compounded by the fact that the attorney for Mr. Schwartz requested of Ms. Solo a copy of the petition that she was proceeding upon.   The Court did not grant the motion and Ms. Solo refused to provide a copy.   Apparently, respondent’s counsel was expected to be Clairvoyant.  The usual scenario did not stop at this point:  the respondent was required to either admit a bunch of documents that were not served on him.   When he objected the Court ruled that the documents were admitted.   The Court barred the respondent from putting on a defense to complete the trifecta.
Yes, this does sound like some of the proceedings that Gloria Sykes, Bev Cooper, et al report; however, Ms. Solo appears to have decided to level the playing field (or she forgot what side she was on).   The executor’s exhibit 4 memoralized the testimony under oath of the respondent and issue by issue refutes every implication of the Citation petition.  Ms. Solo guides the respondent in this endeavor.    Exhibit 8 and 10 emasculate anything that is left of the allegations and Ms. Solo’s client’s testimony that she has no knowledge drives in the last coffin nail.  The Court denied a motion for a finding and required each of the parties to provide their final arguments in writing by December 21, 2012.   The Court will rule on January 23, 2013.
The executor’s presentation is very dramatic in that by the exhibits that she presents she informs the Court that Mr. Schwartz was the attorney in fact for the only beneficiary of the Estate and that he acted in her stead.   Thus, the executor after producing only exculpatory evidence favoring the respondent goes the extra mile to inform the Court that what is being attempted herein is to recover in collateral proceedings the very assets that a Florida Court ruled the decedent had unlawfully acquired.
Ms. Solo must be commended for the ‘defense’ that she put on for the respondent.   If I were to grade the attorney’s Ms. Solo performance It would get an A. The  defense that she put on for the respondent steamrolled the executor and demonstrated exactly why the Attorney for the executor and the executor ought to be sanctioned pursuant to Rule 137.    The attorney of record for the respondent would rate a C-.  All he did was allow Ms. Solo to take the laboring oar and destroy the executor’s case.
  The only fly in the ointment is that Ms. Solo filed here appearance for the executor; however, this is the 18th floor of the Daley Center and as the Blogs have pointed out – up is down, down is up, right is wrong and wrong is right.
Ken Ditkowsky


What does jurisdiction mean to YOU?

This post is especially dedicated to Justice Connors, since she could not figure out what jurisdiction was in the Sykes case and other cases before her where I have had numerous families complain vociferously to me regarding jurisdiction and her courtroom.

There are also a number of GAL’s that could benefit from these quotes, both here in Chicago and in Rockford it seems.

Further, I had a question today about how long a litigant can complain about lack of jurisdiction and apparently the answer is a really, really long time, if not forever.

See the fun quotes below and be sure to use them frequently in Probate and other courtrooms, as you are able.

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026.

A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.] Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).

“Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted.” Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150.

“The law provides that once State and Federal Jurisdiction has been challenged, it must be proven.” Main v. Thiboutot, 100 S. Ct. 2502 (1980).

“Jurisdiction can be challenged at any time.” and “Jurisdiction, once challenged, cannot be assumed and must be decided.” Basso v. Utah Power & Light Co., 495 F 2d 906, 910.

“Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal.” Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d. 368 (Fla 2nd DCA 1985)

“Once challenged, jurisdiction cannot be assumed, it must be proved to exist.” Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.

“There is no discretion to ignore that lack of jurisdiction.” Joyce v. US, 474 F2d 215.

“The burden shifts to the court to prove jurisdiction.” Rosemond v. Lambert, 469 F2d 416.

“A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property.” Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.

“Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio.” In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.

“Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term.” Dillon v. Dillon, 187 P 27.

“A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance.” Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.

“A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction.” Wuest v. Wuest, 127 P2d 934, 937.

“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.

“The fact that the petitioner was released on a promise to appear before a magistrate for an arraignment, that fact is circumstance to be considered in determining whether in first instance there was a probable cause for the arrest.” Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685.

Read US v. Lopez and Hagans v. Levine both void because of lack of jurisdiction. In Lopez the circuit court called it right, and in Hagans it had to go to the Supreme court before it was called right, in both cases, void.

Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

– – – – –

Re: Fed. R. Civ. Pro. 60(b)(4) pertaining to void judgments:
A liberal construction of this rule is particularly appropriate where equitable considerations are involved. Johnson Waste Materials v. Marshall, C.A.5 (Tex) 1980, 611 F.2d 593.

This rule authorizing a court on motion to relieve a party or a legal representative from a final judgment or order for any reason justifying relief is to be liberally applied in a proper case, that is, in a case involving extraordinary circumstances or extreme hardship. U.S.S. v. Cirami, C.A.2 (N.Y) 1977, 563 F.2d 26, on remand 92 F.R.D. 483.   See, also, Marquette Corp. v. Priester, D.C.S.C.1964, 234 F.Supp. 799; U.S. v. $3,216.59 in U.S. Currency, D.C.S.C.1967, 41 F.R.D. 433. Subd. (b)(4) to (6) of this rule that court may relieve party from final judgment if it is void, if it is no longer equitable that judgment should have prospective application or for any other reason justifying relief from operation of judgment, is to be liberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St. Paul Fire & Marine Ins. Co., C.A.5 (Fla.) 1965, 341 F.2d 351, certiorari denied 86 S.Ct. 66, 382 U.S. 829, 15 L.Ed.2d 73.

This rule should be liberally construed for purpose of doing substantial justice. In re Hankins, N.D.Miss.1973, 367 F.Supp. 1370. See, also, Fackelman v. Bell, C.A.Ga.1977, 564 F.2d 734; Radack v. Norwegian America Line Agency, Inc., C.A.N.Y.1963, 318 F.2d 538; Triplett v. Azordegan, D.C.Iowa 1977, 478 F.Supp. 872; Tann v. Service Distributors, Inc., D.C.Pa.1972, 56 F.R.D. 593, affirmed 481 F.2d 1399. This rule establishing requirement for granting relief from a final judgment or order is to be given a liberal construction. U. S. v. One 1966 Chevrolet Pickup Truck, E.D.Tex.1972, 56 F.R.D. 459. 7. —- Void judgment clause: Although this rule providing for relief from judgment is not substitute for appeal and finality of judgments ought not be disturbed except on very narrow grounds, liberal construction should be given this rule to the end that judgments which are void or are vehicles of injustice not be left standing. Brennan v. Midwestern United Life Ins. Co., C.A.7 (Ind.) 1971, 450 F.2d 999, certiorari denied 92 S.Ct. 957, 405 U.S. 921, 30 L.Ed.2d 792.

A claim for relief from judgment on basis of “any other reason justifying relief from operation of the judgment” is cognizable where there is evidence of extraordinary circumstances or where there is evidence of extreme hardship or injustice, and, once extraordinary circumstances or hardship is found, this rule is to be liberally applied to accomplish justice. U. S. v. McDonald, N.D.Ill.1980, 86 F.R.D. 204.

Attorney’s motion for reconsideration on ground that court lacked jurisdiction to order him to pay court reporter could be entertained under rule governing relief from judgment and was not subject to time constraints of rule governing motion to amend judgment. U.S. v. 789 Cases of Latex Surgeon Gloves, C.A.1 (Puerto Rico) 1993, 13 F.3d 12

Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).

A void judgment is one which from the beginning was complete nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management,  485 F.Supp. 456 (M.D. Fla. 1980). Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992).

Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process,  U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell  110 F.R.D. 382 (S.D.N.Y. 1986).

Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).

A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985).

A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selevtive Service System Local Bd. No. 27,  453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).

A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree – Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985).

A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan,  234 P.2d 319 (Cal.App. 2 Dist. 1951). Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects,  Ward v. Terriere,  386 P.2d 352 (Colo. 1963).

A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958).

Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally,  People v. Wade,  506 N.W.2d 954 (Ill. 1987).

Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law Eckel v. MacNeal,  628 N.E. 2d 741 (Ill. App. Dist. 1993).

Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally

People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990). Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).

Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks,  630 N.E. 2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity People v. Rolland 581 N.E.2d 907, (Ill.App. 4 Dist. 1991).

Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co.,  452 n.e.2D 1383 (Ill. App. 5 Dist. 1983).

A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos,  609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993).

Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel,  698 N.E.2d 1152 (Ind. 1998).

Relief form void judgment is available when trial court lacked either personal or subject matter jurisdiction,  Dusenberry v. Dusenberry,  625 N.E. 2d 458 (Ind.App. 1 Dist. 1993).

Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire,  869 P.2d 58 ( Kan. 1997).

Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994).

A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999).

Void judgment is one rendered in absence of jurisdiction over subject matter or parties 310 N.W. 2d 502, (Minn. 1981). A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973).

A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction, Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954).

A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment,  Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950).

Void judgment is one entered by court without jurisdiction to enter such judgment,  State v. Blankenship  675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).

Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990).

Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment  Com. V. Miller,  150 A.2d 585 (Pa. Super. 1959).

A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment,  Underwood v. Brown,  244 S.W. 2d 168 (Tenn. 1951).

A Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given,  State ex rel. Dawson v. Bomar,  354 S.W. 2d 763, certiorari denied, (Tenn. 1962).

A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment, State v. Richie,  20 S.W.3d 624 (Tenn. 2000).

A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given,  Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950).

Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed,  City of Lufkin v. McVicker,  510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973).

A void judgment, insofar as it purports to be pronouncement of  court, is an absolute nullity, Thompson v. Thompson,  238 S.W.2d 218 (Tex.Civ.App. – Waco 1951).

A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties.” Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)

A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction  of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved,  State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999).

A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L.,  733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties,  Cockerham v. Zikratch,  619 P.2d 739 (Ariz. 1980).

Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally,  Irving v. Rodriquez,  169 N.E.2d 145, (Ill.app. 2 Dist. 1960). Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record,  Crockett Oil Co. v. Effie,  374 S.W.2d 154 ( Mo.App. 1964).

Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995). Void order may be attacked, either directly or collaterally, at any time,  In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994).

Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court,  People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).

While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus,  Sanchez v. Hester,  911 S.W.2d 173, (Tex.App. – Corpus Christi 1995). Arizona courts give great weight to federal courts’ interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure,  Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998).

When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala,  30 F.3d 1307, (Colo. 1994).

Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside,  Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278.

A  “void” judgment as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by ).

No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97.

On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of [({a  void judgment one which there is no evidence to sustain.})] Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.

In Stoesel v. American Home,  362 Sel. 350, and 199 N.E. 798 (1935), the court ruled and determined that, “Under Illinois Law and Federal Law, when any officer of the Court has committed “fraud on the Court”, the order and judgment of that court are void and of no legal force and effect.” In Sparks v. Duval County Ranch, 604 F.2d 976 (1979), the court ruled and determined that, “No immunity exists for co-conspirators of judge. There is no derivative immunity for extra-judicial actions of fraud, deceit and collusion.”  In Edwards v. Wiley,  374 P.2d 284, the court ruled and determined that, “Judicial officers are not liable for erroneous exercise of judicial powers vested in them, but they are not immune from liability when they act wholly in excess of jurisdiction.” See also,  Vickery v. Dunnivan,  279 P.2d 853, (1955). In Beall v. Reidy,  457 P.2d 376, the court ruled and determined, “Except by consent of all parties a judge is disqualified to sit in trial of a case if he comes within any of the grounds of disqualification named in the Constitution. In Taylor v. O’Grady,  888 F.2d 1189, 7th Cir. (1989), the circuit ruled, “Further, the judge has a legal duty to disqualify, even if there is no motion asking for his disqualification.”  Also, when a lower court has no jurisdiction to enter judgment, the question of jurisdiction may be raised for the first time on appeal. See DeBaca v. Wilcox,  68 P. 922.  The right to a tribunal free from bias and prejudice is based on the Due Process Clause. Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his/her property, then the judge has engaged in the crime of interference with interstate commerce; the judge has acted in his/her personal capacity and not in the judge’s judicial capacity. See U.S. v. Scinto,  521 F.2d 842 at page 845, 7th circuit, 1996. Party can attack subject matter jurisdiction at anytime in the proceeding, even raising jurisdiction for the first time on appeal, State v. Begay,  734 P.2d 278.  “A prejudiced, biased judge who tries a case deprives a party adversely affected of due process.” See Nelson v. Cox,  66 N.M. 397.

There is no time limit when a judgment is void:

Precision Eng. V. LPG, C.A. 1st (1992) 953 F.2d 21 at page 22, Meadows v. Dominican Republic CA 9th (1987) 817 F.2d at page 521, In re: Center Wholesale, Inc. C.A. 10th (1985) 759 F.2d 1440 at page 1448, Misco Leasing v. Vaughn CA 10th  (1971) 450 F.2d 257, Taft v. Donellen C.A. 7th (1969) 407 F.2d 807, and Bookout v. Beck CA 9th (1965) 354 F.2d 823. See also, Hawkeye Security Ins. V. Porter, D.C. Ind. 1982, 95 F.R.D. 417, at page 419, Saggers v. Yellow Freight D.C. Ga. (1975) 68 F.R.D. 686 at page 690, J.S. v. Melichar D.C. Wis. (1972) 56 F.R.D. 49, Ruddies v. Auburn Spark Plug. 261 F. Supp. 648, Garcia v. Garcia, Utah 1986 712 P.2d 288 at page 290, and Calasa v. Greenwell, (1981) 633 P.2d 555 at page 585, 2 Hawaii 395.   “Judgment was vacated as void after 30 years in entry,” Crosby. V. Bradstreet, CA 2nd (1963)  312 F.2d 483 cert. denied 83 S.Ct. 1300, 373 US 911, 10 L. Ed. 2.d 412.  “Delay of 22 years did not bar relief,” U.S. v. Williams, D.C. Ark. (1952) 109 F.Supp. 456.

– – – – –

A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v. Garcia, 712 P.2d 288 (Utah 1986).

A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court’s action amounts to a plain usurpation of power constituting a violation of due process. United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990)

Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, “‘relief is not a discretionary matter; it is mandatory.'” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)).

In order for a judgment to be void, there must be some jurisdictional defect in the court’s authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379.

A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.

“A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court”, OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907).

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v Thiboutot 100 S. Ct. 250.

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v Lavine 415 U. S. 533.

Though not specifically alleged, defendant’s challenge to subject matter jurisdiction implicitly raised claim that default judgment against him was void and relief should be granted under Rule 60(b)(4). Honneus v. Donovan, 93 F.R.D. 433, 436-37 (1982), aff’d, 691 F.2d 1 (1st Cir. 1982).

“A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time.” 261 Kan. at 862.

A judgment obtained without jurisdiction over the defendant is void. Overby v. Overby , 457 S.W.2d 851 (Tenn. 1970).

Although Rule 60(b)(4) is ostensibly subject to the “reasonable” time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the court vacated a judgment as void 30 years after entry. See also Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit.

Case quotes on the right to an attorney

Hmm, for some reason WordPress is glitching.

In any case, someone, either KDD or GJS put together this marvelous list of quotes regarding the right to your own attorney in the US.

For some reason, the right to your own attorney is such a hot mess of discord when a probate court gets involved.  I have heard tons and tons of complaints that a proposed disabled person asked for an independent attorney or an attorney of their chosing and got nothing.

Justice Connors said in her recent deposition, well, if I “really” thought someone was serious about wanting an attorney, then I would appoint one (from a court tied in list).

But I have never heard that the standard for having one’s own attorney of choosing either was “if they really wanted one” and/or the attorney of choice had to come from a court tied in list.

So, read on and enjoy the list.

I found an interesting case today, Johnson v. Zerbst, Warden 304 U.S. 459 (1938) the right to an attorney has been beautifully explained.  This case has been cited in most recent cases, too. but I like this statement the best:

“The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”
–       in US v. Jefferson, 2011
–       “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
–       – in Cogdell v. State, 1951
–       The courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights.
–       – in State v. Huckaby, 1997 and
–       Although the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent.
–       – in King v. Bobby, 2006
–       The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.
–       – in Monroe v. United States, 1978
–       “While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”
–       – in Roberts v. Bennett, 1966
“It is unfortunate, if petitioners lost their right to a new trial through ignorance or negligence, but such misfortune cannot give this Court jurisdiction in a habeas corpus case to review and correct the errors complained of.”
The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution. True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities — not involving the question of jurisdiction — occurring during the course of trial;[15] and the “writ of habeas corpus cannot be used as a writ of error.”[16] These principles, however, must be construed and applied so as to preserve — not destroy — constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened — not narrowed — since the adoption of the Sixth
*466 Amendment. In such a proceeding, “it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court”[17] and the petitioned court has “power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry . . . [involves] an examination of facts outside of, but not inconsistent with, the record.”[18] Congress has expanded the rights of a petitioner for habeas corpus[19] and the “.. . effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the Act of 31 Car. II, c. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to `dispose of the party as law and justice require.’
“There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. . . .
*467 “. . . it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, . . .”[20]

From Atty Ken Ditkowsky–his experiences with another miscreant

Excerpt from a question by another probate victim posed to KDD –
I read in your e-mail that disclosed that the Feds have been sighted looking into the Tyler case.   Justice delayed will not be justice denied if we get an honest, complete and comprehensive investigation of these financial exploitation cases.    Last I heard – Financial Exploitation of the elderly was a ‘felony’ when 7 million dollars is allegedly diverted.   Even ‘clout heavy’ relatives of nursing home moguls who participate in ‘aiding and abetting’ felonies are eligible to receive ‘free room and board.’   Indeed, a court order obtained under suspicious circumstances only implicates a Judge.    Greylord occurred about a decade ago but is still remembered!
Attorney Tom Brejcha is a ‘seasoned lawyer’ who will obviously make an record in your case and provide the Feds with more than sufficient evidence to memoralize any perfidy that appears directly or indirectly.   I do not believe that the United States Attorney just fell off the ‘truck!’
Good Luck on Monday – if Tom needs help we are ready willing and able to provide aid and comfort.   The Financial Exploitation and the Abuse of the elderly has to cease now and forever and those who aid and abet such conduct should be appropriately addressed.
Ken Ditkowsky