September 4, 2013
American Bar Association
Committee on Civil Rights
321 North Clark Street
Chicago, IL 60654-7598
Re: The growing scandal of ‘elder cleansing’ and the campaign to deny lawyers First Amendment Rights.
Dear Sirs,
Lawyers are being intimidated and denied their civil rights when they are faced with the situation of objecting to guardianships imposed on senior citizens that are essentially death sentences for the affected seniors[1]. The Mary Sykes case 09 P 4585 pending in the Circuit Court of Cook County is a poster board case and an example of every act of impropriety that you can imagine befalling a victim of ‘elder cleansing.’ Unfortunately, Mary Sykes is one of many that are pending nationwide.
Illinois has a terrific law that addresses the issue of guardianship, 755 ILCS 5/11a – 1 et seq. This law provides protection, supervision, and more protection for the alleged disabled person. The only problem with the law that lawyers can complain concerning is that it (755 ILCS 5/11a – 1 et seq) is ignored. In Sykes 1) the petition filed to institute proceedings is defective – it fails to disclose all the required information; 2) the venue is defective – Mary resides in DuPage – not Cook County; 3) the Sheriff reports that he has no record of Service of summons being had on Mary; 4) the protections of 11a -10(f) i.e. giving 14 days prior notice to close relatives was not provided. 5) Mary was denied an attorney, denied a jury trial, Mary was never proved to be incompetent by clear and convincing evidence and was denied every right determined necessary by the legislature, including that Mary had pending a verified petition for an order of protection against the very person that was appointed as her guardian. Sodini 172 Ill App3d 1055, Steinfeld 158 Il2d 1.
Outraged neighbors, family friends and relatives became frustrated that they could not reverse the “railroading of Mary” – who they believed was not incompetent. The family and friends then engaged me to look into the problem. I started my inquiry and then received a threatening telephone call from one of the two guardian ad litem. The GAL threatened me that if I continued my investigation I would be sanctioned by the court. As I had not submitted myself to the Court, I was not concerned. I also do not take kindly to threats! No matter, the attorney for the guardian also added a threat and they filed a meritless Rule 137 petition against me knowing that the Court lacked jurisdiction .
The threat resulted in sanctions being assessed against me in an amount of approximately $5000.00. As the Court had no jurisdiction, I accepted the sanction and to the disgust of the Judge, and the ‘judicial officials’ (including an attorney at the IARDC), I filed a successful appeal. The Guardian ad litem described the vacation and dismissal of the non-jurisdictional sanctions to be a “technicality”.
The IARDC got into the picture and I am being accused of conduct unbecoming a lawyer. My crime is not attorning to the ‘cottage industry’ of ‘elder cleansing.’ Apparently the IARDC does not believe in the efficacy of the First Amendment. To my utter surprise and dismay I discovered that not only am I not alone in this assault on the First Amendment, but, dozens of lawyers are routinely being intimidated into silence. If the intimidation is not successful, the lawyers are then subjected to possible loss of license and/or suspensions.
To illustrate the obscenity, I am certain that every lawyer in the American Bar Association (except those in the employ of some the State attorney regulatory agencies) has read the First Amendment, and is aware that one of the key protective acts is the right to complain to law enforcement. At my hearing board proceedings a lawyer for the IARDC wandered over to me on cross examination and asked me if I was repentant for writing a letter to the Attorney General of the United States. The gross lack of understanding of the ‘core values’ of America shocked me and the gallery of several dozen people who came to watch and lend support to me as I attempted to explain that ‘lawyers are also citizens of the United States of America. Most just of the onlookers shook their heads and remembered that in Greylord 15 judges went to jail and dozens suddenly retired.
Cutting legal hairs is non-productive; however, from time to time it has to be done. The Organized Bar should be addressing the issue of Attorney Civil Rights rather than sitting back and watching Lawyers being harassed and intimidated for protecting the rights of senior citizens. I from time to time copy the Illinois Bar Association as to my protests as I have paid dues for fifty some years and it appears that all the Bar does is pose for pictures, and avoid issues that affect the ability of their members to adequately and properly serve the community. The American Bar has demonstrated a similar disinterest and I am hoping that before we lose our civil and human rights the Lawyers’ Associations like the American Bar Association and the Illinois Bar Association will act to require those who seek to regulate us have at least the degree of understanding of the Constitution that the preteens of Illinois must demonstrate to obtain admission into high school.
Allowing attorneys to be intimidated by miscreants and sit quietly as ‘elder cleansing’ is protected by lawyer regulators is not in the best interests of anyone. The regulator’s jurisdiction is a delegation from the Supreme Court of the State. It is not a ‘Devine right!’ If the State does not have the right to censor the speech of a citizen (including a lawyer) the delegation of authority is absent in the regulator. The recent Supreme Court of the United States cases are clear in pointing out they protections of the First Amendment for everyone. See: Brown 131 S. Ct 2729, Snyder v Phelps 131 S. Ct 1207, Alvarez 132 S. Ct 2537, Citizen United 558 US 320.
We all know that every administrative body has a tendency to attempt to augment its authority. We laugh it off when it does not affect us with: “government cannot plan and execute a one car funeral” Unfortunately, Power corrupts and the greater the power the greater the corruption. The First Amendment has not been amended to eliminate the rights of attorneys to protection, nor is there a single appropriate distinction that can bar an attorney from exercising his total privileges and immunities under the Bill of Rights.
Mesibov vs Allan[2] 411 F 3d 712 addresses the issue of what happens when people walk into a courtroom. Can a court punish a lawyer for referring to the Judge, or his opponent in a derogatory manner? Indeed, it is well recognized that it can. How then is this squared with the First Amendment? The First Amendment does not create extreme rights. For instance, it does not give the right to cry ‘fire’ in a crowded movie theatre. Nor does the First Amendment give the right act crude, rude, or abusive in a courtroom. The Judge has a duty to keep order and to provide an orderly forum for the resolution of disputes.
The Mezibov case deals with a prosecutor retaliating against an attorney for the attorney exercising his first Amendment Rights. In reaching its decision the Court does not consider is the fact that the First Amendment is a two way street. It appropriately choses to focus on Mr. Mezibov’s claim and therefore it ignores that fact that the prosecutor’s (Mr. Allan) statements were protected under the First Amendment. That said, the prosecutor’s statements – while trite and stupid – were statements that made Mr. Mezibov subject to ridicule. The issue presented was not whether the prosecutor defamed Mezibov, but where he committed a civil rights violation in defaming Mezibov. Mezibov brought his action under 42 USCA 1983 as the prosecutor never stepped out of his public persona. The Court considered the action in that manner and ruled that the Court proceeding obviated any First Amendment protection – in this limited instance.
What the Mezibov Court did was explore the dichotomy of relationships and point out that in the limited specter of the courtroom – like the deck of a ship – the Judge is King. As the Judge is King no one else has any rights and the Judge takes complete charge. Thus, there is no Bill of Rights for anyone. Thus, the Court craved the familiar niche into the law that allows a Judge to issue a ‘gag order’ or punish a person in his Courtroom for contempt. If the judge reacts badly, the Court of Appeals provides a remedy.
HOWEVER, the Mezibov Court and the Supreme Court of the United States Supreme Court are both very careful to make it completely certain that except for this exception the First Amendment is alive and well. The Courts do not delegate any jurisdiction to the Bar regulators by these said decisions, but merely mark out certain exceptions to Constitutional protections[3]. Thus, I and every other lawyer is free to be critical of any public official, judicial official, IARDC official etc. at any time and place that I desire with few if any limitations. THIS IS WHAT THE FIRST AMENDMENT SAYS.
There is no general delegation to the IARDC or anyone else to regulate the words that I say! As a citizen who has a law degree no one can censor any statement I make no matter how outrageous, stupid, or embarrassing. Indeed, I can be critical of Mr. Larkin, Judge Connors, Judge Stuart, Adam Stern, Cynthia Farenga, Peter Schmiedel, Gloria Sykes, etc. Just to illustrate, I can even make jokes about each of them. That is my FIRST AMENDMENT RIGHT. Article 1 of the Illinois Constitution affirms this right. The Bivens type cases (directed at Federal officials), makes it clear that America has no second class citizens.
The Supreme Court of Illinois does not have the right to examine and determine that an Illinois citizen (including a member of the Court) does not have the right to be critical of Mr. Larkin, Judge Connors etc. It is not an ethical violation for, a judge, or even a lowly lawyer to be critical of members of the judiciary, the legislature, the executive branch etc. The First Amendment even allows ordinary citizens and lowly lawyers to publicly state that a Judge is dishonest. Indeed, I have an absolute right to write Attorney General Holder and complain that Mary Sykes’ liberty and property were taken from her. I can further complain that a Judge did nothing when Alice Gore’s fillings were removed so that a Court appointed guardian could retrieve the gold therein. (which was not inventoried). Indeed, I can even complain about the conditions that Ms. Wyman was held under. These conditions resulted in her being sexually assaulted.
The importance of the Mezibov case is the fact that it unmasked the intellectual dishonesty that is so clear in the State regulatory scheme that attorneys have to live with because their Bar Associations are impotent or uncaring. The Illinois Attorney Registration and Disciplinary Commission and its director, Mr. Larkin full well know that they have no jurisdiction to prosecute attorneys for exercising their First Amendment Rights. – His delegation is to regulate actions such as dishonesty. A lawyer who bribes a judge falls within Mr. Larkin’s jurisdiction – not the lawyer who reports the bribe to law enforcement. Quite frankly, until I became acquainted with ‘elder cleanings’ it never occurred to me that requesting law enforcement to do an HONEST complete and comprehensive investigation would be considered to be an offense for which I could lose my license.
This in a nutshell is the problem. My First Amendment Right allows me to say to my Bar Association that I am aggrieved that Mr. Larkin is disinterested in criminal actions of certain lawyers and judges who have clout and use the same to deprive a senior citizen of her liberty and property. My said First Amendment Right further gives me the absolute right to complain that Mr. Larkin (IARDC) is interested in silencing the report of lawyers to law enforcement who in good conscience are sickened by such avarice[4].
We pay dues to the Bar Associations to not play dead when lawyer rights are at stake, but, to stand up and be counted when an organization or organ of the State imposes a gulag, National Socialist principles, et al on legal practitioners and members of the Bar. It is too bad when the peon members of the Bar Association have to nod their heads when a lay person says: “what do you call it when a busload of lawyers drowns in the river?” “A good start!”
Members of the Bar in Arizona, California, Indiana, Ohio, Illinois and many other states are being intimidated. Most are afraid to speak their minds and have to deal with in addition to ‘elder cleansing,’ biased judges who will not recuse themselves, corrupt judges who everyone knows are wired but are afraid to speak out, etc. The State Bar regulators, like Mr. Larkin have taken it upon themselves to attempt to silence dissent and cries to law enforcement. This ‘ethical cleansing’ is going to either destroy any confidence in the judicial system or bring disgrace to the entire bar.
The Ten Commandments, which were the basis of law, have been removed from the house of the Law (the courthouse). Many of us (including the undersigned) believe that indeed the Ten Commandments created a hostile work environment for the lawyers and judges.
Where does the legal community and American Bar Association stand?
Yours very truly,
Kenneth Ditkowsky
KKD/djm
cc: Illinois Bar Association, Illinois Attorney Registration and Discipline Commission.
[1] While 11a – 3 of the act provides that the act is to be used only to provide a senior with the help that he or she required, an examination of the Court record reveals that the appointment of a guardianship is a loss of all liberty and property rights. The effect is a ‘death sentence!’
[2] The Supreme Court of the United States in adopting the Justice Black/Justice Douglas criterion to the enforcement of the First Amendment has blurred the distinctions that Bar groups have made to justify reining in ‘radical lawyers’ and lawyers who are active in opposing ‘racial cleansing,’ ‘ethnic cleansing,’ and other forms of social change abhorred by the ‘status quo.’
[3] In a lawyer’s home, when confronted by an irate teenager concerning some parental inconsistency the Bill of Rights is irrelevant. The First Amendment is a limitation on STATE POWER in just about every circumstance. There is no delegation to the Judiciary, the Executive, or the Legislative branches to determine that a lawyer cannot speak on the subject of x, y, or z.
[4] Elder cleansing is a three step process. Step one is to railroad a disabled person into a guardianship. Step two is to allow the guardian to ravage the assets of the ward. Step three is the ‘death of the ward.’ Dozens of affected citizens have written to their elected representatives, Mr. Larkin at the IARDC, the ACLU, and anyone who would listen. Blogs broadcast on a daily basis the atrocities; however, the only visible action is the ARDC and similar entities attempting to intimidate and silence the lawyers who speak out. Ever statutory protections such as 47 USCA 230 do not deter the lawyer regulators.
Ken Ditkowsky
MaryGSykes.com 