Another one of my favorite cases is the dog fighting/squish video one, namely, US v. Stevens,  which is about:

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002)

The case was regarding the following statute:

The statute restricts “visual [and] auditory depiction[s],” suchas photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal is intentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertain-ment Group, Inc., 529 U. S. 803, 817 (2000) (quoting
R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).

Notice, that the US Supremes said that the government had the  burden of proof to show validity of a statute that restricted speech.

ment has “permitted restrictions upon the content ofspeech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories longfamiliar to the bar,” Simon & Schuster, Inc. v. Members of
N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)—including obscen-ity, Roth v. United States, 354 U. S. 476, 483 (1957), defa-mation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citi-zens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which havenever been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).

The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

in an 8 to 1 decision, the SCOTS found the “anti squish video” law unconstitutional for being overly broad and impinging upon first amendment rights.

Dear Readers,

While this is FED court in Skokie, Illinois, with a fairly crochety old judge, Judge Machnik, he is doing his job.  And to his credit, opposing counsel, while trying to get away with what he can, realizes that lack of jurisdiction is a very serious problem.

In the KQ case, Karen went through hard times, she was unable to pay her bills and then received some very bad advice from a short sale attorney who was advising people at seminars not to pay on their mortgages and just do short sales to get some debt relief.

Karen says he never told her the real story, that is short sales are very, very difficult to do.  They require a dedicated team of professionals, from two hard working, highly experienced Realtors, in this case Blair Lele, and many attorneys–most of which will get paid pennies on the dollar.  And then the short sale attorney never mentioned the hundreds of hours of work on the paper work, loading up documents to obscure websites, dealing with professionals that are under short deadlines but have 50 loans to process ahead of yours so you have to keep emailing and calling to keep it at the top of the pile.

The deal on a foreclosure is that your credit score will only drop 50 points for 2 years with a short sale vs. 200 to 250 points for a foreclosure for 5 years.  So people want to do them.  And everyone wins.  If a bank forecloses,, then the bank sends the property to a sheriff’s sale where they get pennies on the dollar.  Or, even worse, the bank “manages” the property themselves, puts it on the market themselves and it get destroyed by tenants or squatters and they get pennies on the dollar.  Banks do not make for good property managers.  They generally handle money and not property.

In this particular case, Karen has been working her butt off together with Realtor Lele to find a buyer and they actually found an amazing buyer who has stuck through the short sale process for many, many long months.  Then along comes the Home Owner’s Association, and apparently portions of that are pretty much evil and greedy while others understand the process and want to do the right thing.  The good part of the evil twin HOA is nice and cooperative and helps Karen and knows they will be paid in full in the end.  But some other darker portion of the HOA hires an uncaring lawyer, he files suit for the $12,000 in HOA fess, which I agree, they can do this, it does not make a whole lot of sense given the short sale, but they have the legal right to do this.

Fast forward 4 months.  Karen has been working with the good side of the HOA, has numerous emails back and forth assuring them the short sale is okay, they will get paid, etc. and they have her phone number, mailing address, and all her information.  Now she finds out that the HOA has sued her, they served her mother and not her, she asks for papers from the HOA and receives nothing, contacts me to investigate and we find out the following.

A judgement for $12,000 AND possession of the unit was entered in October and stayed until December, and then on top of that, she was not served, her mother was (and no, at age 50+ Karen does not live with her mother, she moved to California for work, immediately lost her job there, is struggling to get her business of interior design back on its footings), but Karen was never served.  To top it off, the evil part of the HOA files a false affidavit stating “after due inquiry” they could not find her, which is ludicrous because Karen has been emailing them back and forth, if you Google her you find her front page, etc.

In summary, jurisdiction is lacking for the assertion of personal jurisdicion for the money judgment (you MUST have personal jurisdiction to get a money judgment), and the false affidavit the HOA could not find Karen “after due inquiry” defeats their in rem or against the property judgment for possession.

The first time I went to court, opposing counsel and the court was soooo angry with me for bringing up jurisdiction, the judge struck my pleading and told me to come back in 10 days and he would hear it then. (This is a lawyer’s job, sometimes when you are the bearer of extremely bad news, the court will nit pick your pleading and strike it.  In this case we filed an appearance, but the clerk lost it between the Daley Center and Skokie–another plea for electronic filing, please).

So we redrafted the pleading, filed an appearance from by driving the 40 miles back and forth to Skokie because Dororthy Brown can’t get her IT act together, and went back to court on Friday at 10 am.

Much better reception.  As it slowly sunk in that there realio trulio was no jurisdiction, the matter was set for a briefing schedule (even though I did argue it the prior time in court), and as a Valentine’s day present, opposing counsel withdrew the eviction from the sheriff so the short sale can proceed.

Thank you, thank you.

So I want everyone to know, despite all the horror stories on this blog, yes, Virginia, some days the court AND opposing counsel does their job and we find the due process clause of the US constitution and the Illinois constitution finds some respect in court.

Whew.

Let’s all just hope and pray that short sale goes thru next week, as expected.

Now I know to many of you, child porn is thing that is distasteful to 99% of the population, I get that. But just how far does the First Amendment reach, and does it reach into the areas of child porn at all, even if the porn is fake, animated, uses adults and not children and no child is harmed.  Does it reach so far, that no one can make a movie or screen play about how a child was a victim of that because you could never get an actor for the younger child victims?  What if the child actor were shielded and the act was faked for acting?  All good questions.  Apparently the US Supremes did not think it necessary to prevent fake child porn, or stop the presentation of screen plays and plays that show real life stories but the child is not harmed and is protected during the production.

In any case, I do recall the issue of a website that said “bonsai kittens” make good pets and buy one here.  You can keep it in a jar on the shelf and only feed and water it and clean it up once a month and it will remain cute and fluffy with hardly any trouble at all.  Of course, the concept is abusive, but for anyone with half a brain, it’s a joke.  But will PETA and the Humane Society of the US protect fake animals.  Will they protect animated animals subject to abuse?  And what about all those horses in war movies where they say “no animals harmed or abused?”  Do we have to halt those pictures?  What would John Wayne say?

PETA and the Humane Society of the US responded to fake “bonsai kitties” and said they have enough to do protecting real kitties from abuse and it will not be their mission to protect fake kitties.

So here goes with the fake child porn decision:

Ashcroft v. US (and remember that Ashcroft once spent $10,000 of taxpayer money to cover the bare titty of Justice with fancy velvet drapes.  I didn’t get that one.  A $12 bra from Walmart wasn’t enough?  Please.

The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. § 2256(8)(A), but also “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” § 2256(8)(B), and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct,” § 2256(8)(D). Thus, § 2256(8)(B) bans a range of sexually explicit images, sometimes called “virtual child pornography,” that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the “appears to be” and “conveys the impression” provisions are overbroad and vague, chilling production of works protected by the First Amendment….

Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards. The CPPA also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute’s prohibitions. If those movies contain a single graphic depiction of sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work’s artistic merit does not depend on the presence of a single explicit scene.

the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the sexual abuse of children. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts. The Government’s argument that these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech, see id., at 762, suffers from two flaws. First, Ferber‘s judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the First Amendment’s protection. See id., at 764-765. Second, Ferber did not hold that child pornography is by definition without value. It recognized some works in this category might have significant value, see id., at 761, but relied on virtual images — the very images prohibited by the CPPA — as an alternative and permissible means of expression, id., at 763. Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding, it provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well. Pp. 249-251.

(3) The Court rejects other arguments offered by the Government to justify the CPPA’s prohibitions. The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See, e. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 130-131. That the evil in question depends upon the actor’s unlawful conduct, defined as criminal quite apart from any link to the speech in question, establishes that the speech ban is not narrowly drawn. The argument that virtual child pornography whets pedophiles’ appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, Stanley v. Georgia, 394 U. S. 557, 566, absent some showing of a direct connection between the speech and imminent illegal conduct, see, e. g., Brandenburg v. Ohio, 395 U. S. 444, 447 (per curiam). The argument that eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well is somewhat implausible because

Page 237

few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice. Moreover, even if the market deterrence theory were persuasive, the argument cannot justify the CPPA because, here, there is no underlying crime at all. Finally, the First Amendment is turned upside down by the argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. See Broadrick v. Oklahoma, 413 U. S. 601, 612. The Government’s rejoinder that the CPPA should be read not as a prohibition on speech but as a measure shifting the burden to the accused to prove the speech is lawful raises serious constitutional difficulties. The Government misplaces its reliance on § 2252A(c), which creates an affirmative defense allowing a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is insufficient because it does not apply to possession or to images created by computer imaging, even where the defendant could demonstrate no children were harmed in producing the images. Thus, the defense leaves unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones. Pp. 251-256.

(b) Section 2256(8)(D) is also substantially overbroad. The Court disagrees with the Government’s view that the only difference between that provision and § 2256(8)(B)’s “appears to be” provision is that § 2256(8)(D) requires the jury to assess the material at issue in light of the manner in which it is promoted, but that the determination would still depend principally upon the prohibited work’s content. The “conveys the impression” provision requires little judgment about the image’s content; the work must be sexually explicit, but otherwise the content is irrelevant. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that such scenes will be found in the movie. The determination turns on how the speech is presented, not on what is depicted. The Government’s other arguments in support of the CPPA do not bear on § 2256(8)(D)

only Renhquist and Scalia dissented from overturning this broad, unconstitutional statue.

I have to admit, I don’t like child porn, but the statute was overbroad.  Sometimes you have to tell the story of abuse victims to keep the concept of child porn being wrong alive.  And to protect fake children from fake child rape is too much even for me.  If that is your fantasy, have at it, but leave me out of it.  I will protect your right to view it in your own home on your own computer or with fake dolls.  I’m not getting into that.

So, from a distasteful case, we see the outer limits of our first amendment rights.

I don’t like fake kitties stuck in fake jars for their entire lives, and I don’t like fake child porn, but neither to me is criminal activity or even a civil activity to be quashed.  Nor do I think these activities are gateway drugs into something harsher.  They’re merely a weird strange enjoyment of  the minority of the population which harms no one.

95%+ of real rapes are never solved and the perps are never brought to justice.  The vast majority of crimes are never solved and no one is prosecuted–let alone convicted.  That’s the reality of the world.  If we can’t get the real world prosecuted, why are we even worried about a fake world?

I have to agree with this 7 to 2 decision.  And it wasn’t even the moderates that found the statute to be permissibly overbroad.  Some of the justices finding the statute to be overbroad were fairly conservative.  We really don’t need any think police.  Our thoughts are ours.  Our fake movies, books and thoughts should be ours too.

Again, this is a continuing series so the ARDC “gets it” and stops going after attorneys who publish the truth–that the courts are corrupt, that justice is not being done sometimes, and that it’s okay to make fun of the attorneys who operate without jurisdiction.

To go after an attorney that reports corruption and wrongdoing is pretty much judicial porn.  It’s shooting the messenger and it’s wrong, just plain wrong.

Brief Synopsis:  Nancy Vallone has a midly autistic niece, Danielle, who was ripped out of her home 5 years ago in an abusive guardianship and placed in a state run tied in home because the proprietors get $273,000 per year for caring for her.

Since that time, Aunt Nancy knows that Danielle has been beaten, she has chipped, uncared for teeth from that, she is locked inside each day, every day, has limited visitors and complains she dislikes the staff and nursing home.  It is an abusive environment.

Danielle desperately wants to go home to her dear Aunt Nancy and have her teeth fixed, be provided with a stimulating, loving and caring environment where she is free to visit with friends and family and lead as normal a life as possible.

The situation is getting serious because Danielle has taken to cutting herself and acting out against her unfair captors.

Please read Aunt Nancy’s pleas below and provide whatever help you can:

Dear Mrs. Martin,
While we understand that you have someone talking to Danielle it is without a doubt not enough to address the deplorable circumstances and environment Danielle Rene Murphy, has endured the last 5 yrs. 
Her Health and Safety , The Constitution, Her Civil rights  US v. Olmstead, Rosie v Romney , Federal Medicaid Social Security Tite 19, 504/508 rehab, Due process are not to be debated and does not take into account the neglect and abuse. 
It appears All DODD and APSI philosophy, mission statement, rights are meaningless 

We respectfully request DoDD and APSI guardianship be terminated due to the multiple fraudulent actions under which it was obtained  through the use of false information, coercion, perjury , slander, defamation , NO DUE PROCESS, improper application and procedure by violating ARS 14.12301 , no hearing, Danielle  was not present, Danielle was denied an attorney,  
NO Jurisdiction, incorrect venue, discrimination and violation of of DOJ OCR ADA title II and III, IDEA and retaliation making their guardianship 
"null and void ab initio" without Jurisdiction .

Danielle is past the point of waiting. She absolutely hates every minute, has written about her disdain and is smart enough to know what has been done. She wants to be returned home . 
In the last month she is acting out the rage of a cornered animal  By cutting her wrist, stomach and throat and now attaching staff.   As quoted,  this is the failure of the system . 
A beautiful girls with autism has had to endure a horrible injustice and inhumane environment. 
Her life has been ruined by APSI for 5 yrs she can never get back .  

We are formally requesting Danielle be moved to a group home or home in Niles, Ohio since  Cuyahoga County was never established residency. 
Trumbull County does not use group homes. We have included links to various organizations in our local area who are able to provide necessary services for Danielle. Please take into consideration what is best for Danielle as well as the Disability Bill of Rights and do the right thing; return Danielle to her home, community and family.

We are not alone in this struggle we have the support of other families in the same situation with APSI and numerous other support organizations.
We will never give up .

Respectfully Submitted,
Nancy Vallone RN, MSN, BSN, CNS

www.ditkowskylawoffice.com

The attached bill shows a new balance of $342,368 last year to end of September with much more to come.

I will be glad when all these cases are remedied and justice is assured in Probate.

Cost of Corruption to Sept 30, 2012

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.

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.

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

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

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 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).

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.

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 of

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.

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

www.ditkowskylawoffice.com

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.

Joanne

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.

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.

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

SUPREME COURT OF THE UNITED STATES

376 U.S. 254
New York Times Co. v. Sullivan
CERTIORARI TO THE SUPREME COURT OF ALABAMA
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.

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]

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).

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.

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.)

Background

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]

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?

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

www.ditkowskylawoffice.com

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.

JoAnne

As you will recall, during oral argument (the transcript is posted on this blog),  Attorneys Kimberly Timmerwilke McKenzie and Sharon Rudy argued that Atty JF Heckinger represented John Wyman (despite the fact that Atty Heckinger never called or mailed John Wyman any written notice of hearing on the petitioner stating the time, date and place of hearing to declare Winifred Carol “Carol”) Wyman incompetent, as required by the Illinois Probate Act, and for which the case In re Soldini (also on this blog) makes this a jurisdictional requirement.)  Further the Illinois Act requires that the Petitioner mail the appropriate notice to all parties listed in Exhibit A, and Exhibit A was defective on its face because it did not list all the adult siblings and sisters of Carol.  The Illinois Probate Act does not say call some atty you think might be representing someone and talk about it. There are specific and solid groundrules for all of the notice requirements.

I previously submitted a report to the court following my conversation with Attorney Leinen confirming he never filed an appearance, he never represented ANY party at all in the Probate proceeding or appeared in that matter, and he further never received any notices from SRR regarding the hearing on Powell Wyman’s Petition for Guardianship of his wife, Carol.

Below is his affidavit and an updated Report to the Court.

We still do not have an Order from Judge Fabiano.

There is still sufficient time for each of SRR, KTM and Judge Fabiano to do the right thing, and in the face of overwhelming evidence that there was no jurisdiction for this probate proceeding for 3 years–dismiss this lawsuit, let Carol return home and order that Powell fiile an accounting for all assets.

Let’s hope and pray everyone does the right thing.  Carol wants to go back to her own home and John says he will go with her to protect her and to fix up her home so she can be where she wants and see her grandchildren on a regular basis.  There are babies in this family that she loves to hold and cuddle and let’s hope for that to happen.

Atty Ron Leinen Afft and Updated Report to Court 11/27/12

Below are the documents to file an appeal for lack of jurisdiction based upon failure to serve the notice of hearing by the petitioner 14 days in advance of the date, time and place of hearing to all adult siblings and children.

I also believe in this case, the Respondent, an alleged disabled person, was not served with a summons or complaint.  Data from the nursing home indicates that at the time or shortly there after Ms. Wyman was scoring 26 to 29 on “mini mentals” indicating that she did not need to be in a nursing home (against her will–read the book), nor did she need to have a guardian appointed for her.  But she wrote in her diary she wanted to have an atty to fight the guardianship but neither the GAL nor the judge ever appointed one for her.

This is a familiar song in our nation’s probate courts.

Read the notice of appeal and docketing statement, Motion for an Expedited appeal (because Mrs. Wyman is 80 and they are threatening to sell her house.)

John Howard Wyman tells me he is proud to share these appeals documents and he hopes it helps others and he hopes it will start to uncorrupt our very corrupt probate court system.

In re Wyman–Notice of Appeal, Motion to Expedite Appeal, Docketing Statement

If the link breaks https://docs.google.com/open?id=0B6FbJzwtHocwVklQbEFmMmhuR0U

One of the issues that popped up in the Wyman case, and one which is of central importance is whether or not John Howard Wyman waived his jurisdictional defect by filing motions without first filing an objection to jurisdiction.  John Wyman did not know at the time that he could object to jurisdiction.  Now he had an attorney, JF Heckinger, but Atty Heckinger never told him that he could object.  Two years have passed, so there is no action against Heckinger for malpractice, perhaps breach of contract, that limitations period is 5 years, but not malpractice.

In any case I found one case which says that if you file pleadings, and appear, you might waive your Soldini notice jurisdiction, HOWEVER, this is a case where apparently there was only one person that required this notice, and he waived that notice.

In the cases of Tyler, Gore, Bedin, Wyman, etc.  there were numerous adult siblings and children not served and the court took note of that in In re Sodini.  Further, in the vast majority of these cases, grandma and grandpa never received a summons and complaint 14 days in advance of any hearing on a petition for guardianship, and that is required by statute.  It would appear that any “interested party” can file for lack of jurisdiction based upon non-service of other siblings or adult children, or lack of service of a summons and complaint upon the Respondent.

From  In re Estate of Pellico, 916 N.E.2d 45, 334 Ill.Dec. 12 (Ill. App., 2009) it is explained further:

Subject matter jurisdiction refers to a court’s power to adjudicate the general question involved and to grant the relief requested. In re M.M., 15,6 Ill.2d 53, 189 Ill.Dec. 1, 619 N.E.2d 702 (1993); In re Dontrell H., 38,2 Ill.App.3d 612, 321 Ill.Dec. 108, 888 N.E.2d 627 (2008). In the general civil context, circuit courts enjoy, with limited exceptions, “original jurisdiction of all justiciable matters.” Ill. Const.1970, art. VI, § 9; see Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509 (2001). As our supreme court explained in Steinbrecher:

“Effective January 1, 1964, an amendment to article VI replaced limited jurisdiction: `Circuit Court[s] shall have unlimited original jurisdiction of all justiciable matters.’ Ill. Const. 1870, art. VI, § 9 (amended 1964); accord Ill. Const.1970, art. VI, § 9 (`Circuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction’). This amendment created a single integrated trial court vested with jurisdiction to adjudicate all controversies.

* * *

An administrative agency, like the pre-1964 circuit courts, is powerless to

[916 N.E.2d 55]

act unless statutory authority exists. City of Chicago, 65 Ill.2d at 112[, 2 Ill.Dec. 711, 357 N.E.2d 1154]. An administrative agency is a statutory creature with no general or common law power. City of Chicago, 65 Ill.2d at 112-13[, 2 Ill.Dec. 711, 357 N.E.2d 1154]. Conversely, a circuit court is a court of general jurisdiction, which need not look to the statute for its jurisdictional authority.” Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509.

Further, once a circuit court obtains jurisdiction, an order will not be rendered void merely because the court makes an error of law in rendering its judgment. People v. Davis, 156 Ill.2d 149, 157, 189 Ill.Dec. 49, 619 N.E.2d 750 (1993). “Accordingly, a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law[,] or both.” Davis, 156 Ill.2d at 157, 189 Ill. Dec. 49, 619 N.E.2d 750.

Accordingly, in this case, the circuit court erred when it ruled that it lacked subject matter jurisdiction. Although the circuit court and the parties attempt to determine whether the circuit court had subject matter jurisdiction by looking to section 11a-18(d) of the Probate Act, neither that statute’s section nor any other statute restricted the circuit court’s jurisdictional authority. See Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509. The circuit court, a court of general jurisdiction, had original jurisdiction of all justiciable matters (Ill. Const. 1970, art. VI, § 9), including the one at bar, and did not need to look to the Probate Act for jurisdictional authority. See Steinbrecher, 197 Ill.2d at 529-30, 259 Ill. Dec. 729, 759 N.E.2d 509. Whether the circuit court acted improperly pursuant to section 11a-18(d) of the Probate Act was a question of whether it erred in determining the law, not a question of subject matter jurisdiction. See In re Marriage of Chrobak, 34,9 Ill.App.3d 894, 285 Ill. Dec. 369, 811 N.E.2d 1248 (2004). Accordingly, we agree with the Public Guardian and the GAL that the circuit court erred when it determined that it lacked subject matter jurisdiction to order payment of guardianship fees, because it, indeed, had subject matter jurisdiction over the issue and the trusts.

To support Gregory’s argument that section 11a-18(d) of the Probate Act limited the circuit court’s jurisdiction, Gregory cites In re Estate of Gebis, 18,6 Ill.2d 188, 237 Ill.Dec. 755, 710 N.E.2d 385 (1999), for the proposition that “[w]hen a court’s power to act is controlled by statute, the circuit court is governed by rules of limited jurisdiction and must proceed by the statute’s stricture.” We note that the circuit court also relied on Gebis. The circuit court’s and Gregory’s reliance on Gebis was and is misplaced.

In 1999, prior to our supreme court’s decision in Steinbrecher, the court in Gebis limited a circuit court’s jurisdiction where the “circuit court’s power to act is controlled by statute.” Gebis, 186 Ill.2d at 193, 237 Ill.Dec. 755, 710 N.E.2d 385. The Gebis court reasoned that in those cases, “the circuit court is governed by the rules of limited jurisdiction and must proceed within the statute’s strictures.” Gebis, 186 Ill.2d at 193, 237 Ill.Dec. 755, 710 N.E.2d 385. However, Gebis relied on In re M.M., 15,6 Ill.2d 53, 189 Ill.Dec. 1, 619 N.E.2d 702 (1993), which was overruled regarding its subject matter jurisdiction holding by three subsequent supreme court cases, People ex. rel. Graf v. Village of Lake Bluff, 206 Ill.2d 541, 552-54, 276 Ill.Dec. 928, 795 N.E.2d 281 (2003), Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 337, 264 Ill. Dec. 283, 770 N.E.2d 177 (2002), and Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec.

[916 N.E.2d 56]

729, 759 N.E.2d 509 (the Belleville trio). In In re Alex T., 37,5 Ill.App.3d 758, 314 Ill.Dec. 85, 873 N.E.2d 1015 (2007), we explained the holdings of the Belleville trio as follows:

“Since the Steinbrecher decision, the supreme court has continued to reject the principle of statutorily limited jurisdiction in general civil cases while accepting it in criminal cases, at least those involving the trial court’s authority to impose a specific sentence. On the civil side, the supreme court in Belleville Toyota and Graf reaffirmed its position that the legislature cannot limit the circuit court’s jurisdiction.” Alex T., 375 Ill.App.3d at 762, 314 Ill.Dec. 85, 873 N.E.2d 1015.

Therefore, the citation to Gebis for the proposition that the circuit court’s subject matter jurisdiction was limited by section 11a-18(d) of the Probate Act fails. The circuit court had original subject matter jurisdiction over the trusts. See Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509.

*****

On appeal, the Public Guardian and the GAL also argue that the circuit court erred by finding that it lacked personal jurisdiction over Gregory as trustee of the Evelyn and Peter Pellico trusts. The Public Guardian and the GAL contend that Gregory was properly served as an interested person and that he waived objection to personal jurisdiction by filing responsive pleadings and motions and representing himself to the court as the trustee before objecting to personal jurisdiction. Not surprisingly, Gregory argues, both in his appellee’s brief and in his own appeal, that the circuit court lacked personal jurisdiction over him as the trustee because no service of process was served on him as the trustee, he first appeared as a pro se litigant, he requested a continuance to obtain counsel, and objection to jurisdiction was made “at the first practicable opportunity.”

We review de novo a circuit court’s dismissal of a complaint for lack of personal jurisdiction. KSAC Corp. v. Recycle Free, Inc., 364 Ill.App.3d 593, 594, 301 Ill.Dec. 418, 846 N.E.2d 1021 (2006). A circuit court can acquire personal jurisdiction over a party by the consensual authority of a voluntary appearance. GMB Financial Group, Inc. v. Marzano, 385 Ill.App.3d 978, 984, 326 Ill.Dec. 81, 899 N.E.2d 298 (2008).

Before 2000, a defendant seeking to appear before the circuit court to contest the exercise of personal jurisdiction was obliged to file a special appearance pursuant to section 2-301(a) of the Code of Civil Procedure (Code). 735 ILCS 5/2-301(a) (West 1998). Effective January 1, 2000, the amended section 2-301(a), and the entirely new section 2-301(a-5) (see 735 ILCS 5/2-301(a-5) (West 2006)), contain an explicit waiver provision that now provides for waiver of an objection based on personal jurisdiction only if the party files a responsive pleading or a motion (other than seeking an extension of time to answer or otherwise appear) before filing a motion asserting the jurisdictional objection. KSAC, 364 Ill.App.3d at 595, 301 Ill.Dec. 418, 846 N.E.2d 1021. In KSAC this court explained: “A pleading `consists of a party’s formal allegations of his claims or defenses,’ and a motion is `an application to the court for a ruling or an order in a pending case.'” KSAC, 364 Ill.App.3d at 597, 301 Ill.Dec. 418, 846 N.E.2d 1021, quoting In re Marriage of Wolff, 35,5 Ill. App.3d 403, 290 Ill.Dec. 1011, 822 N.E.2d 596 (2005).

[916 N.E.2d 57]

In this case Gregory not only appeared before the circuit court, albeit pro se, but filed a responsive pleading to the Public Guardian’s emergency petition for guardianship, entitled a “Responsive Declaration of Gregory Pellico to Robert I. Mork’s Emergency Petition for Guardianship of the Person and Estate of Evelyn Pellico,” before his attorney filed an objection to personal jurisdiction. This “Responsive Declaration” contended that, if any guardian were appointed on Evelyn’s behalf, it should be her sister. Also, prior to Gregory’s attorney’s objection to jurisdiction, Gregory represented himself as trustee of his mother’s “trust” to the circuit court. Because Gregory filed a responsive pleading and represented himself as trustee to the circuit court before his attorney objected to personal jurisdiction, Gregory waived any objection to personal jurisdiction. See 735 ILCS 5/2-301(a), (a-5) (West 2006).

So, if you intend to object to jurisdiction, an objection to jurisdiction must be your first pleading–ie, a motion or response.  If you file nothing, then there it would seem that you have not waived your right to object to jurisdiction.

I will continue to look at cases, but this case seems quite important where the Probate courts are dealing primarily with pro se litigants, summonses and complaints are not served and many adult children and siblings are not being served their Sodini notices.

Dear Readers;

One of the interesting things is that I have learned if you want to (often because you have to) file a complaint with the ARDC, it is best to fax it in after hours.  I can only assume that the staff there, when they see a large fax come in, they shut off the fax machine for awhile.  I note longer faxes (my 15 to 25 or more pages, which I receive at my office all the time, no problem on my $2500 copier), do not get through during the day.  My suggestion to the ARDC is to just get an efax for $12 per month for longer faxes which will just come into any email account.

While a I sent Atty Black at the ARDC a copy of John Howard Wyman’s book last month, apparently no investigation has come from that.  So I faxed in a formal complaint during the day last week and my efax (which I love), came back as “unsuccessful transmission.”

Bummer.

So yesterday, I sent her the faxes.  You know, the one with John’s highly excellent 48 “talking points” he sent to the FBI to investigate and also to the US attorney’s offices Atty John McKenzie, who “promised to start an investigation”, but then it turned out he was investigating Kim Timmerwilke a bit too closely and they got married instead — breaking up two long term relationships.

In any case, attached is a copy of the complaint regarding John Howard Wyman’s case wherein the court is operating without jurisdiction for 3 years, and then when I went in on the hearing, the attys just lied about everything.  Judge Fabiano never issued and order, so then what happened, she sent a letter asking the attys Timmerwilke-McKenzie to turn in their “fee petitions” so she can award sanctions against “the parties.”

Another prime example of shoot the messenger and not the miscreant.

Monday out goes the Emergency Notice of Appeal, Docketing Statement and Request to Prepare the record in response to all of this nonsense.

Of course, Attys Timmerwilke and Rudy could have simply done the right thing and asked the judge to dismiss the case based upon lack of jurisdiction and just told the truth, but I guess that did not occur to them.

The record is clear.  No Sodini notices were served on the adult sisters and all the children.  There is no testimony, no certificates of service in the file, and it appears that Winifred Carol Wyman was in the hospital and there was no summons, complaint and affidavit of service.

No basics.

See the attached complaints at:

ARDC Wyman Complaint File No. 1

ARDC Wyman Complaint File No. 2

I don’t like filing these.  It would have been easier if Attys Rudy and McKenzie would have just said, “your honor, I’m sorry, but there is no jurisdiction.  We looked at our files and the court files and we could not find any Notice of Time, Date and Place of Hearing served 14 days in advance upon all the adult children of Carol Wyman.  We are truly sorry.  A serious mistake was made for which we humbly apologize.”

I have had to dismiss cases for lack of jurisdiction (generally in FED where the 5 day note was grossly improper, not served personally, etc.) and you just have to do it as an (honest, ethical) attorney.

Have a good day

JoAnne

PS–on the second try, the longer faxes went through, no problem. But that’s just a pain for me.