Blank Pleading Template With Line Numbering -- Word · Web viewDecember 16, 2008 Scheidler...

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Superior Court of Kitsap County

William Scheidler,Petitioner/Plaintiff,

V

James Avery, individually and in his official capacity as Kitsap County’s Assessor And

Alan Miles, Individually and in his official capacity as Kitsap County’s deputy prosecutor.

And

M. Karlynn HaberlyIndividually

Kay S. SlonimIndividually

Respondents/Defendants

))))))))))))))))))))))))))))))))))))

Case # __________________

Complaint for damages.

Petition for judicial review of administrative decision.

RCW 34.05.530 RE: Board of Tax Appeals Docket No.: 11-507 to 11-510

In the alternative, per

RCW 34.05.534(3)(a)(b)(c) … grave irreparable harm …

Violations of:AMENDMENT 1, 5, 7, 14 OF THE U.S. CONST; WA CONST ARTICLE 1, SECTION 1-5, 10, 21, Americans with disabilities act; 42 U.S.C. Title 42 1981, 1983, 1985; Racketeering, Obstructions of justice, Extortion and other offenses too numerous to list.

Class Action Trial by Jury demanded

This is a draft compliant, Scheidler intends to submit an amended complaint as soon as possible. See GR 33 accommodation request attached.

Complaint 1WILLIAM SCHEIDLER , Pro Se1515 Lidstrom Place E.Port Orchard, WA 98366360-769-8531 [email protected]

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Service per RCW 34.05.542To: James Avery, c/o Alan Miles.To: Alan MilesTo: M. Karlynn HaberlyTo: Kay Slonim, Board of Tax AppealsTo: Attorney General

Class Action Complaint;State Ex Rel & Quo Warranto

Certification of Class Action status demanded. Common question of law exists. Is

the Assessor bound to the express language of the law? Common questions of fact

exist. Is the Assessor (Avery) defrauding county citizens by “incorrectly publicizing the

controlling law and the qualifications required by it”?

“Common Questions of Law or Fact — Predominance — Test. The predominance of common issues over individual issues requirement for class certification under CR 23(b)(3) is satisfied if the issue shared by the class members is the dominant, central, or overriding issue in the litigation. A single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions. The predominance requirement is not defeated merely because individual factual or legal issues exist or because such individual issues might take some time to resolve.” SCHNALL v. AT&T WIRELESS SERVS 139 Wn. App. 280, (2007)

Action at Law;Trial by Jury Demanded

Appellant William Scheidler demands a jury trial1 per Article 1, Section 21, RCW

4.44.090, and RCW 4.40.060 to decide issues of fact: Has the conduct of these

defendants violated law and caused harm.

“¶48 Article I, section 21 of the Washington Constitution provides that "[t]he right of trial by jury shall remain inviolate." This constitutional provision has been consistently interpreted as "guaranteeing those rights to trial by jury which existed

1 RCW 34.05.020 states, “Nothing in this chapter may be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. Every agency is granted all authority necessary to comply with the requirements of this chapter through the issuance of rules or otherwise. No subsequent legislation shall be held to supersede or modify the provisions of this chapter or its applicability to any agency except to the extent that such legislation shall do so expressly.”


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at the time of the adoption of the constitution." Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 365, 617 P.2d 704 (1980); In re Marriage of Firchau, 88 Wn.2d 109, 114, 558 P.2d 194 (1977). "[T]here is a right to a jury trial where the civil action is purely legal in nature." Brown, 94 Wn.2d at 365. (inter alia) RCWA 4.40.060 requires a trial by jury on issues of fact in actions to recover only money or in actions to recover specific personal or real property, unless a jury is waived or the matter is referred to a referee.” 149 Wn. App. 627, GREEN V. HOOPER (2009)

“It is the role of the jury to apply the law to facts presented at a trial. See Champagne v. Dept of Labor & Indus., 22 Wn.2d 412, 419, 156 P.2d 422 (1945). 168 Wn.2d 1, STATE V. FRY [CHAMBERS, J. (concurring)]

Jurisdiction and Venue.

The Superior Court has jurisdiction, as there are questions of law under RCW 2.08.010 and RCW 2.08.010 per RCW 34.05.530-535, and the amount in controversy exceeds the minimum threshold.

Venue is proper as all parties reside in Kitsap County or were in, or associated with, Kitsap County in the commission of the alleged violations.

Parties:Plaintiff

William Scheidler is an U.S. Citizen and resident of Kitsap County, WA.

Defendants:James Avery is an U.S. Citizen and resident of Kitsap County and is employed as Kitsap County Assessor.

Alan Miles is an U.S. Citizen and was in Kitsap County in the commission of the alleged offenses; and is employed as Kitsap County Deputy Prosecuting Attorney.

M. Karlynn Haberly is an U.S. Citizen and resident of Kitsap County and is Kitsap County Superior Court Judge.

Kay Slonim is an U.S. Citizen and Chair of the WA State Board of Tax Appeals.

NOTE: All Defendant Immunities and Defenses Lost when Defendants Act Without Jurisdiction.

Violations of Due Process and Constitutional Principles Remove Jurisdiction. Defendants violated Procedural Due Process, Separation of Powers and Substantive Due Process. When a party violates Due Process or Constitutional constraints, jurisdiction is lost. See "Johnson v Zerbst", 304 U.S. 458, 58 S.Ct. 1019; "Wuest v. Wuest", 127 P2d 934, 937. "Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of jurisdiction", "Pure Oil Co. v. City


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of Northlake", 10 Ill.2d 241, 245, 140 N.E. 2d 289 (1956); "Hallberg v Goldblatt Bros"., 363 Ill 25 (1936).

I THE REMAINDER OF THIS PLEADING IS IN THE FORMAT DEFINED IN RCW 34.05.546

(1) The name and mailing address of the petitioner/plaintiff; Bill Scheidler, 1515 Lidstrom Place E., Port Orchard WA 98366

(2) The name and mailing address of the petitioner's attorney, if any;N/A. Petitioner is Pro Se.

(3) The name and mailing address of the agency whose action is at issue;WA State Board of Tax Appeals, P.O. Box 40915 Olympia WA 98504-0915

(4) Identification of the agency action at issue, together with a duplicate copy, summary, or brief description of the agency action;

The Board of Tax Appeals ruling of September 6, 2012. Exhibit A28. Copy

attached for convenience.

(5) Identification of persons who were parties in any adjudicative proceedings that led to the agency action; Defendants/respondents

James Avery, individually and as Kitsap County Assessor

Alan Miles, individually and as Kitsap County Deputy Prosecutor

(6) Facts to demonstrate that the petitioner is entitled to obtain judicial review;RCW 34.05.530 (The record before the BoTA is incorporated by reference)

I STANDING.AA person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning of this section only when all three of the following conditions are present:(1) The agency action has prejudiced or is likely to prejudice that person;(2) That person's asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.

BScheidler has been deprived of a constitutional right and subjected to violations of law and has a right to sue.


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I, William Scheidler, declare under penalty of perjury that I have been denied WA

State Constitutional rights, Article 7, Sections 10, and WA State Constitution

Article 1, Section 10, by defendants’ color of law violations, procedural and

substantive due process violations and violations of Law. The assessor uses an

unlawful calculation and arrives at an unlawful determination of “disposable

income”. The comparison table found in §G below shows the difference between

the Assessors method and the controlling statutory method, which I used, in

calculating ‘disposable’ income.

II Scheidler’s Declaration of Facts in support of his Standing under RCW 34.05.530 and or “in the altrnative” Standing under RCW 34.05.535 and/or in an action under 42 U.S.C. 1981, 1983, 1985 all other rights reserved.

FACTSNovember 11, 2008, Scheidler filed a complaint for ‘declaratory and injunctive relief’ (Kitsap Superior Court [KSC] Docket 08-2-02882-0) against Kitsap County Assessor, James Avery.

Scheidler alleged the “instructions” the county was providing to applicants did not fulfil the statute it portrayed – RCW 84.36.383(5). (Scheidler offers as proof the CP and RP for cause 08-2-02882-0)

Counsel for Assessor, Alan Miles, moved for dismissal, by misrepresenting Scheidler’s causes of action. Misrepresentation is a violation of RCW 2.48.210 and RPC 3.3.

Miles argued Scheidler’s intent was to by-pass the “application” process, failed to exhaust administrative remedies and was challenging the constitutionality of RCW 84.36.383(5) failing to join the State.

December 16, 2008 Scheidler responded with an objection and brief in opposition to motion to dismiss rebuking the version of Miles and reiterating claim.

January 2, 2009, Judge Haberly dismisses Scheidler’s complaint upon the grounds presented by Miles and awards cost to county.

January 9, 2009, Scheidler files motion for reconsideration.

January 16, 2009, Judge Haberly strikes motion, not properly noted. Not heard.


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NOTE: Scheidler was Pro Se. Counsel for Assessor, Alan Miles, was duty bound under RCW 2.48.210 and RPC 3.3 to alert Scheidler of a material fact or law that would have a bearing on this “reconsideration motion and its proper docketing.” Miles remained quiet and he as violated his public duty.

Scheidler appeals to Court of Appeals but dismissal of action affirmed – failed to exhaust administrative remedies. Unpublished Opinion.

June 6, 2010, Scheidler files 4 applications for the Article 7, Section 10 right upon the forms provided by Kitsap County – years 2007, 2008, 2009, 2010. Ex A3-1 to A3-8.

Scheidler signs all his applications under duress and provides a letter of explanation – the application instructions do not fulfil RCW 84.36.383(5) and therefore the criteria the application collects is false. EX A4-1, 2.

County denies Scheidler’s applications for years 2007, 2008, 2009, and approves Scheidler for Section 7, Article 10; year 2010.

September 25, 2010, Scheidler appeals to the local Board of Equalization [BOE] citing fraud --- the applications misstate the law and the results obtained there from are wrong for all years for which Scheidler applied. See RCW 84.36.385(5)

The Board of Equalization upholds the Assessors decisions claiming Scheidler did not present any credible evidence to the contrary.

Scheidler appeals the Board of Equalization to the WA State Board of Tax Appeals [BoTA] per RCW 84.08.130

Record on review in BoTA #11-507-510 incorporated by reference.

Scheidler seeks an accommodation per GR 33. Disability accommodation. Denied in part – appointment of counsel denied.

Scheidler reiterates to the BoTA his earlier claims presented to Kitsap Superior Court (cause 08-2-02882-0) and to BOE; again argues fraud and violations of law.

Scheidler requests declaratory relief and a Jury Trial, BoTA denies request – cites lack of jurisdiction.

Counsel for Kitsap County moves to strike allegations – motion not heard

Counsel for Kitsap County moves the BoTA to dismiss remaining appeal for lack of jurisdiction.


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Scheidler, in the interim, files grievance with WSBA against Alan Miles for his inconsistent legal arguments --- e.g., First, in Superior Court [action 08-2-02882-0] obtain dismissal based in an adequate Admin remedy, then argues that the Admin remedy is not within the jurisdiction of the BoTA. WA Bar dismissed grievance.

The BoTA grants County’s summary motion to dismiss Scheidler’s appeal for lack of jurisdiction. Ruling attached.

Scheidler moves Superior Court, in the case 08-2-02882-0, for CR 60 relief from judgement and or CR 62 stay in proceedings pending CR 60 review, citing ‘fraud upon the court’ --- there was no administrative remedy as argued by Miles in the earlier proceeding for declaratory relief – it is self-evident by violations of law that were made to occur and the BoTA ruling that it lacked jurisdiction. These are self-evident facts of ‘fraud upon the court.’ An unnecessary delay cause entirely by Miles and is a violation of Article 1, Section 10 and Miles statutory oath RCW 2.48.210 “shall never delay any mans cause…”

Miles answers with motion to strike “impertinent language” to deny CR 60 and CR 62, and for sanctions in Superior Court. [cause 08-2-02882-0]

August 30, 2012, Scheidler replies, his pleadings are protected under Art 1. Section 5 and Miles motion to strike and for sanctions cannot, by law, be granted. See also RCW 4.24.510-525 anti-SLAAP [cause 08-2-02882-0]

August 31, 2012, Judge Haberly, in cause 08-2-02882-0, denies, from the bench, CR 60 and CR 62 motions and grants motion to strike and for sanctions and costs of $3560 to county. Orders to be presented September 14, 2012 for signing.

September 5, Scheidler filed, [in cause 08-2-02882-0] motion for reconsideration with two addendums filed on September 6 and 7

September 14, in cause 08-2-02882-0, Judge Haberly is presented orders and enters those orders with the court. Order is not signed by Judge Haberly but stamped with Judge Haberly’s name. The Order states, (EX A30)

1. All allegations of criminal and/or civil wrongdoing and/or professional misconduct contained in the Plaintiff’s motion for relief from judgment and in Plaintiff’s motion for a stay of proceedings to enforce judgment, including all exhibits thereto, are stricken.

2. The Plaintiff’s motion for relief from judgment is denied with prejudice3. The Plaintiff’s motion for stay of proceedings to enforce judgment is denied

with prejudice4. The Plaintiff’s is sanctioned and order to pay the Defendant $3,560.00,

consisting of a reasonable attorney fee of 3,500.00 and costs of $60.00


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September 21, in cause 08-2-02882-0, Motion for reconsideration… denied/stricken by court.

III EXHIBITS THAT MAKE UP THE FACTUAL RECORD BEFORE THE BOARD OF TAX APPEALS.

This list of exhibits is Scheidler’s offer of proof that supports the allegation that the Assessor and Alan Miles are misstating the controlling law and miscalculting disposable income. See RCW 34.05.546(6)

Exhibit A1 Are emails with the Board of Tax Appeals that speak for itself.

Exhibit A2 are copies of petitioners Board of Equalization petitions and

speak for itself. Copies attached for convenienceExhibit A3 are copies of petitioners Disability Applications for the years 2007-

2010 which petitioner Scheidler was forced to sign “under duress.” These

petitions, on their face, are evidence of a crime. Copies attached for convenience.

Exhibit A4 is a copy of Scheidler’s letter of duress. Copies attached for convenience.

Exhibit A5 are legislative bills, SSB 5256, SB 5204, [Also SB 5034 C 270 L

04, effective June 10, 2004, and is included by reference], in which the

legislature affirms their meaning of the language embodied in RCW

84.36.383 (5) with respect to the definition of disposable income. The

legislature clearly states in these bills that the conditions that apply to

categories [a-I] of sub section (5) are as follows.

“Disposable income is defined as the sum of federally defined adjusted gross income and the following, if not already included:”

The Assessor departs from this simple instruction by requiring applicants to

add categories [a-i] in various and irrational ways unrelated to the true

statutory scheme. See Exhibits A6-A12.

Exhibit A6 is the Kitsap County Application for the year 2008. Kitsap

County’s application, on its face, is unlawful. The instructions found on


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page three, first paragraph, misquote the statutory language and changes

the statutes meaning. It says….

If you file a tax return with the IRS and your return included any deductions for the following items or if any of these items were not included in your adjusted gross income, they must be reported on your application for purposes of this exemption program:

Capital Gains, (cannot offset with losses.)

An applicant cannot arrive at a lawful result by following unlawful instructions.Copy of pertinent page attached for convenience.

Exhibit A7 the Kitsap County Application for the years 2008- 2011, on their

face, are unlawful. The application at §B, C, D, again misquotes the

statutory language. The pertinent language is found on page 3, and states,

“§B. Capital Gains not already included in Line A. Do not use losses to offset gains. Do not include the gain from the sale of your principal residence if you used the gain to purchase a replacement principal residence within the same year.”

“§C. Deductions for Losses (including capital losses). If your adjusted gross income includes deductions for losses, those amounts must be added back. Include deductions for losses from business ventures and rentals as well as capital losses.”

“§D. Deductions for Depreciation. If your adjusted gross income includes deductions for depreciation, those amounts must be added back. If you deducted depreciation as a business and/or rental expense that resulted in a loss, recalculate the net income/loss without the deduction for depreciation expense. If there is still a net loss enter -0- here, if there is net income enter the net income here.”

****The County’s application combines two categories, a and b, into one. Such a

tactic renders the intent of using ‘categories’ irrelevant. An applicant cannot

arrive at a lawful result by following unlawful instructions.***

Exhibit A8 is a document obtained from WA State Representative Jan Angel,

which is a Dept of Revenue handout to County Assessors. Clearly the

DOR has misinformed County Assessors by misquoting the language of


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RCW 84.36.383(5). And by implication mishandles subcategories a-i of this

statute.” Paragraph 5 of that handout misquotes RCW 84.36.383(5). It

says,

RCW 84.36.383(5) defines “disposable income” as adjusted gross income as defined in the internal revenue code plus all of the following items to the extent they were include in or excluded from adjusted gross income.

The meaning conveyed by this paragraph could be expressed simply as “plus

the following”… eliminating any conditions whatsoever imposed upon

subcategories a-i. In other words, the Dept. of Revenue has rendered the

‘conditions’ with respect to categories a-i of RCW 84.36.383(5) irrelevant.

Exhibit A9 is an email exchange between Scheidler and Peggy Davis of the

DOR. The email exchange speaks for itself. In reading the email

exchange, Peggy Davis cannot use consistent language to explain both

the controlling law and the Assessor’s calculation scheme it purports to

effect.

When referring to RCW 84.36.383(5) Peggy Davis uses this phrase with

respect to categories ‘a-i’ of this statute, …. “plus the following to the extent not included in IRS adjusted gross income.”

Peggy Davis, when explaining the Assessor’s instructions uses this phrase in

referring to categories ‘a-i’ …. “to the extent the following items are included in IRS Adjusted Gross Income.”

These two explanations -- RCW 84.36.383(5) v the Assessor’s calculation

scheme --are at odds … they say opposite things. The email testimony of

Peggy Davis confirms the Assessor is misapplying the law.

Exhibit A10 is an email exchange between Scheidler and Harold Smith of the

DOR. The email exchange speaks for itself. The pertinent point of this

evidence is Mr. Smith refused to answer any questions that would need to

be answered so as to understand the “conditional test” required by RCW

84.36.383(5). When asked if IRS line-items 6-22 are included in the


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calculation of line 37 (AGI), Mr. Smith REFUSED to answer. Mr. Smith’s

conduct is consistent with ‘fraud.’

Exhibit A11 is an email exchange between Scheidler and the Kitsap County

Assessor, James Avery. The email exchange speaks for itself. The portion

of significance is that Avery argues that a persons “disposable income”

must be increased by an equivalent amount for any “loss” that can be

found in a person’s Tax Return. In other words, the ‘greater is a person’s

financial losses the higher the person’s disposable income. This is an

absurd notion that the more losses a person suffers the greater is his ability

to pay property tax.

Exhibit A12 are the Assessor’s exhibits D, included by reference per RCW

34.05.452(4)], which calculate Scheidler’s disposable income for each of

the years under appeal, including year 2010. Scheidler contests the

Assessor’s calculation for tax year 2010 for the same reasons as the other

years – the assessor’s fraud upon citizens.

The Assessor’s calculations are all wrong because the Assessor has not

applied the controlling law as written. The Assessor is using his own

version of the program and not the programs as passed by the legislature.

Line items ‘B, C, and D’ of Assessor’s Exhibits D reverse the statutory

condition by stating that ‘if your adjusted gross income includes deductions

for loss/depreciation…’ These line- items are found on Schedule’s D and

C, and on IRS Form 1040, lines 12-14. The Statute states differently in that

the items referenced by lines B, C, and D of Assessor’s exhibit D are of

concern only ‘if they have not already been included’ in adjusted gross

income. A taxpayer has already included those items, at least to some

extent (see IRS Schedule C and D and IRS Form 1040, lines 12-14), in

accordance with the IRS instructions for the calculation of adjusted gross

income. (Note: IRS Schedule D losses over $3000 are not included in the

calculation of adjusted gross income and must be included when

determining disposable income so as to eliminate ‘carryovers’ and in


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keeping with the legislatures intent that an application is a function of

income for each year)

Exhibit A13 are decisions of the WA Board of Tax Appeals [BoTA]– Dockets

55692, 56336, and 55067. [These are included by reference per RCW

34.05.452(4)]. The decisions of the BoTA are all half-truths meant to

deceive and are a violation of due process.2 The Board’s Public duty is to

prevent a wrong, not engage in conduct to foster or conceal that wrong.

Exhibit A14, included by reference, [per RCW 34.05.452(4)] Board of Tax

Appeal file #BE –592-97. The Board’s decision clearly places great weight

on a “person’s assets” which have nothing whatsoever to do with the

computation of ‘disposable income’. The Board’s emphasis on “Assets” is

unjustified by any statutory language or rule of statutory construction.

Article 7, Section 10 of the WA State Constitution is clear… the Legislature

may “limiting of the relief to those property owners below a specific level of income”.The Board of TAX Appeals has defined for itself that a person’s “assets” or

“savings” are factors to be considered for qualification to the RCW

84.36.379-389 program.

Furthermore the Board has determined for itself what a person’s ‘assets

are’ without any rationale to actual reality --- are these purported assets

noted by the Board “gross assets, net assets, borrowings…). The Board

of TAX Appeals has violated well established rules of statutory construction

so as to invent their own criteria for qualification to the Retired/disabled

program. The Board has violated their public duty and should be

sanctioned.

Exhibit A1, Email communication with Steve Saynisch. The email

communication speaks for itself and documents the objection to the

2 IKEDA v. CURTIS 43 Wn.2d. 449, 450 (1953) “Fraudulent misrepresentations may be effected by half-truths calculated to deceive; and a representation literally true is actionable if used to create an impression substantially false.


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Board’s ex parte communication with ‘fact witnesses’, Lori McPhee, who is

to be called at trial.

Exhibit A15, included by reference [per RCW 34.05.452(4)] are Scheidler’s

declaratory and injunctive lawsuit filed against the County, dismissed as

not ripe, and the ensuing appeal from dismissal [affirmed]. Noted as

Superior Court # 08 2 02882 0; and Court of Appeals II #387816

Exhibit A16, Attached hereto Ellerby’s letter to Kitsap County noted as

Plaintiff’s exhibit E-33 and E-34; and Ellerby’s notice of Withdrawal citing

‘at the request of the Kitsap County Prosecutor’. These documents show

Kitsap County’s long history in “tactical warfare” by using the “legal

process” to thwart all efforts to expose Kitsap’s fraud.

Exhibit A17, Complaints made to the Attorney General alleging Dept of

Revenue misconduct. These documents attest to Scheidler’s long and

arduous quest to right-the- wrong of Kitsap. Of particular note is the AG’s

vague and contradictory statements in justifying the “various WAC and

Agency conduct” versus the exact language of the law – RCW

84.36.383(5). The AG does not address Scheidler’s argument but only

recites the position of the Dept of Revenue.

Exhibit A18, Email communication between Scheidler and Brett Durbin and

Cam Comfort of the WA State Attorney General’s office. Of particular note

are the various “editions” of the statutory language of RCW 84.36.383(5)…

and the various ‘editions’ of ‘capital gains … and the various statements

regarding losses. All of these “variations” are on their face, violations of

law. NO person has a right to misrepresent the true language of law or

“editorialize” the language of laws to satisfy some other motive. These

email communications implicate all the agencies under the States

Executive Officer .. the Governor. The motives of the Governor are readily

apparent… keep taxes low for high income wage earners at the expense of

the retired/disabled who must “live off” their retirement savings and are too

old, weak or poor to mount a legal challenge.


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EXHIBIT A19, email exchange between Scheidler and Kitsap Prosecuting

Attorney Russell Hauge alleging misconduct by Alan Miles.

EXHIBIT A20 King County’s applications for the RCW 84.36.379-389

exemption program. These exhibits validate the substantive differences in

the administration of the exemption program among assessors. Most

notably King County’s request for documentation as “year end statements,

or an entire copy of an IRS return”. This notable difference raises

constitutional privacy violations. Kitsap County “mandates” applicant’s

submit their IRS tax return. This notable difference between King and

Kitsap also implies “other” measures of “disposable income” are possible.

And therefore is the reason the legislature wrote RCW 84.36.383(5) as

they did… to insure all “methods” of calculating ‘disposable income’ are

‘structurally’ similar regardless of whether or not an applicant submits “year

end statements” or their IRS tax return.

EXHIBIT A21 CR 26 – CR 37 Discovery materials – when and if the Board

permits discovery

EXHIBIT A22 CR 26 – CR 37 Discovery materials – when and if the Board

permits discovery

EXHIBIT A23, Notice of Appeal. Included by reference [per RCW

34.05.452(4)].

EXHIBIT A24-1 to 36 TAX Returns for Docket 11-507 to 11-510

EXHIBIT A25, Court filing: Assessor’s opposition to Scheidler’s request for

declaratory and injunctive relief. This document is offered to show how the

assessor’s defense counsel, Alan Miles, lies to the court in his portrayal of

Scheidler’s case. The reality of the instant case and the predicament in the

“subject matter” is proof of Miles’ deception in Superior Court. This is

evidence of ‘fraud upon the court’ and further evidence of Miles compelling

documentation that they are actively engaged in hiding the assessors

fraud. This conduct by Alan Miles/Jim Avery is proof of their planning and

execution of that plan to defraud and hide the fraud.


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EXHIBIT A26, Textbook: “Writing for Career-Education Students”, Andrew W. Hart, James A Reinking. “Chapter 4: Classification.

Classification is a useful way to explain a large, complex, or hard-to-grasp

topic.” Page 56. “Avoid Overlapping Categories… in other words, each

category must be a separate grouping that does not extend into the

“territory” of another grouping.” Page 59….

Clearly Kitsap County’s applications, on their face, commingle categories [a-i]

of RCW 84.36.383(5) and in this way destroy each categories unique

“territory” and the legislatures intended purpose in using categories to

explain a hard-to-grasp topic.

EXHIBIT A27, A letter from Kitsap’s counsel that speaks for itself and shows

how the Assessor and his counsel utilize any means in trying to prevent

appellant’s rightful appeal. This letter demands appellant dismisses his

rightful appeal under unjustified threats by Alan Miles. The conduct of the

Assessor and his counsel ‘seeks to violate Scheidler’s lawfully instituted

claims. Alan Miles is in violation of his Oath, RCW 2.48.210, and rules of

professional conduct, RPC 3.1 and 8.4 (citation omitted). He must be

reported to the appropriate authorities.

IV Exhibits – Other – offers of proof

EXHIBIT A28, copy of BoTA order of summary judgment dismissal.

ATTACHEDEXHIBIT A29, copy of Superior Court Order of September 14, 2012. The

Order speaks for itself and is in substantive conflict with the express

language of CR 59 and CR 81 Attached for convenienceEXHIBIT A30, copy of pertinent parts of CR 59 and CR 81. Attached for

convenienceEXHIBIT A31, copy of Superior Court Docket Summary 08-2-02882-0.


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EXHIBIT A32, copy of emails between Scheidler and SC. These emails

speak for itself and show how the SC addresses procedural questions. The

SC claims to clarify a procedural issues would be giving “legal advice.”

EXHIBIT A33, copy of Scheidler ‘Motion for Reconsideration’ casue 08-2-

02882-0, filed September 5, 2012. Stricken by the Court.

V Points of Law Presented to Board of Tax Appeals.The following points of law represent well-established legal precedent

at the time of the events subject to this appeal and resulting in the allegations of this complaint.3

Constitutional Equal Protections…residents who are otherwise qualified who are denied the Constitutional right granted by WA Const Art. 7 Sec. 10 – is a violate the Fourteenth Amendment's command that no State shall deny persons equal protection of the laws.

RCW 84.36.379-389, is the legislature’s enactment of the Article 7, Section 10 RETIRED PERSONS PROPERTY TAX EXEMPTION. Notwithstanding the provisions of Article 7, section 1 (Amendment 14) and Article 7, section 2 (Amendment 17), the following tax exemption shall be allowed as to real property:The legislature shall have the power, by appropriate legislation, to grant to retired property owners relief from the property tax on the real property occupied as a residence by those owners. The legislature may place such restrictions and conditions upon the granting of such relief as it shall deem proper. Such restrictions and conditions may include, but are not limited to, the limiting of the relief to those property owners below a specific level of income and those fulfilling certain minimum residential requirements.

The WA State Supreme Court has held when construing a statute that…

1. Statutes - Construction - Purpose - In General. A statute should be interpreted to further, not frustrate, its intended purpose. Bostain v. Food Express, Inc. 159 Wn. 2d. 700 701 (2007).

2. Statutes - Construction - Administrative Construction - Deference to Agency - Conflict With Statutory Mandate. Deference to an agency's interpretation of a statute is inappropriate if the interpretation conflicts with a statutory mandate. Id., Bostain v. Food Express, Inc. 159 Wn. 2d. 700 701 (2007)

3 Harlow itself said as much: "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.'' Id., at 818-819, 102 S.Ct., at 2738; see also Butz, 438 U.S., at 506, 98 S.Ct., at 2911 (" [I]t is not unfair to hold liable the official who knows or should know he is acting outside the law . . . . ''). 523 U.S. 574 - Crawford-El v. Britton


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3. [Legislative Intent - In General. The primary goal of statutory construction is to carry out legislative intent.

4. Unambiguous Language - In General. If a statute is plain and unambiguous, its meaning must be derived primarily from the language itself.

5. Meaning of Words - Ordinary Meaning - Manifest Contrary Intent. Statutory words are not given their ordinary meaning when a contrary intent is manifest.

6. Ambiguity - What Constitutes - In General. When statutory language is susceptible to more than one reasonable interpretation, it is ambiguous.

7. Superfluous Provisions. Statutes must not be construed in a manner that renders any portion thereof meaningless or superfluous.]4

8. Unambiguous Language - In General. An unambiguous statute is applied as written; it is presumed that the Legislature means exactly what it says. 5

9. Purpose - Considered as a Whole. A statute is construed to carry out its manifest objective. In achieving that objective, the statute is construed as a whole, with effect given to all the language used; all the provisions of the statute must be considered in relation to each other and harmonized, if possible, to ensure the proper construction of each provision.6

10.Rational Interpretation – Avoiding Absurdity. A statute should be given a reasonable construction that avoids absurd or strained consequences. 7

11.Construction - Unambiguous Statute - In General. An unambiguous statute is not subject to construction, and the courts may not add language to a clear statute even if it believes that the legislature intended some additional provisions.

12. Taxation - Statutory Provisions - Construction. Ambiguous taxing statutes should be construed in favor of the taxpayer. 8

13. [3] Taxation - Statutes - Construction - Tax Enactments - Ambiguities - Resolution in Favor of Taxpayer. An ambiguity in a tax statute is construed most strongly against the government and in favor of the taxpayer.9

14.Kelly v. Wyman, 294 F.Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public's tax revenues supplied the requisite "overwhelming consideration." Goldberg v. Kelly 397 U.S. 254 10

4 [Footnotes 1-5] STATE v. CARSON 128 Wn.2d 805 (1996)5 [6] KENT v. BEIGH 145 Wn.2d 33 (Oct. 2001)6 [7] SEATTLE v. FONTANILLA 128 Wn.2d 492, (1996)7 [8]JONES v. STEBBINS 122 Wn.2d 471, P.2d 1009, (1993)8 [9-10] VITA FOOD PRODUCTS v. STATE 91 Wn.2d 132, 587 P.2d 535 (1978)9 Estate of Hemphill v. Dep't of Revenue. 153 Wn.2d 544 (2007) 10 Goldberg at 262 Such benefits are a matter of statutory entitlement for persons qualified to receive them.[8] Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are "a `privilege' and not a `right.' " Shapiro v. Thompson, 394 U. S. 618, 627 n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U. S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U. S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U. S. 551 (1956).[9] The extent to which procedural due process 263*263 must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss," Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication.


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15.Because RCW 84.36.379-389 is a contract between Senior/Disable citizens and the state, the Supreme Court has held in 7 Wn.2d 20, HARRY BYRNE, v. BELLINGHAM CONSOLIDATED SCHOOL DISTRICT [4] SAME - CONSTRUCTION - LANGUAGE OF INSTRUMENT - AMBIGUITY - CONSTRUCTION AGAINST PARTY PREPARING CONTRACT. Ambiguities in a written instrument are to be resolved against the party who prepared it.

16.Article 1, Section 1, states that, “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” That being the case, statutory ambiguities must be resolved in favor of the people and against governments. The government must not govern from the shadows.

17.To determine if a regulation results in a denial of due process, the court engages in a balancing test. We ask: "(1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner."11

18. [6] STATUTES - VALIDITY - CHALLENGE - FACIAL CHALLENGE - SINGLE VALID APPLICATION - EFFECT. A STATUTE IS NOT FACIALLY UNCONSTITUTIONAL IF THERE IS AT LEAST ONE WAY THE STATUTE CAN BE APPLIED WITHOUT VIOLATING A CONSTITUTIONAL GUARANTY OR PRINCIPLE. STATE V. HUGHES 154 WN.2D 118, 119 APR. 2005

State law also requires all attorneys take a statutory oath, which states explicitly…

RCW 2.48.210 OATH ON ADMISSION.Every person before being admitted to practice law in this state shall take and subscribe the following oath:

I do solemnly swear:I am a citizen of the United States and owe my allegiance thereto;I will support the Constitution of the United States and the Constitution of the state of Washington;I will maintain the respect due to courts of justice and judicial officers;I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land, unless it be in defense of a person charged with a public offense; I will employ for the purpose of maintaining

Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961), "consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." See also Hannah v. Larche, 363 U. S. 420, 440, 442 (1960). Goldberg v. Kelly 397 U.S. 25411 MISSION SPRINGS v. CITY OF SPOKANE Apr. 1998 134 Wn.2d 947, 954, 988 P.2d 250


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the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge and approval;I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice. So help me God.

VI Argument

A RCW 84.36.383(5), the controlling law for determining ‘disposable income,’ a required element for the determination of rights, is clear on its face and

therefore is not ambiguous.A person should do exactly what the plain reading of this statute says to do.

The statute as written presents no constitutional issues and treats all

applicants fairly without discriminating against anyone, nor penalizes

anyone for how they handle their savings.

All the language of RCW 84.36.379-389 is wonderfully harmonious – none of

the words used are ambiguous when taken as a whole. There are NO

other interpretations that preserves all the intended use of the words of

RCW 84.36.379-389 and preserves all the points of law that apply to

statutory construction.

Therefore the ‘home-grown’ renditions of RCW 84.36.383(5) that the

Assessor forces upon applicants is unlawful as it violates the WA State

Constitution Article 7 Section 10, violates RCW 84.36.381, violates criminal

law statutes, violates WA State and U.S. Constitutional guarantees,

violates the rules of construction and violates common writing conventions!

B In keeping with the principle that no words of a statute are to be rendered irrelevant or superfluous...

These words of RCW 84.36.379-389 must be given sensible meaning or the meaning prescribed by the legislature.


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"not included"

The language used by the assessor, in judging items (a-i) of .383(5) says 'plus the following to the extent that they were included. The calculation the Assessor employs in determining disposable income relies upon his rewriting the statute in which he substitutes the terms “not included” with “included”.

"deducted from adjusted gross income"

The phrase used by the Assessor, 'used to reduce adjusted gross income,’ or ‘deducted from gross income’ changes how one evaluates categories a-i. Even if the denoted phrase is ambiguous and can mean, "used to reduce adjusted gross income" rather than the precise and explicit statutory language "deducted from adjusted gross income" it is the latter meaning that must be used. Ambiguities in Laws as well as contracts must be resolved against the drafter and in favor of the citizen/enactment. Id., 7 Wn.2d 20, HARRY BYRNE, v. BELLINGHAM CONSOLIDATED SCHOOL DISTRICT; Art 1 § Sec 1. ; Id., Bostain

"income"

as opposed to savings, borrowings, inheritance... In other words, why did the legislature state the best measure of a person’s ability to pay as IRS adjusted gross income? The assessor’s scheme is based upon his ‘version” of an ability to pay as some perversion of IRS AGI so as to capture a combination of savings, net worth, gross income, losses... A retired persons ‘savings’ have already been addressed in prior years. Furthermore, ‘savings’ of the retired or retired due to disability may be all the funds a person has to sustain their future life! [EMPHASIS] The Assessor’s scheme ‘digs’ into savings again-and-again to increase ‘present year’ income. Furthermore, the Assessor’s home-grown scheme relies upon the absurd notion that “financial losses” are income and count towards a persons ability to pay.

"Adjusted Gross Income [AGI]"

as opposed to Gross Income. In other words, why did the legislature pick AGI (i.e.. line 37 of IRS Form 1040) if they intend that the Assessor deconstructs AGI by backing out the very line items that went into calculating line 37? Why didn’t the legislature, as a matter of common sense, begin at IRS line 6 and then add items a-i as the assessor believes? The Assessors home-grown scheme relies upon these words that replace the true language of RCW 84.36.383(5)…. The assessor says that the categories a-i must be included if “they are included in or excluded from adjusted gross income”. This instruction simple means “plus the following” and, on its face, is a false statement of the law in both the words used and meaning rendered.


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"per IRS coded"

as opposed to the Assessor’s scheme, as opposed to the WACs, which are the Assessor and DOR's attempt to redefine what IRS Code means. Said another way, the categories a-i of RCW 84.36.383(5) must be treated in the same way as IRS code.

"unless the context clearly indicates a different meaning"

Clearly the legislature states in RCW 84.36.383(5) that it is IRS code which governs the meaning of the terms used in the statutory language. There is NO language to suggest the Assessor has any authority to ‘redefine’ any provision of RCW 84.36.381, which is the statute he is to administer. It is a strained concept to accept the argument that the legislature would give all 39 county assessors authority to “interpret” the law.

“disposable income”

as opposed to fictional income such as when the Assessor calls “losses” income and adds ‘losses’ as a positive amounts to increase income.

"capital gains"

per IRS Code AS OF 1989 or later ... as opposed to "capital gains" per the WAC, or per some version of what constitutes “capitals gains” as the Assessor demands.

"losses"

per IRS Code AS OF 1989 or later... In other words, ‘losses’ are ‘added’ as a ‘loss’ – ie., a negative amount. This is documented by the instructions for IRS form 1040. The Assessor’s scheme doesn’t treat ‘losses’ as the IRS treats losses. Rather the Assessor adds ‘losses’ as a “positive’ amount to increase “income’ by the amount of the loss. This is absurd to think a person’s ability to pay is enhanced by suffering a ‘loss!’

"line 22 of Form 1040 per IRS Code"

states, ADD AMOUNTS IN THE FAR RIGHT COLUMN. Clearly losses are included in the calculation of line 22, and not deducted from line 37. This is to be emphasized. Amounts in the far right column are “included” in the calculation of line 37. None of these line-items have been deducted from line 37. There is NO ambiguity in this fact as the FORM 1040 is its proof!

“Categories [a-i] of RCW 84.36.383(5) ”

“Categories” are used to differentiate unique characteristics. Categories should NOT overlap. See Exhibit A26. The Assessor’s home-grown


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scheme mixes and matches these categories to arrive at his intended outcome.

" best measure of a retired person's ability to pay taxes is that person's disposable income as defined in RCW 84.36.383. " The best measure implies it may not be the only measure that a person can utilize to determine their “disposable income”. A person does not have to provide their IRS TAX return under ANY statutory authority... ONLY that a person must submit evidence to support their income calculation. Whatever documentation is supplied it must be treated IAW items a-i of RCW 84.36.383(5). Said another way.... RCW 84.36.383(5) is intended to duplicate and equivalate the income calculation regardless of what documentation is provided to support the applicant's disposable income calculation.

C WA Constitution Article 1,Section 10 and RCW 2.48.210 are explicitly clear that WA State Citizens are to be free from “unnecessary delay” and an attorney shall never ‘delay any mans cause’ in seeking justice.

Scheidler presented to the Superior Court, Nov. 2008, in a declaratory

request concerning the very issue being presented to this court today – is the

Assessor’s application and instructions that purport to carry out RCW

84.36.383(5) a violation of law? The answer to this question has yet to be

addressed by a court despite the laws to do so… specifically RCW 4.40.050.

The four-plus years of the Assessor hiding under the manipulation of court

rules is self-evident of an unnecessary delay and a fraud upon the court.

D WAIVER, ESTOPPEL- The Wrongdoer should not benefit from his wrongful acts.

Scheidler’s case implicates wrongdoing by members of county and state

government – Alan Miles, James Avery, M. Karlynn Haberly, and Kay Slonim,

who are delaying his right to justice and inflicting damage by violations of law

under WA Const. Art. 1, Sec. 10 and RCW 2.48.210 etc.

Scheidler was ORDERED by Judge Haberly upon the argument of Alan Miles

and James Avery to “break the law” by being forced to sign a document,

under oath, that misstated the law and the truth, which deprived him

‘unnecessarily’ of a constitutional right. And then by Judge Haberly’s


http://apps.leg.wa.gov/rcw/default.aspx?cite=84.36.383

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ORDER was forced to engage in senseless Administrative process which

Alan Miles argued was not the appropriate pathway.

Miles writes, “The Board lacks the jurisdiction to grant declaratory relief or damages,” Respondents opposition to declaratory relief Jun 4, 2012, Page 1 at 23. “The Board’s only jurisdiction and authority in these appeals is to determine whether or not the Taxpayers were wrongfully denied partial property tax exemption…” Ibid., page 2, at 10. “The Board lacks jurisdiction to grant taxpayers’ requested relief..” Ibid.,, page 2, §III et seq. “The taxpayers’ request in this instance is fundamentally at odds with the Board’s statutory jurisdiction”. Ibid.

Miles’ position before the BoTA is exactly opposite to his position before

Judge Haberely in 08-2-02882-0 declaratory action.

“Estoppel - Elements - In General. Equitable estoppel requires an admission, statement, or act inconsistent with a later claim; another party's act in reliance thereon; and injury which would result to the other party if the first party were allowed to contradict or repudiate his admission, statement, or act.” METROPOLITAN PARK DIST. v. STATE 85 Wn.2d 821, 822 539 P.2d 854 (1975)

Scheidler’s case cannot suffer if by the unlawful or unethical conduct of these

government agents.

Scheidler’s constitutional rights should not suffer because of the misconduct of

these government officials.

(7) The petitioner's reasons for believing that relief should be granted;

A. The controlling law at issue is one of first impression in the courts –RCW

84.36.383(5); and is a matter of substantial public importance that involves

constitutional issues, this court must grant judicial review.

“In RCW 4.44.080, the legislature directed courts to determine all questions of law in civil actions, and in RCW 4.44.090, it directed that in a civil jury trial, all questions of fact should be decided by the jury.” STATE v. ABRAMS 163 Wn.2d 277 (2008)

B. The BoTA dismissed Scheidler’s administrative action in a Summary Judgement

-- de novo review of the facts must be granted.


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“1] Judgment - Summary Judgment - Review - Standard of Review. An appellate court engages in a de novo review of a summary judgment, considering all the facts most favorably toward the nonmoving party.” 96 Wn. App. 288, UNION ELEVATOR & WAREHOUSE v. STATE

C. THE BOTA RULING IS A FACIAL VIOLATION OF LAW. EXHIBIT A28.On the face of the ruling itself it is a clear violation of RCW 34.05.461(3)(4). By

law an agencies …

“Initial and final orders shall include a statement of findings and conclusions, and the reasons and basis therefor, on all the material issues of fact, law, or discretion presented on the record, including the remedy or sanction and, if applicable, the action taken on a petition for a stay of effectiveness. Any findings based substantially on credibility of evidence or demeanor of witnesses shall be so identified. Findings set forth in language that is essentially a repetition or paraphrase of the relevant provision of law shall be accompanied by a concise and explicit statement of the underlying evidence of record to support the findings. The order shall also include a statement of the available procedures and time limits for seeking reconsideration or other administrative relief. An initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order.

(4) Findings of fact shall be based exclusively on the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding. Findings shall be based on the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. Findings may be based on such evidence even if it would be inadmissible in a civil trial. However, the presiding officer shall not base a finding exclusively on such inadmissible evidence unless the presiding officer determines that doing so would not unduly abridge the parties' opportunities to confront witnesses and rebut evidence. The basis for this determination shall appear in the order.”

The Board of Tax Appeals ruling simply “declares” its conclusions without

providing any rationale, as required by RCW 34.05.461, in way of what ‘facts’

have been considered, what facts have been disregarded. The BoTA offers

NO mention nor explanation in how the facts noted above are included or

disregarded with respect to the law the agency is charged with enforcing.


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“Arbitrary and Capricious Action - What Constitutes. Arbitrary and capricious action on the part of an administrative agency is willful and unreasoning action, in disregard of facts and circumstances ….any substitution of memorandum opinions for findings of fact and conclusions of law should be discouraged.” NO. PAC. TRANSP. CO. v. U. & T. COMM. 69 Wn.2d 472, 481 (1966)

An Agency Ruling that is ‘arbitrary and capricious’ is a violation of due

process. See 119 Wn.2d 91, P.2d 746, LUTHERAN DAY CARE v. SNOHOMISH COUNTY May 1992,

“Substantive Due Process – Violation – Denial of Land Use Permit. A local governmental agency's arbitrary and capricious denial of a conditional use permit constitutes a violation of substantive due process.

D. RCW 34.05.534On the theory that a court, any court, cannot enforce or affirm any decision that

will force violations of law, Scheidler’s case must be heard because he was forced

to file an “illegal application” and as such the violations of the laws noted in §G

were made to occur.

Such a holding is stated in STATE v. EVANS 100 Wn. App. 757 766 (2000)“The trial court cannot sit idly by in such instances and become an accomplice to racial discrimination in the courtroom. Rather, it must insure that justice prevails and that the appearance of justice is demonstrated in the trial that is taking place before those in attendance.«27»

Said another way, the “Legal Machinery was made to sit idly by” at the insistence

of Alan Miles. His contradictory arguments are the proof. First, Miles, to defeat a

declaratory cause of action [SC 08-02-02882-0] claiming an adequate and speedy

administrative remedy existed; then second, to defeat an admin pathway arguing

the Administrative body lacked jurisdiction. See §C supra. Clearly Alan Miles has

perverted the legal machinery and has caused violations of “Law” to occur and

caused an unnecessary delay of justice. There is no counter argument to the fact

that Scheidler’s ‘declaratory case’ if decided on the merits, would have eliminated

a long, arduous and senseless administrative process; and clearly would have

prevented violations of law from occurring.


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The Supreme Court has held,

“the distinctive characteristic of a declaratory judgment action is that it determines the rights of parties to a justiciable controversy before a wrong is committed or a loss incurred.” WATSON v. WN. PREFERRED LIFE INS 81 Wn.2d 403, 407 502 P.2d 1016 (1972).

It is self-evident that Alan Miles has violated the law, committed a fraud upon the

court and or the Administrative body, has violated his oath and his duty as an

officer of the court.

For these reasons Exhaustion of administrative remedies should be excused – as

Miles’ argues that no administrative remedy is available despite his previous

claims to Judge Haberely to the contrary. Scheidler should be relieved of any

administrative criteria prerequisite for judicial appeal.

E. THE ASSESSOR’S ADMINISTRATION OF RCW 84.36.381 IS UNLAWFUL.All the preceding is incorporated as if set forth in full.

James Avery has improperly denied Scheidler’s disability exemption, RCW

84.36.379-389, under color of law. The Board of Tax Appeals has failed it its duty,

as required by RCW 34.05.461(3)(4), to address the issues and the facts

presented in the record by Scheidler in his pleadings and submission of Exhibits.

Scheidler’s due process rights have been violated. Id, NO. PAC. TRANSP. CO. v. U. & T. COMM. 69 Wn.2d 472, 481 (1966); Id.,119 Wn.2d 91, P.2d 746, LUTHERAN DAY CARE v. SNOHOMISH COUNTY May 1992

F. Defendants have violated the law, their oath, their codes of conduct- RPC and CJC, and their obligations of office all to the harm of Scheidler.

“As an officer of the court, his duties are both private and public. Where the duties to his client to afford zealous representation conflict with his duties as an officer of the court to further the administration of justice, the private duty must yield to the public duty. He therefore occupies what might be termed a "quasi-judicial office." Langen v Borkowski, 188 Wis. 277, 301, 206 N.W. 181,190, 43 A.L.R. 622 (1925); Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947); CPE 32. FITE v. LEE 11 Wn. App. 21, 29, 521 P.2d 964 Apr. 1974”


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VII Extortion Racketeering Obstruction of Justice

G. James Avery and Alan Miles violated the following laws. See Exhibits A1-A28

RCW 4.24.510-525 … anti SLAAP statute. Miles’ motions to strike pleadings, granted by Haberly, filed in Superior court [08-2-02882-0] violate the anti-SLAAP statutes.

RCW 4.96.010 Tortious conduct of local governmental entities -- Liability for damages.

All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.

RCW 84.36.381 The Senior/disabled person property tax program.

RCW 9A.60.030 Obtaining a signature by deception or duress.(1) A person is guilty of obtaining a signature by deception or duress

if by deception or duress and with intent to defraud or deprive he or she causes another person to sign or execute a written instrument. EXHIBIT 3.

RCW 9A.60.050 False certification.(1) A person is guilty of false certification, if, being an officer

authorized to take a proof or acknowledgment of an instrument which by law may be recorded, he or she knowingly certifies falsely that the execution of such instrument was acknowledged by any party thereto or that the execution thereof was proved.

(2) False certification is a gross misdemeanor.

RCW 9A.80.010 Official misconduct.(1) A public servant is guilty of official misconduct if, with intent to

obtain a benefit or to deprive another person of a lawful right or privilege: (a) He or she intentionally commits an unauthorized act under

color of law; or (b) He or she intentionally refrains from performing a duty

imposed upon him or her by law.


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(2) Official misconduct is a gross misdemeanor.

RCW 9.72.090 Perjury. a) Has Alan Miles and James Avery committed perjury when they claim under oath that Scheidler fails to qualify for the statutory exemption for 2007, 2008, 2009 due to their claimed income calculations? Appellant claims respondent and his counsel income determinations are violations of law – not merely mathematical mistakes. b) Has Alan Miles and James Avery committed perjury when they claim under oath that Scheidler’s disposable income for the years noted in the following table.

INCOMEYEAR

Disposable Income per

statute

Disposable Income per Assessor

Qualified for

exemption per Statute

Qualified for exemption

per Assessor

Amount of TAX Exemption

2006 Docket 11-507 $112,788 $112,457 NO NO NONE2007 Docket 11-508 -$99,199

[$0]$75,190 YES NO

To be calculated based upon the true disposable income.

2008 Docket 11-509 $27,523 $51,495 YES NO

To be calculated based upon the true disposable income.

2009 Docket 11-510 $24,303 $23,539 YES YES

To be re-calculated based upon the true disposable income.

Note: This chart was explained to the BoTA in Scheidler’s response in Opposition to Respondent’s motion for Summary Judgment and Appellant’s Opening Brief.

b) Has Alan Miles and James Avery committed perjury when they state that Scheidler had adequate administrative remedies in cause 08-2-02882-0. c) Has Alan Miles and James Avery, in their response to Appellant’s first discovery request, by saying, “WAC 456-09-510(3) requires Board authorization for propounding requests for admission. The appellant has not obtained such authorization…”

The above claims by respondent and his counsel are false based upon the true language of RCW 84.36.383(5), WAC 456-09-510(3) and the evidence provided. See App Motion to Compel page 4.

Public Duty mandated by RCW 2.48.210 and RCW 84.36.379-389, Has Mr. Avery and Mr. Miles violated their public duty, which is “to employ such means as are consistent with truth and honor”; “to never seek to mislead the judge or jury by any false statement of fact or law”; “to make a


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reasonable effort under the circumstances to prevent a violation of a law he is charged with enforcing and the violation results in injury to a person within the class the law is intended to protect.” BAILEY v. FORKS 108 Wn.2d 262, 737 P.2d 125. Their violation of the laws noted herein is evidence of their public duty violations.

Has the Assessor and Miles inflicted intentional harm? …negligent harm?

Has the Avery, Miles and violated AMENDMENT 1 OF THE U.S. CONST;AMENDMENT 5 OF THE U.S. CONST; AMENDMENT 7 OF THE U.S. CONST; AMENDMENT 14 OF THE U.S. CONST; U.S.C. Title 42 Chapter 126 Subchapter II Part A § 12132; U.S.C. Title 42 Chapter 21 Subchapter I § 1981, 1983, 1985; WA CONST ARTICLE 1, SECTION 1-5, 10, 21, RCW 2.48.210, 4.27, 4.96, 9, 9A, RCW 84.36.381

H. M. Karlynn Haberly and Kay Slonim lost jurisdiction and no longer immune from suit.

M. Karlynn Haberly, KITSAP COUNTY SUPERIOR COURT JUDGE, is

obligated to uphold the US Constitution and the laws of WA state under WA

Const. Art. 4, SECTION 28 OATH OF JUDGES. Judge Haberly and Ms.

Slonim have a pubic duty by the nature of their employment as public officials

and an officer of the court to insure James Avery and Alan Miles are

complying with the law and not violating it to Scheidler’s harm.

M. Karlynn Haberly and Kay Slonim are culpable, by sitting idly by, under

RCW 9A.08.010-020 and 42 U.S.C. 1985, in the denial of Scheidler’s rights

and the crimes committed by Alan Miles and James Avery. Id., STATE v. EVANS 100 Wn. App. 757 766 (2000);

Ms. Slonim’s Summary Judgment order is deficient in legal substance and

is in breach of her statutory duty RCW 34.05.461(3)(4) and a violation of

Scheidler’s due process rights. Id., NO. PAC. TRANSP. CO. v. U. & T. COMM. 69 Wn.2d 472, 481 (1966); LUTHERAN DAY CARE v. SNOHOMISH COUNTY May 1992.


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Any reasonable person would conclude that Haberly and Slonim were

focused in protecting Alan Miles and James Avery, rather than Scheidler. This

is clear evidence of prejudice.

The Supreme Court in STATE EX REL. McFERRAN v. STARR 32 Wn.2d 544 addresses the constitutional mandate that the administration of

justice must be impartial; this Court states,

[2] SAME - CONSTITUTIONAL LAW - RIGHT TO JUSTICE - IMPARTIAL JUDGE. The administration of justice is dependent upon the impartiality, disinterestedness, and fairness of the judge.

[4] CONSTITUTIONAL LAW - DUE PROCESS OF LAW - TRIAL BEFORE BIASED JUDGE. A trial before a biased and prejudiced judge would constitute a denial of due process under the Federal' and state constitutions.

This Court in STATE v. ABRAMS 163 Wn.2d 277 (2008) makes clear the

legal obligations imposed upon all Courts when it stated…

“In RCW 4.44.080, the legislature directed courts to determine all questions of law in civil actions, and in RCW 4.44.090, it directed that in a civil jury trial, all questions of fact should be decided by the jury.”

The Supreme Court in STATE EX REL. CARROLL v. JUNKER 79 Wn.2d 12, 482 P.2d 775 (1971), further states,

“Courts - Judicial Discretion - Application and Abuse - What Constitutes. An exercise of judicial discretion is a composite of, among other things, conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. A decision involving discretion will not be disturbed on review except on a clear showing of its abuse, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.”

“Supreme Court holdings are binding on all lower courts in the state.” 1000 Virginia Ltd. P'ship v. Vertecs Corp. 158 Wn. 2d. 566

On the face of the evidence itself are unexplained causes of why official

documents needed to be signed by Scheidler under duress,

why adequate and speedy administrative remedies were not available,


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why Judge Haberly is protecting Miles by her order of September 14,

2012?

Etc..

These unexplained consequences were put in motion by Alan Miles and

Judge Haberly, late 2008. No facts have been addressed, no discussion of

why Scheidler’s own legal research is defective, no reasoning whatsoever that

can be evaluated in a manner set forth in STATE EX REL. CARROLL v. JUNKER to justify a 4-year senseless administrative process.

(8) A request for relief, specifying the type and extent of relief requested.

VIII RELIEF1) Invalidate and enjoin the Assessor’s practice of using his home-grown scheme in his

implementation of RCW 84.36.381 and in the calculation of “disposable income”.

2) Mandate the Assessor comply with the express and unambiguous language of RCW 84.36.379-389 and conform its qualifying procedures and calculations to the exact language and meaning of RCW 84.36.383(5).

3) Enjoin the Assessor alert all county homeowners they have been provided improper instructions and to invite all homeowners to, retroactively, reapply for the Art.7, Sec.10 exemption as justice demands.

4) Recalculate disposable income for each and every applicant retroactively as justice requires; and

5) Submit the assessor and his counsel and the judge to the proper authorities for their due process violations, unlawful conduct, violations of precedent and rules of professional conduct.

IX DAMAGES:

1. Statutory damages, $10,000 under RCW 4.24.510, against each of defendants Miles, Avery and Haberly.

2. Compensatory Damages against all defendants to be determined at trial3. Nominal Damages against all defendants to be determined at trial4. Costs and expenses under RCW 4.84 to be determined.5. Any other award justice demands

I attest under penalty of perjury that the foregoing is true.


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Dated this October 1, 2012,

__________________________________

William Scheidler, Appellant Pro Se


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