Tuesday, April 22, 2014
In the Supreme Court of Appeals of West Virginia
Docket No 13-1160
Pocahontas County Solid Waste Authority, Plaintiff
Alikakos et als Pocahontas County Civil Action # 07-C-30(P) 13 February 2014
Petitioner's Reply Brief
Plaintiff /Appellee PCSWA opens its belated “Conslolidated (sic) Response” with a disingenuous characterization of the background of this case and of the regulations out of which it arises.
The so-called “Green Box Fee”, in actuality a tax, imposed contrary to the West Virginia Constitution without assessment on residential property, is not, as implied, the sole, nor a necessary, nor a lawful, means to defray the costs of operating a landfill. And the Response is laughably but misleadingly truthful when it says that the so-called “fee” is not mandatory. As Appellant has abundantly documented, PCSWA has no lawful authority to make charges except for services rendered; nor has it lawful authority to foreclose, as they affect to do, uniquely to Pocahontas County owners of residential property, the use of “other lawful manners” of waste disposal and of its own landfill which charges commercial users lawfully by the ton of waste disposed of there.
PCSWA's/Appellee's so-called “Statement of Facts” on its Page 1 is essentially the same incomplete and false representation it has made before, already rebutted in detail in Motions 1, 9, 10, 13, 17, 38, and 43
PCSWA spends pages trying to argue that I am not appealing the summary judgement, when this is plainly false as on page 8 of my Petitioner's brief , I ask for three specific items of relief,
including a finding that I owe the PCSAW nothing, which would reverse the Summary Judgement. The same statement is made in my Statement of Case and Relief Sought, dated 13 February 2014 . . In addition, PCSWA tries to say that I cannot appeal the numerous erroneous denials of my motions in which I showed that the SWA itself and/or its alleged regulations were not according to law, because these erroneous rulings did not finally dispose of the case. However they did severally dispose of respective issues of validity of the regulations under which the case is brought, and each is then proper to be reviewed by this Honorable Court. If these issues, the foundations of the final Order appealed, cannot be reviewed by this Court, then no right to appeal exists in fact.
However this should properly be phrased in the mysterious argot of the Law, if a rule is not lawful, a judgement made under it cannot be lawful, this Court must be the place to finally determine if it IS lawful, and I must trust this Honorable Court's common sense to recognize this, and do substantial justice, as I specified in my statements of Relief Sought.
PCSWA references several Court cases, including City of Princeton v Stamper, City of Huntington v Bacon, and Cooper v.City of Charleston.
All these cases differ from, and are inapplicable to, the instant case, for the following reasons as presented in my Motion 19a
1. Our American Revolution confirmed and established on this shore the ancient Common Law principle that taxes must only be levied with representation, i.e. by representative legislatures. City Councils are elected bodies, with both inherent and enumerated powers to collect monies (taxes by-any-other-name) for the general benefit of their citizens.
But the PCSWA is constituted by law (WV Code§22C-4-3(b)) as a body of appointees, three out of five of whom are appointed by bodies themselves non-representative, therefore the PCSWA cannot be construed as a representative body with any inherent power of general taxation or assessment, but only such specific powers of charging fees for, and proportionate to, services received,
as specified by law ( see WV Code§7-5-22, §22-15-11, §22C-4-11, §22C-4-23, §22C-4-30, and Motion #9) .
Nota Bene that the Law does not say that Solid Waste Authorities may collect money, “...for general benefits enjoyed.”
“It is axiomatic under the American republican form of government that "the representatives of the people must impose the taxes the people are to pay." 1 T. Cooley, The Law of Taxation § 21 at 84 (4th ed. 1924). This fundamental principle of government comes from England and precedes the American Revolution. It was recognized that imposition of taxes was a legislative power, and the sovereign could not levy taxes except as authorized by the representatives of the realm. Id. "No taxation without representation" subsequently became a rallying cry in the American colonies' fight for independence from the British crown, as evidenced by the list of grievances set out in the Declaration of Independence. That historic document condemned the British monarchy "for imposing Taxes on us without our Consent”.
1. The framers of the United States Constitution recognized the fundamental requirement of representative taxation in the organic law of the country when they gave sole authority "to lay and collect taxes" to Congress. U.S. Const. art. I, § 8. Similarly, the West Virginia Constitution vests in the legislature the power to impose taxes. W. Va. Const. art. 10, §§ 1, 5, 9. . It is a fundamental, indeed perhaps the founding principle of our Country, having been the gravamen of he American revolution, that taxes may only be levied by representative assemblies” (Michie’s Jurisprudence)
2. City of Princeton v Stamper has been cited in a case before the PSC (which is not a Court of Law; indeed ALJ McCann specifically stated that he would not rule on the basis of the WV Code in
the case)(Wilkinson v PCSWA), as supporting the power of the Plaintiff PCSWA to impose the charges which are the subject of this action, but this decision is inapplicable and the reasoning which attempts to apply it here, false:
City of Princeton is not relevant to this case for two main reasons, the first being that the City regulation upheld there was enacted by the City Council, an elected, that is, a representative body. Once again, it is a fundamental, indeed perhaps the founding principle of our Country having been the gravamen of the American revolution, that taxes may only be levied by representative assemblies. The SWA is a Board of appointees, in turn appointed largely by administrative rather than elected bodies, and therefore has no general power of taxation for the support of general welfare; and, second:
The Defense (in Wilkinson; in the instant action it is the Plaintiff) quotes the City of Princeton decision, “an ordinance............is a reasonable and valid exercise of the police powers granted to the City..” PCSWA’s MGDR’s are not an ordinance, because the PCSWA has no grant of power to enact Ordinances...and also does not possess the police powers reasonably imputed or granted to a City or to another representative governing body.
3. It is a settled and fundamental principle of our system of government that the powers of government are enumerated, are limited to those enumerated or granted to them by the people through their representative assemblies, and are not plenary.
And the Law is clear as referenced supra that among the SWA’s enumerated powers is not that of general taxation, or any policing, nor establishing Ordinances, but only the power to charge fees for USE of specific services. Nota Bene that the Law does NOT say, “...for general benefits to the entire populace.”
Moreover, if any argument be made to the effect that proper handling of solid waste, which these regulations may be alleged to promote, is a general public good which may properly be paid for generally by the benefiting public, it must be recognized that general public benefits which cannot be
apportioned to specific recipients are financed by taxation, which our American Revolution established must only be levied with representation, or by representative legislatures.(supra)
On the other hand, a relevant case, Darnell et als v. Park Commissioners (124 WV 787, 22SE 2d 542), says,
“An attempted assessment for street improvement, laid on property abutting on the street improved, by a public authority having no power to lay the same, is void, and may be enjoined in a court of equity, regardless of statutory remedies.”
“The question raised as to the power of the Board of Park Commissioners to lay an assessment against the plaintiffs' property is decisive of the case before us. If the park board had no power to lay such assessment, its action in doing so was and is void. "Equity has jurisdiction to entertain a bill by a taxpayer, suing for himself and all others similarly situated, to enjoin the laying of a levy for which there is no legal authority." Vinson v. County Court, 94 W. Va. 591, 119 S.E. 808. So that if we hold the park board was not vested with power to lay the assessment and the same was void, there [***7] can be no doubt of the correctness of the court's action in overruling the general demurrer. We will, therefore, proceed to discuss and decide the vital question presented.”
“As we understand the briefs and arguments, it is conceded that unless expressly conferred, or arising by necessary implication from powers expressly conferred, a municipal corporation, or a corporation such as the Board of Park Commissioners, has no power to assess taxes or impose assessments upon property lying outside the limits of the municipality or other taxing district. The defendant claims that such authority is expressly conferred by statute or necessarily implied therefrom, and the plaintiffs take the opposite position. We think it devolves upon the Board of Park Commissioners to clearly establish their claim for the reason that it is fundamental that "Laws imposing taxes must be construed strictly and most strongly against the state, and all doubts
must be resolved in favor of the taxpayer." [**546] 9 Digest of Virginia and West Virginia Reports, page 428, and cases there cited. Therefore, unless it plainly appears that the statutes creating and defining the powers of the Board of Park Commissioners confer this power, the position of the plaintiffs must be sustained.”
“Taxation without representation is just as unsound today as it was in earlier periods of our history.”
The power to acquire, own and develop property outside of the city is something quite different from the power of exercising a taxing power conferred upon a municipality or park board within the city itself. The Board of Park Commissioners is an elective body, selected by the qualified voters of the park district, which is the City of Huntington. The voters of that city or district have a voice in the selection of officials who will exercise the powers conferred upon the board. In that way they have some power to circumscribe the actions of the board [***13] they have created. No such power exists as to those who own property lying outside of the city, unless it be in a case where the owner of property located outside the city and is a resident of the city, and such a situation would be unusual. It is not necessary to decide, and we do not decide, that the legislature had power to confer upon the Board of Park Commissioners of the City of Huntington, or upon the City of Huntington itself, the right to lay assessments for street improvements on abutting property, specially benefited, lying outside the boundaries of the park district or the city. We only say that such a power, being of a doubtful nature, we cannot assume that the legislature intended to exercise the same in the absence of a clear showing of such intent.”
Nota Bene, the Park Commission was an elected Board, and thus the pretense of power to impose a tax or assessment, on the part of PCSWA, is even less warranted and more egregious than that of the Park Commission in the quoted case. Note further that Darnell refers to an “assessment”, which is the language which the PCSWA uses to refer to its “Green Box Assessment Fee”, appropriately eliminating
the relevance of any controversy about whether the charge imposed by the PCSWA is in fact a “tax” or a “fee”.
Therefore the action, and the regulation on which it is based, are incurably ultra vires with respect to the Plaintiff, and must be dismissed with prejudice
PCSWA's Response refers to a case styled James M.B. Vs Carolyn M , which appears to relate to the argument that no appeal can be granted in this case, which I have already argued against and which would amount to denial of due process.
PCSWA's Response refers to a case styled Strahin v Lantz, which appears to relate to easements ant to have no relevance here.
It is unclear to Defendant/Appellant Leyzorek whether the arguments in Plaintiff's/Appellee's Response on Pages 15 and following are intended to relate solely to Bernier's and Elza's appeals. Without any intent to represent anyone else, and considering that the cases are consolidated by this Court, Leyzorek will comment on some of the points raised on pages 15 and following.
In attempting find inherent power to enforce MGDR's in the PCSWA, PCSWA ignores the fundamental principle of statutory construction, to illustrate which I could burden the record by adducing scores of cases already familiar to this honorable Court, that all portions of statutes must be construed together. The provisions that authorize collections of monies must be modified by those that specify that charges must be proportional to use of service (see Motion #9); the provisions that refer to
enforcement must be modified by the plain mandate to refer to the DEP (see Motion #12); the power to
sue must be limited by the same requirement to refer/defer to the DEP in the matter of MGDR enforcement. Picking pieces of statutes out of context is a regular trick of prosecutors greedy for convictions and unconcerned with upholding their oaths or the Law, but must not be countenanced or glossed over by this honorable Court.
On page 17, PCSWA asserts that the Authority was properly sworn and constitutional as of the date of the filing of the instant action, however no evidence can be shewn that the Authority took any official cognizance or voted any approval of the proceeding on or about that date. Rather, the action is based, as explained in my Motions 5, and 6, on regulations unconstitutionally adopted in 1995 and 2005, and on a vote to “pursue collections” unconstitutionally taken in 2000, before any quorum was sworn..
On Page 18, accordance of PCSWA's MGDR's with the law is falsely asserted. See my Motions #10, # 38 for full explanation.
On Page 20, PCSWA properly quotes WV Code 22c-4-10, including the language, “..any other lawful manner”. The Code is empty of any grant of power to SWA's to define or delimit lawful manners of garbage disposal. Therefore PCSWA's refusal to recognize recycling, free day use, payment of tipping fee at permitted landfill in Pocahontas County or in any other location as legitimate or sufficient means of garbage disposal is extra vires, represents abrogation of rights belonging to all WV citizens, discrimination, and violation of equal protection under the 14th Amendment to the US
Constitution. See also my Motions #14, #37
On Page 21, authority granted to SWA's to promulgate regulations is correctly found in the law, but such power is explicitly to implement the purposes of the Law, to which the regulations that give rise to this action are in actual opposition. See again my Motions #10 and #38.
On Page 23, PCSWA states that “residents of of any given County do not have the discretion of choosing what is and what is not a lawful manner....” In fact, precisely to the contrary, in the total absence of specific prohibition to the People of this right, and in the total absence of any specific grant of power to the SWA to do so, under the Tenth Amendment to the U.S Constitution, the citizens of the County do most definitely have this discretion, which the alleged MGDR's allegedly adopted by the Plaintiff/Appellee Pocahontas County Solid Waste Authority , and the instant action brought thereunder, unlawfully and unenforceably attempt to strip from them.
Wherefore, Defendant/Appellant pro se John Leyzorek respectfully prays that this Honorable Court will vitiate and reverse the Summary Judgement, finding that he owes the PCSWA nothing; Order that the Pocahontas County Solid Waste Authority establish a new set of Mandatory Garbage Disposal Regulations and system for defraying its cost of operations which will not abrogate the rights of Pocahontas County citizens and which will conform with and subserve the mandates of West Virginia Law, specifically the Waste Hierarchy; and if necessary find that the Circuit Court Order as entered on 18 November 2013 wrongfully and erroneously deviates from the Order as given in open Court on 27 March 2013 in the matter of the charging of pre-judgement interest, which that Court correctly found on 27 March could NOT be added to the total sum alleged to be owed.
Respectfully Submitted by John Leyzorek, pro se He respectfully demands as his right recognized in Cottrell v Cottrell, Bush v Hammer, and others, the indulgence and assistance of this honorable Court, wherever his research or his knowledge of procedure may be deficient but he attempts in good faith to make a valid point or to assert a right, or wherever a valid defense or a right exists of which he is ignorant. He reserves the right to edit this filing to correct errors or add supporting material.
(signed) 2133 Edray Road Marlinton WV 24954 3047997191
You've Got to Stand For Something or You will Fall for Anything!!!
Monday, April 21, 2014
By Eric PfeifferApril 19, 2014 10:06 PM
Mayor Jim Ardis (Peoria City website)
However, the Journal Star says that Twitter had already suspended the @Peoriamayor parody account before the raid took place and that the only thing police found on site was some marijuana.
The alleged creator of the Twitter account, Jacob Elliott, 36, was charged with one count of marijuana possession but was not charged with any crimes related to the parody account.
The official request for a search warrant filed with the Peoria police reads in part:
“In addition to the creation of the @peoriamayor twitter account, Mayor Ardis discovered that the individual had created ‘tweets’ impersonating Mayor Ardis. These ‘tweets’ implied Mayor Ardis utilizes illegal drugs, associates with prostitutes, and utilized offensive inappropriate language.”
In their investigation of Elliot’s home, police seized his laptop, iPhone, computer memory cards, two Xbox gaming systems and several pieces of marijuana paraphernalia, along with other electronic items.
According to reports, as many as seven police officers took part in the raid, questioning three individuals in connection with the Twitter account and arresting two at their workplaces.
"They just asked me about the Twitter account, if I knew anything about it," 27-year-old Michelle Pratt told theJournal Star.
Though no charges have been filed related to the fake Twitter account, 28-year-old Jon Daniels, who also took part in the parody, said in an interview with Vice that he still fears charges could be filed against him.
However, rather than silencing dissent, news of the raid has since resulted in a number of new parody accounts being created across Facebook, Twitter and other social media sites.
The story has even resulted in a Wikipedia page for Ardis, labeling the results of the raid as creating the “Streisand effect,” in which a public figure’s attempt to conceal an event results in greater attention being placed upon said person, thing or event.
Peoria Police Chief Steve Settingsgaard defended the raid saying it was not clearly written as a parody account. He noted that the account listed the mayor’s actual email address and linked back to the city’s official website.
"I don't agree it was obvious, and in fact it appears that someone went to great lengths to make it appear it was actually from the mayor," Settingsgaard said.