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In the Magistrate Court of
Pocahontas County, West Virginia
Case # 13-M38M-00374 -State v. John Leyzorek
Lorren H.Demotto, Plaintiff
Vs.
John Leyzorek
9 December 2013
Motion #5, (Rev), for Dismissal due
to lack of Jurisdiction or Standing Page 1 of 3
Relief Requested
Now comes
before this honorable Court Defendant John Leyzorek, asking that the instant
case and charge against him be DISMISSED, with prejudice, because the Division,
Department, or Commissioner of Highways of West Virginia, through its agent
Plaintiff Loren Demotto, and the Statute under which the instant charge is
brought, have no lawful jurisdiction over my premises or activities.
History
On or about
12 June of 2013, Plaintiff Lorren
Demotto unlawfully entered my property through my latched gate, past multiple
“No Trespassing” signs, bearing a defective search warrant. He claimed to be and to be acting as an agent of the WV Division of Highways,
and made certain observations and
expressed certain invidious personal opinions about my premises and
possessions.
He correctly observed that the portion of my
premises which he inspected was a mile or more (over 5,280 feet) from the public road.
On or about
10 September of the same year, he filed the instant false and malicious
criminal complaint against me
Argument
The instant
charge is made under West Virginia Code §17-23-
9.
Let it be
noted that Chapter 17 of the Code is titled, “Roads and Highways”
Let it be
noted that no part of my property which is the subject of the instant action
approaches at any point closer than approximately 3,000 feet from any public
road or right of way, the observations by Mr Demotto which occasioned the
instant charge were made approximately 4,000 feet from the nearest road.
Let it be
noted that Article 23 of the Code is introduced by the legislative findings
which justify, and define the legislative intent of its provisions as follows:
§17-23-1. Legislative
finding.
3
The Legislature hereby finds and declares that the
establishment, operation, maintenance and
use of salvage yards in areas adjacent to state roads,
including federal-aid interstate and primary roads, is unsightly,
visually offensive, depresses the value of the public investment in such roads,
detracts from the safety and recreational value of travel thereon and destroys
natural beauty, and therefore should be controlled in order to protect the
public investment in such highways, to promote the safety and recreational
value of public travel thereupon, and to preserve natural
beauty. (bold type and underline added)
I
categorically deny that I possess, harbor,
or operate a salvage yard on my property, but let it be noted that the above Code
section refers specifically and exclusively to “areas adjacent to state
roads”, as being appropriate subjects for control under the Chapter and
Article of Statute, for certain clear,
specific and enumerated reasons.
Ҥ17-2A-8. Powers,
duties and responsibilities of commissioner” , contains a list of 40 items which I will not reproduce here,
of which 32 relate directly and exclusively to roads, highways, and road
rights-of-way, and the remainder refer to legal, fiduciary, or procedural
duties connected to the maintenance of the road system. Conspicuously absent from the list is any
mention of regulation or oversight of private lands, land uses, or private
business or personal activities unconnected with roads or transportation
Title
157, Legislative Rule, Department of Transportation, Division of Highways,
Series 6 is subtitled, “Use of State Rights of Way and Adjacent Areas”
Videlicet,
Ҥ157-6-1 General,
1.1 Scope - This legislative rule
establishes general rules pertaining to the use of State rights of way and
adjacent areas
1.2 Authority – This rule is issued under authority of
WV Code §§ 17-1, 2A, 4, 16, 20, 22, and 23”
(underline added)
The title
of this Rule repeats the prescription that its authority relates specifically
and exclusively to roads and right-of-way and areas adjacent, and the Authority
line 1.2, by referring back to Code section §17-23 (under which the instant
charge is erroneously made) confirms that in the opinion of the DOH the
specific and restricted applicability to highways and areas adjacent applies
to the regulation of salvage yards, under which I am charged.
The term
"Adjacent", as found in the Statute is defined in 23 U.S.C., Section 136(b) as “within
1000 feet”. All parts of my property are beyond dispute more than three times
that distance from any highway or public
right-of-way.
Cornell University Law School's Legal Information Institute states,
“Any question of statutory interpretation begins with
looking at the plain language of the statute to
discover its original intent. To discover a statute's
original intent, courts first look to the words of the
3
statute and apply their usual and ordinary meanings.
The scope and clear rationale of of the regulatory power
of the DOH and Chapter 17 of the Code is unambiguously stated in the
Introduction to the Chapter, and it is, to protect aesthetic values visible
from and adjacent to highways.
LIL continues, “
Other rules of statutory interpretation include, but
are not limited to:
·
Statutes should be internally consistent. A
particular section of the statute should not be inconsistent with the rest of
the statute.
·
When the legislature enumerates an exception
to a rule, one can infer that there are no other exceptions.
The
Statute's introduction delimits its authority.
For a later provision to expand that authority would be
inconsistent. The Introduction
prescribes no exceptions from the limitation of its authority to areas adjacent
to highways, therefore no exceptions are to be made.
Were these
principles not sufficient to fully resolve any supposed ambiguity, LIL
continues by enunciating:
·
The Rule of Lenity: in construing an
ambiguous criminal statute, a court should resolve the ambiguity in favor of
the defendant. ( Michie's Jurisprudence of West Virginia, "[i]t is ...
fundamental ... that penal statutes ‘must be strictly construed against the
state and limited in application to cases falling clearly within the language
of the statute.’ " Commonwealth v. Knott, 11 Va.App. 44, 47, 396 S.E.2d
148, 150 (1990) (quoting Crews, 3 Va.App. at 536, 352 S.E.2d at
3). "Words of a penal law will not be extended by implication to the prejudice of the accused,
and all reasonable doubt must be resolved in his favor." Waller v. Commonwealth, 192 Va. 83, 88, 63 S.E.2d 713,
716 (1951)
317 (1994).)
Thus it
is clearly established that the DOT/DOH of which Mr.Demotto is an agent, and
the Statute and rules which he is charged to enforce and under which the
instant charge is brought, have no
jurisdiction, authority, nor
applicability to or over my property, therefore this case must be
DISMISSED, with prejudice.
John Leyzorek, pro se defendant is not an attorney, and
recognizes and admits his ignorance of many fine points of law and procedure,
but respectfully asserts an
understanding of the principles of justice and of his rights and of the merit
of his defense .
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)
By
Defendant Pro Se John Leyzorek 304-799-7191
2133
Edray Road
Marlinton,
WV 24954
Motion #9, for Dismissal due to Ambiguity
Page 1 of 1
In the Magistrate Court of
Pocahontas County, West Virginia
Case # 13-M38M-00374 -State v. John Leyzorek
Lorren H.Demotto, Plaintiff
Vs.
John Leyzorek
28 November 2013
Motion #9, for Dismissal due to Ambiguity
Page 1 of 1
Relief Requested
Now comes
before this honorable Court Defendant John Leyzorek, asking that the instant
case and charge against him be DISMISSED, with prejudice, because the statute
and regulations under which I am charged are ambiguous, which ambiguity must be resolved in favor of the Defendant
History
The instant
charge under §17-23-9 is that I am maintaining a Public Nuisance on my property, which alleged nuisance is
comprised of assorted items of my intrinsically lawful personal property.
Argument
"[i]t is ... fundamental
... that penal statutes ‘must be strictly construed against the state and
limited in application to cases falling clearly within the language of the
statute.’ " Commonwealth v. Knott, 11 Va.App. 44, 47, 396 S.E.2d
148, 150 (1990) (quoting Crews, 3 Va.App.
at 536, 352 S.E.2d at 3). "Words of a penal law will not be extended by
implication to the prejudice
of the accused, and all reasonable doubt must be resolved in his favor." Waller v. Commonwealth, 192 Va. 83, 88, 63 S.E.2d 713,
716 (1951) 317 (1994).
The Statute
is alleged by the prosecution to apply to any area of the State and thus to the
property of the Defendant, however its opening section which expresses the
legislative intent, clearly applies it
only to areas adjacent to the highway.
If attempt is made to violate the normal principles of statutory
construction and read section nine separately from the rest of the Chapter of
which it is part, nonetheless the existence of section one creates an ambiguity, which must be resolved in favor of the
Defendant, thus charges based thereon must be DISMISSED, with prejudice.
John Leyzorek, pro se defendant is not an attorney, and
recognizes and admits his ignorance of many fine points of law and procedure,
but respectfully asserts an
understanding of the principles of justice and of his rights and of the merit
of his defense .
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)By Defendant Pro Se John Leyzorek 304-799-7191
2133 Edray Road Marlinton, WV 24954
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