Leyzorek Nails 26 Theses on the Wall of the Supreme Court

In the Supreme Court of Appeals  of  West Virginia

Pocahontas County Solid Waste Authority, Plaintiff

Vs.

Alikakos et als                              Civil Action # 07-C-30(P)                       14 November 2013

Defendant Leyzorek's Summary Statement and Assignment of Errors

This case is not about a garbage fee.

It is about the most important issue in the founding and preservation of our Republic, that is,

 Constitutionally Limited Government, or Enumerated Powers.

There are seven fundamental issues here.  Of these, three are specific to the instant action filed by

 the Plaintiff PCSWA

1. The West Virginia Code explicitly states that enforcement of Mandatory Garbage Disposal

belongs to the DEP.  Nowhere among the enumerated powers of Solid Waste Authorities in the

 Law is any specific  power granted to enforce these regulations. And lest it be supposed that

 enforcement by SWAs is granted by the general license to effectuate their purposes, the Code

 explicitly prescribes that enforcement is to be referred to the DEP or appropriate law

enforcement agency.  Therefore the Plaintiff PCSWA is without standing to bring this action.

 (Vide Defense Motion #12)

2. The instant action was allowed to proceed by the Court for five years, even though it  specified

 no specific remedy, neither a specific sum of money alleged to be owed, nor any lawful method

 by which such an amount might be calculated.  How much trouble could it have been for the

 Plaintiff to specify the exact debt owed, if indeed any is owed? By this omission, the defendant

 was deprived of the most crucial element of the charge against him, the specific “nature of the accusation” which violates the 6^th Amendment to the US Constitution.  (Vide Defense Motions

5,   #2, #7)

            In January of this the sixth year of this action, Plaintiff finally furnished on the Judge's

 Order a calculation of monies allegedly owed.  It includes fees for the six years preceding the

 filing of the action, whereas Statute prohibits collection of debts more than five years old, and

 adds interest at the rate of 18% per annum despite the fact that charging interest is not among the

 enumerated powers of Solid Waste Authorities under West Virginia Law.

3. The instant action is based upon attempts to levy and collect monies which violate the Federal

 fair Debt Collection Practices Act, specifically Section 808 (15 USC1692f)(1);  Section 809 (15

 USC 1692g)(3) , (4) , and (5)(c) ; and Section 812 (15 USC 1692)(a)

Five relate to the validity in law of the alleged Mandatory Garbage Disposal Regulations,

 supposedly adopted by the Plaintiff PCSWA, from  which the alleged debt that is the subject of

this action is alleged to derive.

4. The WV Code clearly, repeatedly,  and explicitly  states that  charges made by SWA's must be

 for services  received, and in fact must be proportional to the amount of garbage disposed of;

whereas the alleged PCSWA regulation in question specifies that no relation exists between 

  its so-called  “Green Box Assessment Fee”  and any need, use or consumption of any specific

 service provided by the Plaintiff for disposal of any garbage.  (Vide Defense motions #9, #13).

  Thus the regulation is ultra vires, in opposition to the State Code, and has no validity.

5.      The WV Code grants powers to SWA's to act in furtherance of their statutory mission. No

 lawful power exists in government agencies to oppose the legislative intent of their existence.

The WV Code is explicit and voluble in charging SWA's with promoting recycling, and

 minimizing the amount of garbage disposed of (resources squandered) by landfilling. The

 alleged MGDR's on which this action is based act in direct opposition to these overriding

 purposes, and thus are invalid.  (Vide Defense Motion #10)

6. The WV Code recognizes a  variety of lawful methods of garbage disposal.  Landfills around

 the State and in surrounding States, including PCSWA's landfill,  accept trash from any source,

 for a tipping fee.

  West Virginia landfills, including PCSWA's landfill, are obligated by law to accept household

 trash free of charge, on one day per month.  An infinity of  responsible and lawful local and

 individual, commercial and non-commercial  reuse and recycling practices exist.  Yet the alleged

  MGDR's on which this action is based unlawfully restrict and fail to recognize any but a small

 sub-set of this universe, and attempt to specifically discriminate against and penalize any

 Pocahontas County property owners who fail to give up rights available in other nearby

 jurisdictions.  This places said alleged MGDR's in violation of the 14^th Amendment to the US

 Constitution, Section 1, and therefore they are void and unenforceable. (Vide also Defense

 Motion #14)

7. However it may be disputed whether  the Plaintiff PCSWA's so-called Green Box Assessment

 Fee is a “fee” or a “tax” in Law, it meets the lawful requirements for neither. All taxation, which

 pays for generalized benefits not apportionable to specific individuals, in West

 Virginia, must by law be based on assessment, and the gratuitous and deliberately misleading

 inclusion of the word “assessment” in the name of this exaction does not add any justifying

 elements of actual lawful assessment to the process by which it is imposed.        Furthermore

 Plaintiff has neither inherent not explicit taxing powers, vide   Motion #15.    A “fee” in

 Law  necessarily derives from contractual relations, which are absent from the process by which

 the Plaintiff PCSWA attempts to exact the disputed sums from Pocahontas County property

owners.  Being neither lawful fish nor lawful fowl, this demand has no enforceable validity in

 law. (Vide Defense Motions #15, #16, #19a, #9, #18a)

This case is fundamentally about whether Government and its agencies are our masters and able

 to exercise unlimited and capricious power , or are, as specified by our Founders, the servants of

 the people and bound by law to their proper granted, legislatively expressed and defined,

 enumerated purposes and powers.

Errors made by Trial Court

1.  Denial of  Motion to Dismiss #1    For Attempted Fraud upon the Court:  Falsehoods in

 Complaint:     Plaintiff was not a Constitutional body at the time of initiation of lawsuits, not at

 time of adoption of alleged regulations under which suit was brought, nor is enforcement of

 alleged regulations under which suit brought among the Plaintiff's statutory powers and

 responsibilities.

2.  Denial of  Motion to Dismiss #2          Plaintiff  fails to specify Remedy    See Fundamental

 issue #2, above

3. Denial of Motion to Dismiss #3  No Basis for Claim   Having no statutory authority to make

 the charges that were the basis for the action, the Plaintiff also stated no valid basis.

4. Denial of Motion #4   to Deny Interest    Interestingly, the Court has now made this error

 twice, and avoided it once, originally denying this motion without any cogent rebuttal by the

 Plaintiff in 2007.  In March of 2013, as evidenced by the official Transcript, attached, the Court

 correctly ruled that NO pre-judgement interest might be charged.  However, in the Order as

 fraudulently prepared by the Plaintiff's attorney, and as signed by the Judge on 18 October of this

 year, interest is added without any showing having been made by Plaintiff of lawful authority to

 do  so.

                                                                          

5.  Denial of Motion #6, Amended, Plaintiff and regulation incompetent    The Constitution of

 West Virginia requires all officers to take an oath of office prior to entering upon their duties.

  The instant suit is for a debt alleged to have accrued before the earliest date upon which the

 Plaintiff could have lawfully enacted regulations of any kind. See Motion #6, amended.

6. Denial of Motion to Dismiss #7  No Properly Adopted Method for Calculating Charges .

Plaintiff was unable to show any consistent and lawfully adopted method by which it

 arrived at the charges it sued to collect.

7.  Denial of Motion to Dismiss #9  Fee for Service Only     See Fundamental Issue #4

 8. Denial of Motion to Dismiss #10  Regulations Inconsistent with Mission    See

 Fundamental Issue # 5.

9. Denial of Motion to Dismiss #11  Plaintiff has No Standing due to Unconstitutionality. During

most of the period during which the alleged debt which is the subject of this action is alleged to

 have accrued, and at the time when it acted to initiate suit against non-payers of its so-called

Green Box Fee, the Plaintiff was an unConstitutional body with no Constitutionally adopted

regulations, due to failure of quorum of members to be properly sworn according to WV Code

§6-1-3 and West Virginia Constitution.   Article IV, Section 5

10.  Denial of  Motion to Dismiss #12  Plaintiff has No Standing to Enforce de Jure.  See

 Fundamental Issue #1.

11. Denial of Motion to Dismiss #13    No Need for and No Use of Green Box Service.   See

 Fundamental Issue #4

12. Denial of Motion to Dismiss #14 Rights cannot be Abridged. See Fundamental Issue # 6

13. Granting of Motion  #18, Motion for Declaratory Judgment that so called “Green Box Fee” is a Fee.   See Fundamental issue # 7;  Had this motion NOT been erroneously granted,

 Defendant would have presented Motions 19 and 19a, proving the so-called GB Fee a tax, and

 an unlawful one.

14. Denial of Motion  to Dismiss#18a, Contingent:  Green Box Fee is a Fee  which can only

 be charged to users.  See Fundamental Issue # 7

15. Denial of Motion #32, for disposition in favor of Defendant, of  Defense Motion #12,

 “Plaintiff has No Standing to Enforce de Jure”

16.  Rejection of Objection to Proposed order and Denial of Motion #34 for Dismissal or

 Reversal.

17. Denial of Motion #35, for Dismissal with prejudice for lack of action for three years and

two months, and derelict and contemptuous behavior by Plaintiff.

18. Denial of Motion #36, for Declaratory Judgement that  PCSWA’s “Solid Waste

 Assessment Fee” a/k/a “Green Box Fee” is a Tax      See Fundamental Issue #7

19. Denial of Motion #37, for Dismissal because PCSWA green box assessment on which this

 action is based denies Defendant equal protection of the Laws of this State (ref US

 Constitution 14tth Amendment), and is therefore void and of no force or effect.   See

 Fundamental Issue #6

20.   Denial of Motion to Dismiss #38  Local regulation in conflict with Statute.    See

 Fundamental Issues #4, #5

21.  Denial of Motion #39, for Dismissal because of Plaintiff's continued pattern of

contemptuous and dilatory behavior

22.  Denial of  Motion #40, for  Injunction against collection of levy without lawful

 authority, or dismissal with prejudice.

23.  Denial of Demand for Plaintiff to show method and lawful authority for method of

 calculating alleged debt, and Motion for Dismissal #41, Revised,  if he cannot

24. Denial of Defendant Leyzorek's Motion #43, for Reconsideration

25.  Inaction  on Defendant Leyzorek's Motion #44, for Rule 60 Correction of Error,

 alternatively for Reconsideration

26.  Inaction on Defendant Leyzorek's Motion #45, for Order to Show Cause Why Attorney

 Gregory Tingler should not be Held in Contempt                     

    

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 Law in this case.     

 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

Route 1 Box 249

Marlinton, WV 24954