What is a Salvage Yard?

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 #6, for Dismissal due to inapplicability and unenforceable vagueness  in Statute 

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 definition of a Salvage and Salvage Yard under which I am alleged to have one, shows itself inapplicable to the facts of the case, and elsewhere is unenforceably broad and vague as applied to my property.

History

The instant charge relates to the false allegation that I have a salvage yard on my property.

Argument

§17-23-2. Definitions.
As used in this article:

(h) "Salvage yard" means any place which is maintained, operated or used for the storing, keeping, buying, selling or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard.....

            The common understanding of  the term, “salvage”, as a noun, is material of no use in its current form, suitable only for recycling or reprocessing,usually material that has been  rejected or abandoned as of little value.

            I am blessed to have had the opportunity to acquire, and to possess under my fundamental and unalienable Constitutionally protected right to property, quantities of materials of use and value to me.  All has value to me. Only approximately two old refrigerators and two washing machines in my possession,occupying approximately  50 square feet of land area, could possibly be referred to as “salvage”, and they are neatly piled together awaiting sale to scrapyard to defray cost of travel to Lewisburg.  Everything else that may have been observed on my property was acquired at cost in money or labor, and I possess it for some distinct and definable lawful purpose, including but not limited to materials for construction of buildings, usable or repairable farm or construction or industrial machinery, or components therefor.  I possess my personal property on my land  by unalienable right, and it impinges in no way on the rights of any other individual.

            I do not regularly buy or sell any of this material, and my premises are not regularly operated as part of any business activity, which is the situation contemplated in the Statute.

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            No motor vehicle graveyard exists on my property.  The  motor vehicles I possess are either registered and in use, or are intended for repair and use by myself of my family members or support of other similar vehicles or machines, or have been converted to storage buildings, or some combination of such lawful uses..

            The Code offers the following definition for “salvage”

(g) "Salvage" means old or scrap brass, copper, iron, steel, other ferrous or nonferrous materials, batteries or rubber and any junked, dismantled or wrecked machinery, machines or motor vehicles or any parts of any junked, dismantled or wrecked machinery, machines or motor vehicles.

            However, , WV Code §17-24A-1. Definitions  states,

(3) "Abandoned motor vehicle" …...means  any motor vehicle, or major part thereof, which is unattended, discarded, deserted and unlicensed and is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher Provided, That a motor vehicle, or major part thereof, is not an abandoned motor vehicle if: (a) The owner of the motor vehicle is storing the motor vehicle on the owner's property; (b) the motor vehicle is being stored for the purpose of using its parts on other motor vehicles owned by the owner; (c) the owner owns other motor vehicles similar to the motor vehicle being stored; (emphasis added)

            Nothing here has been “junked” , which implies having been discarded as of no use in its current form, nor “dismantled” into its component parts, nor “wrecked”.  Nothing here is “scrap”, except for a small quantity, segregated and  contained in old refrigerator as described above  for eventual sale.

            “Old....[metals}” as included in the statute's purported definition of “salvage” certainly applies to much of what I possess, but creates an ambiguity fatal to the enforceability of the entire definition, because it allows a potentially capricious and oppressive subjectivity in enforcement, capriciously and subjectively applied in the instant case. Under that word, the Iron Horse sculpture in Elkins is “salvage”, as is the Statue of Liberty (mercifully beyond the jurisdiction of West Virginia's DOH!), as is the inventory of antique stores, as is, in fact,the inventory of every new automobile dealer in the State, as ALL metals were formed at the creation of and are coeval with the world, and their reprocessing into manufactured goods does not cure their age.

            Plaintiff Mr. Demotto actually told me a story while he was trespassing on my property last June, which I trust he will not now deny. He said that he had seen a collection of several cars on someone's property, Mustangs if I remember him correctly, and he knew these were not “salvage”, because they were “valuable”.

            Mr Demotto's personal notions of value are his own, and deserve respect as his personal opinions, however they are not the Law, and his story in context makes it clear that in bringing the instant charge he is attempting to utilize ambiguity in that Law to give his personal tastes power to infringe on my rights. His lack of experience, technical skill or imagination to recognize value in my personal property cannot be allowed to capriciously convert my personal property to “salvage” subject to regulation or confiscation.

 Although the general guidelines for vagueness have been anything but clear themselves, there is one principle of the ‘void for vagueness' doctrine which the United States Supreme Court has clearly defined. Statutes governing potential First Amendment and similarly sensitive constitutional rights will be strictly tested for certainty   by interpreting their meaning from the face of the statutes.   Thornhill v.

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Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.   General criminal statutes, not touching on potential rights of individuals in First Amendment or other constitutional areas sensitive to

abuse by potential maladministration of a system of justice, are tested for vagueness not only from examining the face of the statute but by considering the statute in the light of the conduct to which it is applied.   United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561.

The Thornhill opinion also stated: ‘A like threat is inherent in a penal statute,  which does not aim specifically at evils within the allowable area of State control, but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom …..’   Thornhill v. Alabama, Supra at 97, 60 S.Ct. At 742.  Since my possessions on my property do not in any way impinge on the rights of any other individual, they are NOT “ within the allowable area of State control”

 Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, involved the constitutionality of a Florida vagrancy statute. The Supreme Court held the ordinance penalizing loitering constitutionally void for vagueness. The Court said: ‘This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’  and because it encourages arbitrary and erratic arrests and convictions.'   Papachristou v. City of Jacksonville, Supra at 162, 92 S.Ct.

at 843. The Supreme Court further noted the unfettered discretion placed by the ordinance in the hands of the police. The Court stated: ‘Where, as here, there are no standards governing the exercise of the discretion  granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’ .'   Papachristou v. City of Jacksonville, Supra at 170, 92 S.Ct. At 847.

The Court held '(n)o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ Lanzetta v. New Jersey, Supra at 453, 59 S.Ct. At 619.

            Further, as found in 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).

The Statute is alleged to apply to  certain items of personal property on the Defendant's premises, however its definitions are highly non-specific and ambiguous as shewn above  This creates a degree of ambiguity fatal to the charge,  which must be resolved in favor of the Defendant,

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Thus the Statue is unconstitutionally vague in this attempted application to my property, and 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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In the Magistrate  Court of Pocahontas County, West Virginia

 Case # 13-M38M-00374  -State v. John Leyzorek

Lorren H.Demotto, Plaintiff

Vs.

John Leyzorek                           

21 November 2013                  

Motion #8, for Dismissal due to UnConstitutional  Inapplicability to Facts 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 statute and regulations under which I am charged are UnConstitutional in their application to the facts of the case.

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

            West Virginia's Constitution recognizes the fundamental right to property as follows

ARTICLE III 

3-1.  Bill of rights.

     All men …. have certain inherent rights, ….. [including] acquiring and possessing property....The Constitution of West Virginia, in Article I

1-2.  Internal government and police., states, “ ….. it is the high and solemn duty of the several departments of government, created by this constitution, to guard and protect the people of this state from all encroachments upon the rights so reserved.”

            The instant action  attempts to convert my fundamental rights to property into privileges, subject to the granting or withholding of permission by, payment of a fee to, and subject to inspections by,  a government agency.

            It is the core of our system of government and well-established in Law that government can burden the fundamental rights of the People ONLY if it demonstrates a compelling interest in doing so, and   then must do so by the least restrictive possible means. (Sherbert v Verner)

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            The statutes purporting to regulate salvage yards, under which I am charged,  are crystal clear in their intent, that is, in the government  interest which they pursue, which is to preserve aesthetic values along public highways.

            Recognizing that the Courts have not been consistent in agreeing that this is indeed even a legitimate Government interest, nonetheless it is the sole and explicit interest embodied in the Statute.

            Even if we agree for the sake of argument that protection of aesthetics along highways  is a legitimate and compelling interest, it is no less crystal clear that it has absolutely no application to the facts of the instant case, since no man-made object or feature of my property whatsoever is visible under any circumstances from any public highway.

            As the State utterly lacks a compelling interest in regulating my personal property, the means test is irrelevant, and the Statutes unConstitutional and therefore void as applied to the  facts of this case.(  An act of the legislature may be valid in its general scope and broad outline but invalid to the extent that the restrictions imposed thereby are clearly arbitrary and unreasonable in their application to specific property.(146 W.Va. 24 J. Henry Francis, Jr., Lively, Light & Francis, Charleston, for plaintiff.

        (In Carter v. Bluefield, 132 W.Va. 881, pt. 8 syl., 54 S.E.2d 747, 750, the Court stated: 'A municipal ordinance creating zoning districts and imposing restrictions upon the use of property within such districts may be valid in its general scope and broad outline but invalid to the extent that the restrictions imposed are clearly arbitrary and unreasonable in their application to particular property.')

            If my right to own real and personal property should be recognized as a  right yet not fundamental in nature, then the test applied to laws infringing it is much weaker, that is, that the law must merely have a rational basis.

            The sole potential rational basis, protection of aesthetics along highways, is clearly articulated in the Statutes, but again, it is clearly inapplicable to the facts of the instant case, thus the Statutes are unConstitutional and thus of no force or effect as applied to the facts of the instant case.

            (A statute or an ordinance may not, under the guise of the police power, impose arbitrary or unreasonable restrictions upon private property or the pursuit of useful activities, Quesenberry v. Estep, 142 W.Va. 426, 95 S.E.2d 832; Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d [146 W.Va. 54] 747; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Anderson v. Jester, 206 Iowa 452, 221 N.W. 354; Merrill v. City of Wheaton, 356 Ill. 457, 190 N.E. 918; and to be valid the statute or the ordinance must bear some real or substantial relation to the public health, safety, morals or general welfare of the area affected. Quesenberry v. Estep, 142 W.Va. 426, 95 S.E.2d 832; Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Women's Kansas City St. Andrews Society v. Kansas City, Missouri, 8 Cir., 58 F.2d 593; Hurst v. Burlingame, 207 Cal. 134, 277 P. 308; Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767; Sundlun v. Zoning Board of Review, 50 R.I. 108, 145 A. 451; Standard Oil Company v. City of Bowling Green, 244 Ky. 362, 50 S.W.2d 960, 86 A.L.R. 648; Freeman v. Board of Adjustment, 97 Mont. 342, 34 P.2d 534.)

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            Under the police power a statute or regulation  must tend to the preservation of the lives, the health, the morals and the welfare of the community. Health Com. v. Rector, 145 N. Y. 32, 45 A. S. R. 579; Lawton v. Steele,

152 U.S. 133; N. O. Gas Co. v. La. Co., 115 U.S. 650; People v. Gillson, 109 N. Y. 389, 4 A. S. R. 465;

Young v. Com., 101 Va. 853, 45 S. E. 327; State v. Cary, 126 Wis. 141, 105 N. W. 327.

            Property rights cannot be invaded under the guise of a police regulation for the preservation of the health, safety or welfare of society when such is clearly not the purpose sought. Bailey v. People, 190 Ill. 28, 60 N. E. 98; The Slaughter House Cases, 16 Wall. 36-37; State v. Moore, 22 L. R. A. 472 (9 N. Car.);

            Again,the purpose of Chapter 17 of the Code is made unambiguously clear in its opening section, and is purely and exclusively aesthetics along highways.  The health, safety or welfare of society are not involved, thus there is no justification for invasion of Defendant's private property rights under the Statute or the circumstances of this case.

            Further, an “essential nexus” must exist between the asserted legitimate state interest” and the permit condition imposed by government.  Nollan v. California Coastal Comm’n., 483 U.S. 825, at ___ ,107 S.Ct. 3141, 3148 (1987); Dolan v. City if Tigard, 512 U.S. 374, 114 S.Ct. 2309, 2317 (1994).

            Aesthetics is unambiguously the sole State interest asserted by the Statute, and since my property and possessions are invisible from all public rights-of-way, there is no nexus, and no validity of the statute as applied to the facts of this case.

            Also from Michie's jurisprudence,  “The only authority which a State has to prohibit, regulate, or control the private business of a citizen grows out of its “police power”, or power to enact laws pertaining to the public health, public safety, or the public morals.  A statute regulating such private business in a manner which in no wise pertains to public health, safety, or morals is not a valid exercise of police power. Young v Com 101Va 853, 45 SE 327; Laurel Fork & Sand Hill R Co v WV Transp Co 25 WVa 324; State v Dent 25 WVa 1, affirmed 129 US 114, 95 Sct 231, 32 L. Ed. 623

            Thus for multiple causes, relative to the circumstances of this case  the Statute is void and of no force or effect, due to unconstitutionality in this attempted application to my property, and 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.

(By Defendant Pro Se John Leyzorek   304-799-7191

2133 Edray Road  Marlinton, WV 24954