in the supreme court of the united states -...
TRANSCRIPT
NO. ___________
In The
Supreme Court of the United States
IN RE WILLIAM SCHEIDLER,
Petitioner,
v.
JAMES AVERY, et. al,
Respondents.
On Petition for a Rule Nisi, or Writ of Mandamus to
the
9th Circuit Court of Appeals
PETITION FOR RULE NISI, OR A WRIT OF
MANDAMUS
William Scheidler.
Petitioner, pro se
1515 Lidstrom Place East.
Port Orchard, WA 98366
Tel: (360) 769-8531
Email: [email protected]
1
I. ORDERS REQUESTED
Plaintiff and defendants, (a.k.a. the state’s governed
and their government), are bound to each other
directly, but inversely, and solely under Washington
state’s constitution and laws. Therefore this Court
should,
Compel the 9th Circuit to, or show cause why it does
not, apply Washington State laws as the US 10th
amendment provides, 28 USC 1652 demands, and 28
USC 2072(b) prohibits “abridging, modifying or
enlarging”.
Compel the 9th Circuit to exercise its fiduciary
obligations to hold its ‘officers of the court’ to their
legal and ethical duty as required by FRAP 46, circuit
rule 46-2 and LCR 83.3.
Or provide by rule, an impartial forum, as 28 USC
455(a) and (b)(4) mandates, to address frauds upon
the court, Scheidler and society, by officers of the
court, and halt the incestuous practice in judges-
judging-judges concerning the laws, rules and ethical
obligations that govern judges,
2
3
II. PARTIES TO THE PROCEEDING
William Scheidler,
Plaintiff, Petitioner
V
James Avery, individually and in his official capacity
as Kitsap County’s Assessor; Alan Miles, individually
and in his official capacity as Kitsap County’s deputy
prosecutor; M. Karlynn Haberly, Individually and in
her official capacity; Kay S. Slonim, Individually and
in her official capacity; Felice Congalton, Susan
Carlson, David Ponzoha, Zachary Mosner, Ione
George individually and in her official capacity, the
Washington State Board of Tax Appeals (BoTA),the
Washington State Bar Association, and Jane and
John Does, 1-100.
Defendants/Respondents.
Contents
I. ORDERS REQUESTED ............................. 1
II. PARTIES TO THE PROCEEDING ........... 3
III. PETITION FOR A SHOW CAUSE ORDER,
OR IN THE ALTERNATIVE, WRIT OF
MANDAMUS ......................................................... 8
IV. RULINGS AT ISSUE. ................................ 8
4
V. JURISDICTION ......................................... 9
VI. RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS. ................................ 9
VII. STATEMENT OF THE CASE.................. 10
1. Introduction .............................................. 10
2. Facts/Exhibits ........................................... 11
3. Summary of proceedings below. ............... 12
VIII. ARGUMENT ............................................. 14
1. State law must be the rule of decision in
federal courts as the US 10th amendment
provides and 28 USC 1652 demands. ...... 14
2. Civil actions are constitutionally protected,
a jury trial is an “inviolate right”; neither
can be limited or denied by a judge. ......... 15
3. The Federal Courts, on the face of their
memorandums, are in violation of the US
10th amendment, 28 USC 1652 and 28 USC
2072(b). ...................................................... 20
4. The Federal Courts, on the face of their
memorandums, are in violation of federal
common law. ............................................. 30
IX. REASONS FOR ISSUING A SHOW
CAUSE OR IN THE ALTERNATIVE
MANDAMUS ....................................................... 31
X. CONCLUSION ......................................... 34
Cases
5
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ............. 21
Bankers Life & Casualty Co. v. Holland, 346 U.S.
14379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953) 32
Batey v. Batey, 35 Wn.2d 791, 215 P.2d 694, 1950
Wash. LEXIS 512 .................................................. 21
Bernhardt v. Polygraphic Co. of America, 350 US
198, 203 (1956) ...................................................... 16
Bernhardt v. Polygraphic Co. of America, 350, 203
US 198 (1956) ........................................................ 19
Cipollone v. Liggett Group, Inc., 505 US 504, 516
(1992) ..................................................................... 20
Cities Service Co. v. Dunlap, 308 U.S. 208 .............. 30
Cudihee v. Phelps, 76 Wash. 314 (Wash. 1913) ...... 15
Erie R. Co. v. Tompkin ............................................. 30
Estate of Stalkup v. Vancouver Clinic, Inc., PS, 145
Wn. App. 572, 187 P.3d 291, 2008 Wash. App.
LEXIS 1576 ........................................................... 29
Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) ..... 20
Hollingsworth v. Perry, -- U.S. -- 130 S.Ct. 705, 709-
10 (2010) ................................................................ 32
Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684, 1953
Wash. LEXIS 329 .................................................. 21
Klaxon Co. v. Stentor Co., 110*110 313 U.S. 487, ... 30
McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96
............................................................................... 18
McNabb v. United States, 318 US 332, 347 (1943) . 31
6
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
2009) ...................................................................... 25
Palmer v. Hoffman, 318 U.S. 109, 117 ..................... 30
Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
2008) ...................................................................... 24
Sampson v. Channell, 110 F.2d 754 ......................... 30
Schlagenhauf v. Holder, 379 US 104, 111 (1964) .... 19
Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d
711, 1989 Wash. LEXIS 42, CCH Prod. Liab. Rep.
P12 ......................................................................... 17
State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251
(2007) ..................................................................... 29
U.S. ex rel. Lee v. Corinthian Colleges, 655 F.3d 984,
995 (9th Cir. 2011) ................................................ 22
Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269,
19 L.Ed.2d 305 (1967) ........................................... 32
Statutes
28 U.S.C. § 1254 .......................................................... 9
28 USC §§ 2106, 2201, 2202 ..................................... 33
28 USC 1251 ......................................................... 9, 31
28 USC 1651 ............................................................... 9
28 USC 1652 ...................................................... passim
28 USC 2072 ...................................................... passim
28 USC 455 ........................................................ passim
RCW 2.28 ........................................................ 9, 50, 51
RCW 2.28.030.................................................. 9, 17, 50
7
RCW 2.48.180.............................................................. 9
RCW 4.36.240................................................ 10, 18, 58
RCW 4.40.060................................................ 10, 17, 58
RCW 4.44.090................................................ 10, 17, 58
RCW 4.92.010.......................................... 10, 15, 18, 59
RCW 4.96.010...................................................... 15, 60
RCW 84.36.383 ........................................ 10, 17, 18, 19
RCW 84.36.385 .......................................................... 10
Rules
circuit rule 46-2 ..................................................... 1, 26
FRAP 46 .................................................... 1, 26, 40, 43
LCR 83.3 ................................................................ 1, 45
Constitutional Provisions
Article 1, section 1 .......................................... 9, 16, 17
Article 1, section 12 .................................................... 9
Article 1, section 21 ........................................ 9, 15, 16
Article 1, section 28 .................................................... 9
Article 1, section 4 ................................................ 9, 15
Article 1, section 8 ...................................................... 9
Article 2, section 28 ........................................ 9, 15, 18
Article 2, sections 26 ................................................. 18
Article 4, section 16 ........................................ 9, 16, 22
Article 4, section 19 .................................................. 23
Article 7, section 10 .................................. 9, 10, 11, 18
8
III. PETITION FOR A SHOW CAUSE ORDER,
OR IN THE ALTERNATIVE, WRIT OF
MANDAMUS
William Scheidler, pro se, respectfully petitions
for rule nisi, or for a writ of mandamus to address the
judicial misconduct in violating the laws that apply to
judges and the split between the 2 panels of the Ninth
Circuit Court of Appeals concerning the laws that
apply in this case.
IV. RULINGS AT ISSUE.
The January 29, 2018 Order of the United
States Court of Appeals for the Ninth Circuit, Case no.
15-35945, (Appendix 1, pp.), denying en banc review
to address the split between panels of the 9th Circuit
on the law of the case.
The August 14, 2017 unpublished
Memorandum of the United States Court of Appeals
for the Ninth Circuit, Case no. 15-35945 (Appendix 1,
) affirming the district judge’s FRCP 12(b)(6)
dismissal of the case.
The March 30, 2015 unpublished Memorandum
of the United States Court of Appeals for the Ninth
Circuit, Case no. 13-35119, (Appendix 1, pp) which
9
AFFIRMED in part, REVERSED in part, and
REMANDED the district judge’s 12(b)(6) dismissal.
The November 17, 2015 District Court’s order
dismissing the action on the pleadings.
V. JURISDICTION
William Scheidler invokes this Court’s original
jurisdiction under 28 USC § 1251(b)(2), or under its
supervisory powers, 18 USC Ch. 1 §4; 28 USC §
1651(b); 28 USC § 2106; or alternatively, an
extraordinary writ per 28 U.S.C. § 1651(a).
VI. RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS.
FULL CITATIONS ARE PROVIDED IN APPENDIX
2.
Federal Authorities:
US Tenth Amendment, Title 28 U.S.C. § 455, 28 U.S.
Code § 1652, 28 U.S. Code §§ 2072, 2106, 2201 and
2202
Washington State:
Article 1, sections 1, 4, 8, 12, 21, and 28; Article 2,
sections 16, 26, 28(12) and (17); Article 4, section 16;
Article 7, section 10; RCW 2.28.030 to RCW 2.28.060;
RCW 2.48.180 through RCW 2.48.230; RCW 4.04.010;
10
RCW 4.32.250; RCW 4.36.070; RCW 4.36.170; RCW
4.36.240; RCW 4.40.060; RCW 4.44.090; RCW
4.92.010; RCW 4.92.060; RCW 4.92.090; RCW 4.96.;
RCW 9A.08.020 through 9A.08.030; RCW 9A.60.030;
RCW 9A.80.010; RCW 42.20.080; RCW 84.36.383;
RCW 84.36.383; RCW 84.36.385.
VII. STATEMENT OF THE CASE
1. Introduction
It all arises from one, unauthorized act that
neither defendants, their lawyers, nor judges have yet
addressed. Defendant, James Avery, Kitsap County’s
Assessor, alters a controlling law, RCW 84.36.383(5),
on the county’s application for the state’s Article 7,
section 10 property tax exemption (Appendix 3). Every
retired and/or disabled homeowner must complete
Avery’s application, (RCW 84.36.385(1)), to obtain this
constitutional right.
Because Avery adds words, substitutes words,
omits words, and rearranges words, of this controlling
law, which is evident on the face of the application
itself, the calculation this law describes is, necessarily,
changed in the same way – adding other numbers,
rearranging mathematical sequences, leaving out
numbers. This “unlawful” calculation and bogus result
produced is used, by Avery, to determine if the
11
retired/disabled homeowner qualifies for the Article 7,
section 10 exemption. Avery’s intent is to “disqualify”
otherwise “qualified” retired/disabled homeowners of
their rights.
Even Scheidler’s lawyer (Scott Ellerby) was
extorted from representing Scheidler by the Kitsap
Prosecutor’s threat to Ellerby’s bar license if he
continued his representation. Such a tactic by the
prosecutor is illegal – lawyers are to uphold the
constitution, specifically Article 7, section 10. This too
is ignored by judges despite their fiduciary obligations
to hold lawyers to their oath and the law.
2. Facts/Exhibits
Scheidler provided documents, which on their
face, support the allegation Avery and the other
defendants are altering the words of the controlling
law and engaging in fraud and extortion.
Appendix 3: Kitsap County’s 2008 application
PROVES, page 3, first paragraph, that James
Avery alters the controlling law the application
purports to cite. It is a criminal violation to
violate any provision of law that regulates
officials duties. See RCW 9A.80.010 and RCW
42.20.080
12
Appendix 4: Dept of Revenue memo to WA
State Assessors that PROVES the fraud
originates with the DOR, under advice by the
Washington State Attorney General.
Appendix 5: Scheidler was forced to sign
defendants’ ‘fraudulent applications’, under
duress – a Class-C Felony under RCW
9A.60.030 - Obtaining a signature by deception
or duress.
Appendix 6: The letters and emails that prove
Scheidler’s lawyer was extorted from his case
by the Kitsap County Prosecutor.
3. Summary of proceedings below.
Defendants, without rebutting the allegations
or addressing the evidence, engaged in forum
shopping and removed Scheidler’s state case to federal
court. Scheidler motioned for disqualification of the
assigned judge, Ronald B. Leighton, because
Leighton’s wife, a lawyer, had a financial/business
relationship with Kitsap County re their risk
insurance coverage. Judge Leighton refused to
disqualify. Then, Judge Leighton, on defendants’
motion to dismiss, dismissed the case based in federal
common law claims of 11th amendment immunity,
13
lack of jurisdiction to review a state agency’s decision,
pleading deficiencies under Iqbal/Twombly, absolute
immunity, and failure to state a claim.
Scheidler appealed, arguing Judge Leighton’s
only legal avenue was to ‘remand’ those claims for
which he lacked jurisdiction. Scheidler further argued
state law prohibits dismissal, prohibits immunities,
and therefore a valid claim exists. The appellate court
(1st panel) ‘affirmed in part, reversed in part, and
remanded’ back to district court. [Appendix 1]
The remanded case was again before Judge
Leighton and the same lawyers who presented these
false and irrelevant defenses responsible for the
appeal, 2-year delay and the “abuses of discretion”
noted by the 1st panel. Scheidler again motioned to
disqualify Judge Leighton and added the “abuses of
discretion” noted by the 1st panel. Leighton refused.
Again Judge Leighton dismissed the case on
defendants motion to dismiss based in federal common
law defenses. Scheidler appealed arguing the 1st panel
already disposed of those defenses as they collide with
state law. However the 2nd panel, without any
rationale, affirmed dismissal based in federal common
law defenses that appear to invoke immunity,
pleading deficiencies under Iqbal/Twombly, or failure
14
to state a claim.
Scheidler petitioned for En banc review to
resolve the split between the 1st panel and 2nd panel
concerning the state laws governing “immunity”
“pleading standards”, “rights of action” and the
Washington State Supreme Court’s expressed
rejection of “Iqbal/Twombly” standards.
En banc review was denied 1/29/2018. Scheidler
petitions this Court exercise its fiduciary duty it has
to society to insure the integrity of our courts and its
‘officers of the court’.
VIII. ARGUMENT
1. State law must be the rule of decision in
federal courts as the US 10th amendment
provides and 28 USC 1652 demands.
Congress used the word “shall” in §1652. ‘Shall’
denotes the law is mandatory. There can be no
“discretion” involved. On the face of the 9th circuit’s
memorandums you find only the word “discretion” in
characterizing the lower courts conduct. For the 9th
circuit to convert a law that is “mandatory” to one of
“discretion” is clear proof judges are “enlarging” their
powers so as to decide the scope of their own authority
in violation of 28 USC 2072(b). “To permit branches to
15
measure their own authority would quickly subvert
the principle that state governments, while
governments of general powers, must govern by the
consent of the people as expressed by the
constitution.” Wash. State Labor Council v. Reed, 149
Wn.2d 48 (Wash. Apr. 3, 2003), Chambers concurring.
2. Civil actions are constitutionally
protected, a jury trial is an “inviolate
right”; neither can be limited or denied
by a judge.
As 28 USC 1652 ‘mandates’, and this Court
said, “the federal court enforcing a state-created right
in a diversity case is, as we said in Guaranty Trust Co.
v. York, 326 U. S. 99, 108, in substance "only another
court of the State." The federal court therefore may
not "substantially affect the enforcement of the right
as given by the State.” Bernhardt v. Polygraphic Co.
of America, 350 US 198, 203 (1956).
The controlling state law, in this case, is RCW
4.04.010, which mandates, “The common law, so far as
it is not inconsistent with the Constitution and laws of
the United States, or of the state of Washington nor
incompatible with the institutions and condition of
16
society in this state, shall be the rule of decision in all
the courts of this state.”
a. The Constitutional Role of the Jury
has been abridged by judges.
Scheidler’s civil action is against defendants
who are either Washington’s “officials, elected
officials, or employees…” (See RCW 4.92.010 and
RCW 4.96.010). “Governments are established to
protect and maintain” Scheidler’s rights (See Article
1, section 1). “[A] public officer, their servant, has no
rights whatever, so far as his possession of the office is
concerned, which may not be ignored by the people
speaking in a lawful manner.” Cudihee v. Phelps, 76
Wash. 314 (Wash. 1913).
The “lawful manner” in which the “people
speak” within the judicial branch is via a ‘jury’ (see
Article 1, section 21- a jury is an inviolate right). For
a judge to deny a jury, as in this case, renders
irrelevant the words of Article 1, section 1
“governments derive their just powers from the consent
of the governed”.
Judges who deny a jury their authority, claim
for themselves the power to “enlarge governments’
just powers’ without the consent of the governed. This
17
is prohibited by 28 USC 2072(b) and is an overt attack
on the very principles that define our society.
See also, Article 4, section 16 (judges shall not
comment nor charge the jury with respect to the facts);
RCW 4.40.060; RCW 4.44.090 (facts are for a jury);
and RCW 2.28.030 (judges cannot exceed their
statutory powers. “Because of the constitutional
nature of the right to jury trial, litigants have a
continued interest in it … Otherwise, article 1, section
21 means nothing.” Sofie v. Fibreboard Corp., 112
Wn.2d 636, 771 P.2d 711, 1989 Wash. LEXIS 42, CCH
Prod. Liab. Rep. P12.
Avery’s power to change the law is both a
question of fact and law. In this case the law is clear.
RCW 84.36.383 specifically states, “As used in RCW
84.36.381 through 84.36.389, except where the context
clearly indicates a different meaning: …(5)
"Disposable income" means …” Clearly, by the
express and unambiguous language in using the word
“means” in RCW 84.36.383, Avery’s ‘rewording’ is
unauthorized and must be decided by a jury trial.
18
b. State law controls civil actions,
pleading standards and remedies for
pleading deficiencies -- not
Iqbal/Twombly or federal rules or
federal common law.
In this case, governments’ actions that center
on their duties imposed by law and involve RCW
84.36.383 which implements a state constitutional
right -- Article 7, section 10, concerns a matter
affecting the common good. Clearly governments’
conduct concerning a constitutional right merits
Article 1, section 4 protection that shall never be
abridged. See also, Article 2, section 28(17) – civil
action not to be limited; RCW 4.32 et. seq. to RCW
4.36.240 (pleadings and remedies); RCW 4.92.010
(any person shall have a right of action).
Federal common law notions such, as
Iqbal/Twombly, res judicata, collateral estoppel
cannot abridge, or modify these laws. Furthermore,
Washington’s Supreme Court rejected adopting
Twombly and Iqbal standards of pleading in McCurry
v. Chevy Chase Bank, FSB, 169 Wn.2d 96.
For judges to deny a jury, deny or limit civil
actions, necessarily, leaves only non-civil actions as
remedies. And again, necessarily, devolves into
19
judges-judging-judges, a consequence prohibited by 28
USC 455.
c. Privileges and immunities, including
11th Amendment immunity, have been
abolished, and laws granting the same
are prohibited.
State laws prohibit granting defendants
privileges and immunities for their unauthorized or
improper administration of RCW 84.36.383. See
Article 1, sections 1, 8, 12, and 28; Article 2, sections
26 and 28(12) and (17); RCW 4.92.090 (right of action
against “officers, elected officials, employees” for any
act or omission). Judges who apply federal common
law as the means to deny a jury, dismiss civil actions
are in effect granting “immunities and privileges”
prohibited by Washington’s constitution and laws.
d. State laws regulate the legal
profession and powers of judges.
The preeminent obligation imposed upon ‘the
state and local governments, their officers, elected
officials, employees’ is expressed in Article 1, section
1, is to protect individual rights. State laws ‘regulate’
defendants conduct (including lawyers and judges –
RCW title 2) and provides Scheidler his “right of
20
action” that “shall never be abridged” or “limited.” (Id.,
RCW 4.92.010; Article 1, section 4; Article 2, section
28(17), respectively). These state laws, and those
contained in Appendix 2, are the only standards by
which defendants’ conduct and Scheidler’s right of
action shall be measured. Any other standard
“abridges, modifies or enlarges” the state’s laws
involved, and is prohibited by 28 USC 2072(b).
For the 9th Circuit courts to deny the people
their jury powers, to dismiss civil actions, to grant
“immunities”, to ignore the mandate of RCW
84.36.383 …, necessarily, devolves into judges-
judging-judges deciding to enlarge the scope of Avery’s
powers, as well as enlarging the scope of their own
authority that is limited by law.
The 9th Circuit Courts have abolished Article 1,
section 1, and take for themselves what rightfully
belongs to Scheidler and the People. Such usurpation
of powers is prohibited by both 28 USC 2072(b) and 28
USC 455(a) and (b)(4) as there are no ‘fair forums’ that
address the ‘bias’ ‘fiduciary conflicts of interest’ or
‘other conflicts of interest’ when judges violate the
laws that apply to judges.
3. The Federal Courts, on the face of their
memorandums, are in violation of the US
21
10th amendment, 28 USC 1652 and 28 USC
2072(b).
a. Count 1: Fraud upon the Court by
Officers of the Court.
The Federal Court, without any rationale,
dismissed Scheidler’s claim, for “Failure to state a
claim”, citing, Hicks v. Small, 69 F.3d 967, 969 (9th
Cir. 1995) (dismissal for failure to state a claim under
Fed. R. Civ. P. 12(b)(6).
Probable Cause: Hicks v Small is irrelevant
case law. The litigants in Hicks are not ‘bound
together’ by Washington State law as are the parties
in this case. Any application of Hicks, for that reason
alone, abridges, modifies, or enlarges the state laws
that apply and discussed in 1 and 2 above. Hicks is
inappropriate as it fails to meet the standards
imposed by RCW 4.04.010, supra.
Federal common law cannot preempt state law
because common law is not an Act of Congress as the
US 10th amendment makes clear. This Court, in
Cipollone v. Liggett Group, Inc., 505 US 504, 516
(1992), states, “the historic police powers of the States
[are] not to be superseded … unless that [is] the clear
and manifest purpose of Congress." Rice v. Santa Fe
Elevator Corp., 331 U. S. 218, 230 (1947)”. See also,
22
Estate of Stalkup v. Vancouver Clinic, Inc., PS, supra,
and Gunnells v. Healthplan Servs. Inc., supra, (…
applies the wrong law, it [Court] errs as a matter of
law.)
The appellate court in applying irrelevant
common law, in violation of the US 10th amendment,
28 USC 1652 and 28 USC 2072(b) is a fraud upon
Scheidler, the Courts and Society. “[F]raud vitiates
everything tainted by it, even to the most solemn
determinations of courts of justice”. Batey v. Batey, 35
Wn.2d 791, 215 P.2d 694, 1950 Wash. LEXIS 512
“Fraudulent misrepresentation may be effected by
half-truths calculated to deceive. A representation
literally true is actionable if used to create an
impression substantially false. 37 C. J. S. 251, Fraud,
§ 17 b. Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684,
1953 Wash. LEXIS 329.
b. Count 2: Fraud upon the Court by
Officers of the Court
The Federal Court, without any rationale,
dismissed Scheidler’s claim, alleging he “failed to
allege facts sufficient to state any plausible claim. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive
a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”
23
Probable Cause: Iqbal is irrelevant common law
for the same reasons as stated in Count 1. Therefore,
Iqbal is inappropriate under the standards of RCW
4.04.010, and is actionable under Ikeda v. Curtis,
supra.
c. Count 3: Fraud upon the Court by
Officers of the Court
The Federal Court, without any rationale, claims, “the
district court did not abuse its discretion in denying
Scheidler leave to amend because amendment would
have been futile. See U.S. ex rel. Lee v. Corinthian
Colleges, 655 F.3d 984, 995 (9th Cir. 2011)”;
U.S. ex rel. Lee v Corinthian is irrelevant common law
for the same reasons as stated in Count 1. Therefore,
Iqbal is inappropriate under the standards of RCW
4.04.010, and is actionable under Ikeda v. Curtis,
supra.
d. Count 4: Fraud upon the Court by
Officers of the Court
The Federal Court states, “The district court properly
denied Scheidler’s state tax appeal because Scheidler
failed to identify any error in the state tax agencies’
decisions. See Wash. Rev. Code §§ 34.05.570(3)
24
(circumstances under which court may grant relief
from agency decision), 84.36.383(5) (definition of
“disposable income”).
On the face of this ruling is the evidence that Judge
Leighton violated the state’s Article 4, section 16,
which ‘mandates’, “Judges shall not charge juries with
respect to matters of fact, nor comment thereon, but
shall declare the law.” Clearly Judge Leighton is both
denying the jury its powers to decide the facts, and
then Judge Leighton devotes a few pages to “comment
on the facts.”
Furthermore, defendants never answered the
complaint, but motioned only for dismissal, which
Judge Leighton granted. This begs the question, “who
argued the case”? Who presented evidence? Who
cross-examined witnesses? When was Scheidler given
his opportunity to present oral testimony? These
questions raise another constitutional violation,
Article 4, section 19, “JUDGES MAY NOT PRACTICE
LAW. No judge of a court of record shall practice law
in any court of this state during his continuance in
office.”
As in Count 1, probable cause exists for fraud by both
the district and federal courts and is actionable under
Ikeda v. Curtis, supra.
25
e. Count 5: Fraud upon the Court by
Officers of the Court
The Federal Court states, “The district court did not
abuse its discretion in denying Scheidler’s motion for
recusal of the district judge because Scheidler failed to
identify a ground for recusal. See 28 U.S.C. §§ 144,
455; Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
2008)”;
On the face of this statement it is certain judges are
deciding the facts, the laws, the rules, the ethical
obligations that apply to judges. A blatant violation of
28 USC 455(a) and (b)(4), because judges have a
“bias”, “a fiduciary conflict” and “direct interest”
concerning the facts at issue, the laws, the rules, the
ethical obligations concerning judges.
Beyond the facial violation of law, Scheidler, at the
very instance district court judge, Ronald B. Leighton,
was assigned, demanded his “disqualification”. The
basis was Judge Leighton’s wife (ex-wife), a lawyer,
was counsel to Kitsap County’s risk management re
their liability coverage. It is a financial interest in the
outcome of the litigation.
The continuing claim by judges that “Scheidler failed
to identify a ground for recusal” is false and a fraud
upon the court.
26
As in Count 1, probable cause exists for fraud and is
actionable under Ikeda v. Curtis, supra.
f. Count 6: Fraud upon the Court by
Officers of the Court
The Federal Court claims, “We reject as meritless
Scheidler’s contentions that the district court lacked
authority to decide the motions to dismiss, that
federal pleading standards are inapplicable, and that
the district court failed to comply with this court’s
prior mandate”;
Implicit in the 1st panel’s memorandum is a view
directly opposite the 2nd panel’s. In fact the 1st panel’s
memorandum leaves the state laws that apply ‘mostly’
intact. The second panel neither addresses its opposite
view, or explain why state laws are ignored.
As in Count 1, probable cause exists for fraud and is
actionable under Ikeda v. Curtis, supra.
g. Count 7: Fraud upon the Court by
Officers of the Court
The Federal Court claims “We do not consider matters
not specifically and distinctly raised and argued in the
opening brief, or arguments and allegations raised for
27
the first time on appeal. See Padgett v. Wright, 587
F.3d 983, 985 n.2 (9th Cir. 2009)”.
First, Wright is not on point in this case. Wright
concerned a summary judgment ruling, not dismissal
on the pleadings, as in this case. Wright is
inappropriate under the standards of RCW 4.04.010
Second, “de novo” review is the standard of review for
appeals of cases dismissed on the pleadings. A de novo
review is of the “whole record” not just what is argued
in a brief. Clearly the 9th circuit did not conduct a ‘de
novo’ review as they expressly stated they won’t
consider anything not found in the brief.
Third, under Washington laws, RCW 2.48.180
through RCW 2.48.230, it is the lawyer’s duty to
present ‘all facts and law’ that apply which have been
overlooked. In this case, Scheidler is pro se. It is
defendants’ lawyers who have a statutory duty to
“remedy” any substantive issue inadvertently omitted
by the opposing party. The courts have a fiduciary
duty under FRAP 46, circuit rule 46-2 and LCR 83-3,
to hold lawyers to their legal obligations.
Probable Cause: Wright is irrelevant common
law for the same reasons as stated in Count 1.
Therefore, Wright is inappropriate under the
28
standards of RCW 4.04.010, and is actionable under
Ikeda v. Curtis, supra.
h. Count 8: Official Misconduct – a gross
misdemeanor
Under Washington laws, RCW 9A.80.010 and
RCW 42.20.080, a public servant or officer who
violates any provision of law regulating their conduct
is Official misconduct and a gross misdemeanor.
Defendants are all ‘public servants’ and are
regulated by the state’s laws noted in Appendix 2,
particularly Article 1 section 1, and RCW 84.36.383 to
RCW 84.36.385. Defendants’ lawyers are ‘public
servants’ and are regulated by the state’s laws noted
in Appendix 2, particularly RCW 2.48.180 to RCW
2.48.230.
Defendant James Avery has no authority to
deceive retired/disabled homeowners from their
Article 7 section 10 rights by altering the words of a
law. The other defendants have an affirmative duty to
both protect Scheidler and to take action against
Avery’s fraud. Defendants’ lawyers have no authority
to remove a state case to federal court (forum
shopping) to seek dismissal based in 11th amendment
immunity, absolute immunity, Iqbal/Twombly,…
when Washington state waives 11th amendment
29
immunity (RCW 4.92; Article 2, section 26), and
prohibits granting immunities under Article 1,
sections 8, 12, 28; Article 2, section 28(12).
Defendants’ lawyers are seeking to abolish
Washington’s constitution and laws to aid in ‘official
misconduct’ and other more serious crimes.
Each violation of a provision of law is a gross
misdemeanor. These defendants and their lawyers
should be locked up for the rest of their life for their
betrayal of the US and Washington State
constitutions.
i. Count 9: Aiding and Abetting
Washington State was established to “protect
and maintain individual rights”. See Article 1, section
1. Defendants, their lawyers, and judges have a
common fiduciary duty, as ‘officers, elected officials or
employees’ of the state’s governments. That duty is
‘solely’ to protect Scheidler’s rights. To the contrary,
Defendants, their lawyers, and judges, have engaged
in conduct unauthorized, and may be illegal, under
both state and federal laws; and have used their
government offices to abridge or modify Washington
State’s constitution and laws affecting Scheidler’s
rights, by ‘enlarging’ their powers under the unlawful
scheme that relies upon the violations of 28 USC
455(a) and (b)(4), 28 USC 1652 and 28 USC 2072(b).
30
The principles of liability, RCW 9A.08.020, implicates
all these public servants in aiding and abetting each
other’s unlawful conduct.
4. The Federal Courts, on the face of their
memorandums, are in violation of federal
common law.
Notwithstanding the statutory violations, the
federal court judges violated federal common law. If
state law is ignored, as in this case contrary to 28 USC
1652 mandating state law rule decision in federal
court, “a trial court abuses its discretion when it
applies the wrong law. See, e.g., State v. Lord, 161
Wn.2d 276, 284, 165 P.3d 1251 (2007). “If a trial court
has tenable grounds for a decision but applies the
wrong law, it errs as a matter of law. Moreover,
whatever its stated reasons under the inapplicable
standard, these reasons are no longer reasonable
under the controlling legal standard.” Estate of
Stalkup v. Vancouver Clinic, Inc., PS, 145 Wn. App.
572 (Wash. Ct. App. 2008); "[w]hen a court
misapprehends or fails to apply the law with respect
to underlying issues, it abuses its discretion."
Gunnells v. Healthplan Servs. Inc., 348 F.3d 417, 446
(4th .2003).”
Also it is facially evident, there is a split
between appellate panels re the ‘law of the case’ that
31
center on these state law issues of first impression.
Furthermore, anyone can see from the face of every
judicial order, neither panel of the 9th Circuit has
addressed RCW 84.36.383(5) – which is the state law
at the center of this case, and the exhibits related to
the Avery’s altering this law. This Court in
Schlagenhauf v. Holder, 379 US 104, 111 (1964),
states, “the Court of Appeals should have also, under
these special circumstances, determined…new and
important problems.
IX. REASONS FOR ISSUING A SHOW CAUSE
OR IN THE ALTERNATIVE MANDAMUS
This is a Federal v State controversy created
by judicial usurpation of power – there is no forum
that is free of conflict to resolve judges-judging-judges
claiming powers they do not have.
This Court has “held that in diversity cases the
federal courts must follow the law of the State as to
burden of proof, Cities Service Co. v. Dunlap, 308 U.S.
208, as to conflict of laws, Klaxon Co. v. Stentor Co.,
110*110 313 U.S. 487, as to contributory negligence,
Palmer v. Hoffman, 318 U.S. 109, 117. And see
Sampson v. Channell, 110 F.2d 754. Erie R. Co. v.
Tompkins has been applied with an eye alert to
essentials in avoiding disregard of State law in
32
diversity cases in the federal courts. A policy so
important to our federalism must be kept free from
entanglements with analytical or terminological
niceties.” Guaranty Trust Co. v. York, 326 US 99,110
(1945); Id., Bernhardt.
The US 9th Circuit Court of Appeals, en banc
and without explanation, exceeded its statutory
jurisdiction defined by the US 10th amendment, 28
USC 1652, 28 USC 2072(b), 28 USC 455 (a) and (b)(4),
to conspire with these state public servant defendants
to ‘abridge or modify’ Washington State’s constitution
and laws by applying federal common law holdings
that have no preemptive authority over state law. This
unlawful scheme is intended to render irrelevant all
the state laws that establish the “governed-
government relationship”.
This usurpation of the state’s constitution and
laws has raised this case to a federal v state
controversy of broad and substantial public
importance. In fact President Trump was elected in
part for his promise to address judicial overreaching
and government corruption. Id. Cipollone v. Liggett,
supra. (only by an act of Congress is state law
preempted – judge made law is not an ‘Act of
Congress’)
33
This Court has supervisory powers to ensure
“the history of liberty has largely been the history of
observance of procedural safeguards.” McNabb v.
United States, 318 US 332, 347 (1943).
Forum shopping by state officials for a federal
judiciary willing to disregard, both federal and state
constitutional and statutory obligations is an attack
on our constitutions and the people’s liberties. “The
Supreme Court shall have original but not exclusive
jurisdiction of: inter alia, (2) All controversies between
the United States and a State; …” . (28 USC 1251(a)
and (b)(2).)
There are no adequate remedies to address
judicial corruption as there are no court rules
providing a fair forum established by the courts.
Violations of the US constitution and federal laws by
federal judges create the exceptional circumstances
warranting this action. Furthermore an appellate
decision that is devoid of any rationale in explaining
their violations of federal law cannot be reviewed by
this court as there is nothing to review. For this reason
a show cause order should issue.
Therefore the important issues raised and
supported by the argument, are ripe for review and
disposition under this Court‘s Original jurisdiction or
34
All Writs Act and supervisory jurisdiction. See
Hollingsworth v. Perry, -- U.S. -- 130 S.Ct. 705, 709-10
(2010). In Cheney v. United States Dist. Court for DC,
542 US 367, 380 (2004), “[O]nly exceptional
circumstances amounting to a judicial ‘usurpation of
power’ Will v. United States, 389 U.S. 90, 95, 88 S.Ct.
269, 19 L.Ed.2d 305 (1967)… or a “clear abuse of
discretion,” Bankers Life & Casualty Co. v. Holland,
346 U.S. 14379, 383, 74 S.Ct. 145, 98 L.Ed. 106
(1953), “will justify the invocation of this
extraordinary remedy,” Will, 389 U.S., at 95, 88 S
.Ct. 269.
X. CONCLUSION
This Court, as authorized under 28 USC §§
2106, 2201, 2202, must exercise its fiduciary duty and
issue the mandate, or provide, by rule, an “impartial
forum”, as 28 USC 455(a) and (b)(4) dictates, to
remedy judicial corruption that doesn’t reek with
“bias”, “fiduciary conflict” and “other conflicts of
interests” in having judges-judge-judges concerning
the laws, rules, and fiduciary duty imposed upon
officers of the court.
DECLARATION
35
I declare under penalty of perjury under the laws of
the State of Washington that the foregoing is true and
correct:
_____________ ________________________________
(Date) (Signature)
36
TABLE OF STATUTES
US CONSTITUTION:
TENTH AMENDMENT
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.
US CODE
28 U.S. Code § 455 - Disqualification of justice,
judge, or magistrate judge
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding in which his impartiality might reasonably
be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in
the matter in controversy, or a lawyer with whom he
previously practiced law served during such
association as a lawyer concerning the matter, or the
37
judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment
and in such capacity participated as counsel, adviser
or material witness concerning the proceeding or
expressed an opinion concerning the merits of the
particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or
his spouse or minor child residing in his household,
has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any
other interest that could be substantially affected by
the outcome of the proceeding;
(5) He or his spouse, or a person within the third
degree of relationship to either of them, or the spouse
of such a person:
(i) Is a party to the proceeding, or an officer, director,
or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that
could be substantially affected by the outcome of the
proceeding;
(iv) Is to the judge’s knowledge likely to be a material
witness in the proceeding.
(c) A judge should inform himself about his personal
and fiduciary financial interests, and make a
reasonable effort to inform himself about the personal
financial interests of his spouse and minor children
residing in his household.
38
(d) For the purposes of this section the following words
or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate
review, or other stages of litigation;
(2) the degree of relationship is calculated according
to the civil law system;
(3) “fiduciary” includes such relationships as executor,
administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or
equitable interest, however small, or a relationship as
director, adviser, or other active participant in the
affairs of a party, except that:
(i) Ownership in a mutual or common investment fund
that holds securities is not a “financial interest” in
such securities unless the judge participates in the
management of the fund;
(ii) An office in an educational, religious, charitable,
fraternal, or civic organization is not a “financial
interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a
mutual insurance company, of a depositor in a mutual
savings association, or a similar proprietary interest,
is a “financial interest” in the organization only if the
outcome of the proceeding could substantially affect
the value of the interest;
(iv) Ownership of government securities is a “financial
interest” in the issuer only if the outcome of the
proceeding could substantially affect the value of the
securities.
39
(e) No justice, judge, or magistrate judge shall accept
from the parties to the proceeding a waiver of any
ground for disqualification enumerated in subsection
(b). Where the ground for disqualification arises only
under subsection (a), waiver may be accepted provided
it is preceded by a full disclosure on the record of the
basis for disqualification.
(f) Notwithstanding the preceding provisions of this
section, if any justice, judge, magistrate judge, or
bankruptcy judge to whom a matter has been assigned
would be disqualified, after substantial judicial time
has been devoted to the matter, because of the
appearance or discovery, after the matter was
assigned to him or her, that he or she individually or
as a fiduciary, or his or her spouse or minor child
residing in his or her household, has a financial
interest in a party (other than an interest that could
be substantially affected by the outcome),
disqualification is not required if the justice, judge,
magistrate judge, bankruptcy judge, spouse or minor
child, as the case may be, divests himself or herself of
the interest that provides the grounds for the
disqualification.
(June 25, 1948, ch. 646, 62 Stat. 908; Pub. L. 93–512,
§ 1, Dec. 5, 1974, 88 Stat. 1609; Pub. L. 95–598, title
II, § 214(a), (b), Nov. 6, 1978, 92 Stat. 2661; Pub. L.
100–702, title X, § 1007, Nov. 19, 1988, 102 Stat.
4667; Pub. L. 101–650, title III, § 321, Dec. 1, 1990,
104 Stat. 5117.)
40
28 U.S. Code § 1652 - State laws as rules of
decision
The laws of the several states, except where the
Constitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be
regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.
(June 25, 1948, ch. 646, 62 Stat. 944.)
28 U.S. Code § 2072 - Rules of procedure and
evidence; power to prescribe
(a) The Supreme Court shall have the power to
prescribe general rules of practice and procedure and
rules of evidence for cases in the United States district
courts (including proceedings before magistrate
judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any
substantive right. All laws in conflict with such rules
shall be of no further force or effect after such rules
have taken effect.
(c) Such rules may define when a ruling of a district
court is final for the purposes of appeal under section
1291 of this title.
(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19,
1988, 102 Stat. 4648; amended Pub. L. 101–650, title
III, §§ 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.)
28 U.S. Code § 2106 - Determination
41
The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court
lawfully brought before it for review, and may remand
the cause and direct the entry of such appropriate
judgment, decree, or order, or require such further
proceedings to be had as may be just under the
circumstances.
(June 25, 1948, ch. 646, 62 Stat. 963.)
28 U.S. Code § 2201 - Creation of remedy
(a) In a case of actual controversy within its
jurisdiction, except with respect to Federal taxes other
than actions brought under section 7428 of the
Internal Revenue Code of 1986, a proceeding under
section 505 or 1146 of title 11, or in any civil action
involving an antidumping or countervailing duty
proceeding regarding a class or kind of merchandise of
a free trade area country (as defined in section
516A(f)(10) of the Tariff Act of 1930), as determined
by the administering authority, any court of the
United States, upon the filing of an appropriate
pleading, may declare the rights and other legal
relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be
reviewable as such.
42
(b) For limitations on actions brought with respect to
drug patents see section 505 or 512 of the Federal
Food, Drug, and Cosmetic Act, or section 351 of the
Public Health Service Act.
28 U.S. Code § 2202 - Further relief
Further necessary or proper relief based on a
declaratory judgment or decree may be granted, after
reasonable notice and hearing, against any adverse
party whose rights have been determined by such
judgment.
28 U.S. Code § 2403 - Intervention by United States
or a State; constitutional question
(a) In any action, suit or proceeding in a court of the
United States to which the United States or any
agency, officer or employee thereof is not a party,
wherein the constitutionality of any Act of Congress
affecting the public interest is drawn in question, the
court shall certify such fact to the Attorney General,
and shall permit the United States to intervene for
presentation of evidence, if evidence is otherwise
admissible in the case, and for argument on the
question of constitutionality. The United States shall,
subject to the applicable provisions of law, have all the
rights of a party and be subject to all liabilities of a
party as to court costs to the extent necessary for a
proper presentation of the facts and law relating to the
question of constitutionality.
43
(b) In any action, suit, or proceeding in a court of the
United States to which a State or any agency, officer,
or employee thereof is not a party, wherein the
constitutionality of any statute of that State affecting
the public interest is drawn in question, the court
shall certify such fact to the attorney general of the
State, and shall permit the State to intervene for
presentation of evidence, if evidence is otherwise
admissible in the case, and for argument on the
question of constitutionality. The State shall, subject
to the applicable provisions of law, have all the rights
of a party and be subject to all liabilities of a party as
to court costs to the extent necessary for a proper
presentation of the facts and law relating to the
question of constitutionality.
(June 25, 1948, ch. 646, 62 Stat. 971; Pub. L. 94–381,
§ 5, Aug. 12, 1976, 90 Stat. 1120.)
RULES OF FEDERAL COURTS
Federal Rules of Civil Procedure: Rule 8(b)(6)
Effect of Failing to Deny. An allegation—other than
one relating to the amount of damages—is admitted if
a responsive pleading is required and the allegation is
not denied. If a responsive pleading is not required, an
allegation is considered denied or avoided.
FRAP 46. Attorneys
44
(a) Admission to the Bar.
(1) Eligibility. An attorney is eligible for admission to
the bar of a court of appeals if that attorney is of good
moral and professional character and is admitted to
practice before the Supreme Court of the United
States, the highest court of a state, another United
States court of appeals, or a United States district
court (including the district courts for Guam, the
Northern Mariana Islands, and the Virgin Islands).
(2) Application. An applicant must file an application
for admission, on a form approved by the court that
contains the applicant’s personal statement showing
eligibility for membership. The applicant must
subscribe to the following oath or affirmation:
“I, ________________, do solemnly swear [or affirm]
that I will conduct myself as an attorney and
counselor of this court, uprightly and according to law;
and that I will support the Constitution of the United
States.”
(3) Admission Procedures. On written or oral motion
of a member of the court’s bar, the court will act on the
application. An applicant may be admitted by oral
motion in open court. But, unless the court orders
otherwise, an applicant need not appear before the
court to be admitted. Upon admission, an applicant
must pay the clerk the fee prescribed by local rule or
court order.
(b)Suspension or Disbarment.
45
(1) Standard. A member of the court’s bar is subject to
suspension or disbarment by the court if the member:
(A) has been suspended or disbarred from practice in
any other court; or
(B) is guilty of conduct unbecoming a member of the
court’s bar.
(2) Procedure. The member must be given an
opportunity to show good cause, within the time
prescribed by the court, why the member should not
be suspended or disbarred.
(3) Order. The court must enter an appropriate order
after the member responds and a hearing is held, if
requested, or after the time prescribed for a response
expires, if no response is made.
(c) Discipline. A court of appeals may discipline an
attorney who practices before it for conduct
unbecoming a member of the bar or for failure to
comply with any court rule. First, however, the court
must afford the attorney reasonable notice, an
opportunity to show cause to the contrary, and, if
requested, a hearing.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24,
1998, eff. Dec. 1, 1998.)
Circuit Rule 46-2. Attorney Suspension,
Disbarment or Other Discipline
(a) Conduct Subject to Discipline. This Court may
impose discipline on any attorney practicing before
this Court who engages in conduct violating applicable
46
rules of professional conduct, or who fails to comply
with rules or orders of this Court. The discipline may
consist of disbarment, suspension, reprimand,
counseling, education, a monetary penalty,
restitution, or any other action that the Court deems
appropriate and just.
(b) Initiation of Disciplinary Proceedings Based on
Conduct Before This Court. The Chief Judge or a
panel of judges may initiate disciplinary proceedings
based on conduct before this Court by issuing an order
to show cause under this rule that identifies the basis
for imposing discipline.
(c) Reciprocal Discipline. An attorney who practices
before this Court shall provide the Clerk of this Court
with a copy of any order or other official notification
that the attorney has been subjected to suspension or
disbarment in another jurisdiction. When this Court
learns that a member of the bar of this Court has been
disbarred or suspended from the practice of law by any
court or other competent authority or resigns during
the pendency of disciplinary proceedings, the Clerk
shall issue an order to show cause why the attorney
should not be suspended or disbarred from practice in
this Court.
(d) Response. An attorney against whom an order to
show cause is issued shall have 28 days from the date
of the order in which to file a response. The attorney
may include in the response a request for a hearing
pursuant to FRAP 46 (c). The failure to request a
47
hearing will be deemed a waiver of any right to a
hearing. The failure to file a timely response may
result in the imposition of discipline without further
notice. (Rev. 12/1/09)
(e) Hearings on Disciplinary Charges. If requested,
the Court will hold a hearing on the disciplinary
charges, at which the attorney may be represented by
counsel. In a matter based on an order to show cause
why reciprocal discipline should not be imposed, an
appellate commissioner will conduct the hearing. In a
matter based on an order to show cause based on
conduct before this Court, the Court may refer the
matter to an appellate commissioner or other judicial
officer to conduct the hearing. In appropriate cases,
the Court may appoint an attorney to prosecute
charges of misconduct. (Rev. 1/1/12)
(f) Report and Recommendation. If the matter is
referred to an appellate commissioner or other judicial
officer, that judicial officer shall prepare a report and
recommendation. The report and recommendation
shall be served on the attorney, and the attorney shall
have 21 days from the date of the order within which
to file a response. The report and recommendation
together with any response shall be presented to a
three-judge panel. (Rev. 12/1/09)
(g) Final Disciplinary Action. The final order in a
disciplinary proceeding shall be issued by a three-
judge panel. If the Court disbars or suspends the
attorney, a copy of the final order shall be furnished to
48
the appropriate courts and state disciplinary agencies.
If the order imposes a sanction of $1,000 or more, the
Court may furnish a copy of the order to the
appropriate courts and state disciplinary agencies. If
a copy of the final order is distributed to other courts
or state disciplinary agencies, the order will inform
the attorney of that distribution.
(h) Reinstatement. A suspended or disbarred attorney
may file a petition for reinstatement with the Clerk.
The petition shall contain a concise statement of the
circumstances of the disciplinary proceedings, the
discipline imposed by this Court, and the grounds that
justify reinstatement of the attorney.
(i) Monetary Sanctions. Nothing in the rule limits the
Court’s power to impose monetary sanctions as
authorized under other existing authority. (New
1/1/02)
LCR 83.3 STANDARDS OF PROFESSIONAL
CONDUCT; CONTINUING ELIGIBILITY TO
PRACTICE; ATTORNEY DISCIPLINE
(a) Standards of Professional Conduct
In order to maintain the effective administration of
justice and the integrity of the court, attorneys
appearing in this district shall be familiar with and
comply with the following materials ("Materials"):
(1) The local rules of this district, including the local
rules that address attorney conduct
and discipline;
49
(2) The Washington Rules of Professional Conduct
(the "RPC"), as promulgated,
amended, and interpreted by the Washington State
Supreme Court, unless such amendments or additions
are specifically disapproved by the court, and the
decisions of
any court applicable thereto;
(3) The Federal Rules of Civil and Criminal Procedure;
(4) The General Orders of the court.
In applying and construing these Materials, the court
may also consider the published decisions and formal
and informal ethics opinions of the Washington State
Bar Association, the Model Rules of Professional
Conduct of the American Bar Association and Ethics
Opinions issued pursuant to those Model Rules, and
the decisional law of the state and federal courts.
WASHINGTON STATE CONSTITUTION:
ARTICLE 1, SECTION 1 POLITICAL POWER. 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.
ARTICLE 1, SECTION 4 RIGHT OF PETITION
AND ASSEMBLAGE. The right of petition and of the
people peaceably to assemble for the common good
shall never be abridged.
50
ARTICLE 1, SECTION 8 IRREVOCABLE
PRIVILEGE, FRANCHISE OR IMMUNITY
PROHIBITED. No law granting irrevocably any
privilege, franchise or immunity, shall be passed by
the legislature.
ARTICLE 1, SECTION 12 SPECIAL
PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class
of citizens, or corporation other than municipal,
privileges or immunities which upon the same terms
shall not equally belong to all citizens, or corporations.
ARTICLE 1, SECTION 21 TRIAL BY JURY. The
right of trial by jury shall remain inviolate, but the
legislature may provide for a jury of any number less
than twelve in courts not of record, and for a verdict
by nine or more jurors in civil cases in any court of
record, and for waiving of the jury in civil cases where
the consent of the parties interested is given thereto.
ARTICLE 1, SECTION 28 HEREDITARY
PRIVILEGES ABOLISHED. No hereditary
emoluments, privileges, or powers, shall be granted or
conferred in this state.
ARTICLE 2, SECTION 26 SUITS AGAINST THE
STATE. The legislature shall direct by law, in what
51
manner, and in what courts, suits may be brought
against the state.
ARTICLE 2, SECTION 28 SPECIAL
LEGISLATION. The legislature is prohibited from
enacting any private or special laws in the following
cases: …
6. For granting corporate powers or privileges.
12. Legalizing, except as against the state, the
unauthorized or invalid act of any officer…
17. For limitation of civil or criminal actions.
ARTICLE 4, SECTION 16 CHARGING JURIES.
Judges shall not charge juries with respect to matters
of fact, nor comment thereon, but shall declare the
law.
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
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limited to, the limiting of the relief to those property
owners below a specific level of income and those
fulfilling certain minimum residential requirements.
[AMENDMENT 47, 1965 ex.s. House Joint Resolution
No. 7, p 2821. Approved November 8, 1966.]
WASHINGTON STATE STATUTES
RCW 2.28.030 Judicial officer defined—When
disqualified.
A judicial officer is a person authorized to act as a
judge in a court of justice. Such officer shall not act as
such in a court of which he or she is a member in any
of the following cases:
(1) In an action, suit, or proceeding to which he or she
is a party, or in which he or she is directly interested.
(2) When he or she was not present and sitting as a
member of the court at the hearing of a matter
submitted for its decision.
(3) When he or she is related to either party by
consanguinity or affinity within the third degree. The
degree shall be ascertained and computed by
ascending from the judge to the common ancestor and
descending to the party, counting a degree for each
person in both lines, including the judge and party and
excluding the common ancestor.
(4) When he or she has been attorney in the action,
suit, or proceeding in question for either party; but
this section does not apply to an application to change
53
the place of trial, or the regulation of the order of
business in court.
In the cases specified in subsections (3) and (4) of this
section, the disqualification may be waived by the
parties, and except in the supreme court and the court
of appeals shall be deemed to be waived unless an
application for a change of the place of trial be made
as provided by law.
[ 2011 c 336 § 39; 1971 c 81 § 11; 1895 c 39 § 1; 1891 c
54 § 3; RRS § 54.]
RCW 2.28.050 Judge distinguished from court. A
judge may exercise out of court all the powers
expressly conferred upon a judge as
contradistinguished from a court and not otherwise.
RCW 2.28.060Judicial officers—Powers.
Every judicial officer has power:
(1) To preserve and enforce order in his or her
immediate presence and in the proceedings before him
or her, when he or she is engaged in the performance
of a duty imposed upon him or her by law;
(2) To compel obedience to his or her lawful orders as
provided by law;
(3) To compel the attendance of persons to testify in a
proceeding pending before him or her, in the cases and
manner provided by law;
(4) To administer oaths to persons in a proceeding
pending before him or her, and in all other cases
54
where it may be necessary in the exercise of his or her
powers and the performance of his or her duties.
RCW 2.48.180
Definitions—Unlawful practice a crime—Cause
for discipline—Unprofessional conduct—
Defense—Injunction—Remedies—Costs—
Attorneys' fees—Time limit for action.
(1) As used in this section:
(a) "Legal provider" means an active member in good
standing of the state bar, and any other person
authorized by the Washington state supreme court to
engage in full or limited practice of law;
(b) "Nonlawyer" means a person to whom the
Washington supreme court has granted a limited
authorization to practice law but who practices law
outside that authorization, and a person who is not an
active member in good standing of the state bar,
including persons who are disbarred or suspended
from membership;
(c) "Ownership interest" means the right to control the
affairs of a business, or the right to share in the profits
of a business, and includes a loan to the business when
the interest on the loan is based upon the income of
the business or the loan carries more than a
commercially reasonable rate of interest.
(2) The following constitutes unlawful practice of law:
55
(a) A nonlawyer practices law, or holds himself or
herself out as entitled to practice law;
(b) A legal provider holds an investment or ownership
interest in a business primarily engaged in the
practice of law, knowing that a nonlawyer holds an
investment or ownership interest in the business;
(c) A nonlawyer knowingly holds an investment or
ownership interest in a business primarily engaged in
the practice of law;
(d) A legal provider works for a business that is
primarily engaged in the practice of law, knowing that
a nonlawyer holds an investment or ownership
interest in the business; or
(e) A nonlawyer shares legal fees with a legal provider.
(3)(a) Unlawful practice of law is a crime. A single
violation of this section is a gross misdemeanor.
(b) Each subsequent violation of this section, whether
alleged in the same or in subsequent prosecutions, is
a class C felony punishable according to chapter 9A.20
RCW.
(4) Nothing contained in this section affects the power
of the courts to grant injunctive or other equitable
relief or to punish as for contempt.
(5) Whenever a legal provider or a person licensed by
the state in a business or profession is convicted,
enjoined, or found liable for damages or a civil penalty
or other equitable relief under this section, the
56
plaintiff's attorney shall provide written notification
of the judgment to the appropriate regulatory or
disciplinary body or agency.
(6) A violation of this section is cause for discipline and
constitutes unprofessional conduct that could result in
any regulatory penalty provided by law, including
refusal, revocation, or suspension of a business or
professional license, or right or admission to practice.
Conduct that constitutes a violation of this section is
unprofessional conduct in violation of RCW
18.130.180.
(7) In a proceeding under this section it is a defense if
proven by the defendant by a preponderance of the
evidence that, at the time of the offense, the conduct
alleged was authorized by the rules of professional
conduct or the admission to practice rules, or
Washington business and professions licensing
statutes or rules.
(8) Independent of authority granted to the attorney
general, the prosecuting attorney may petition the
superior court for an injunction against a person who
has violated this chapter. Remedies in an injunctive
action brought by a prosecuting attorney are limited
to an order enjoining, restraining, or preventing the
doing of any act or practice that constitutes a violation
of this chapter and imposing a civil penalty of up to
five thousand dollars for each violation. The
prevailing party in the action may, in the discretion of
the court, recover its reasonable investigative costs
57
and the costs of the action including a reasonable
attorney's fee. The degree of proof required in an
action brought under this subsection is a
preponderance of the evidence. An action under this
subsection must be brought within three years after
the violation of this chapter occurred.
[ 2003 c 53 § 2; 2001 c 310 § 2. Prior: 1995 c 285 § 26;
1989 c 117 § 13; 1933 c 94 § 14; RRS § 138-14.]
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 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;
58
I will maintain the confidence and preserve inviolate
the secrets of my client, and will accept no
compensation in connection with his or her business
except from him or her or with his or her 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 person's cause for lucre or malice. So help
me God.
[ 2013 c 23 § 1; 1921 c 126 § 12; RRS § 139-12. Prior:
1917 c 115 § 14.]
RCW 2.48.230 Code of ethics.
The code of ethics of the American Bar Association
shall be the standard of ethics for the members of the
bar of this state.
RCW 4.04.010 Extent to which common law
prevails.
The common law, so far as it is not inconsistent with
the Constitution and laws of the United States, or of
the state of Washington nor incompatible with the
institutions and condition of society in this state, shall
be the rule of decision in all the courts of this state.
59
[1891 c 17 § 1; Code 1881 § 1; 1877 p 3 § 1; 1862 p 83
§ 1; RRS § 143. Formerly RCW 1.12.030.]
RCW 4.32.250 Effect of minor defects in
pleading.
A notice or other paper is valid and effectual though
the title of the action in which it is made is omitted, or
it is defective either in respect to the court or parties,
if it intelligently refers to such action or proceedings;
and in furtherance of justice upon proper terms, any
other defect or error in any notice or other paper or
proceeding may be amended by the court, and any
mischance, omission or defect relieved within one year
thereafter; and the court may enlarge or extend the
time, for good cause shown, within which by statute
any act is to be done, proceeding had or taken, notice
or paper filed or served, or may, on such terms as are
just, permit the same to be done or supplied after the
time therefor has expired.
[ 1988 c 202 § 2; 1893 c 127 § 24; RRS § 250.]
RCW 4.36.070 Pleading judgments.
In pleading a judgment or other determination of a
court or office of special jurisdiction, it shall not be
necessary to state the facts conferring jurisdiction, but
such judgment or determination may be stated to have
been duly given or made. If such allegation be
controverted, the party pleading shall be bound to
establish on the trial the facts conferring jurisdiction.
60
RCW 4.36.170 Material allegation defined.
A material allegation in a pleading is one essential to
the claim or defense, and which could not be stricken
from the pleading without leaving it insufficient.
[Code 1881 § 104; 1877 p 22 § 104; 1854 p 143 § 65;
RRS § 298.]
RCW 4.36.240 Harmless error disregarded.
The court shall, in every stage of an action, disregard
any error or defect in pleadings or proceedings which
shall not affect the substantial rights of the adverse
party, and no judgment shall be reversed or affected
by reason of such error or defect.
RCW 4.40.060 Trial of certain issues of fact—
Jury.
An issue of fact, in an action for the recovery of money
only, or of specific real or personal property shall be
tried by a jury, unless a jury is waived, as provided by
law, or a reference ordered, as provided by statute
relating to referees.
[ 1893 c 127 § 33; Code 1881 § 204; 1877 p 42 § 208;
1873 p 52 § 206; 1869 p 50 § 208; 1854 p 164 § 183;
RRS § 314.]
RCW 4.44.090 Questions of fact for jury.
61
All questions of fact other than those mentioned in
RCW 4.44.080, shall be decided by the jury, and all
evidence thereon addressed to them.
[Code 1881 § 224; 1877 p 47 § 228; 1869 p 56 § 228;
RRS § 343.]
RCW 4.48.010 Reference by consent—Right to
jury trial—Referee may not preside—Parties'
written consent constitutes waiver of right.
The court shall order all or any of the issues in a civil
action, whether of fact or law, or both, referred to a
referee upon the written consent of the parties which
is filed with the clerk. Any party shall have the right
in an action at law, upon an issue of fact, to demand a
trial by jury. No referee appointed under this chapter
may preside over a jury trial. The written consent of
the parties constitutes a waiver of the right of trial by
jury by any party having the right.
[ 1984 c 258 § 512; Code 1881 § 248; 1854 p 168 § 206;
RRS § 369. Formerly RCW 4.44.100, part, and
4.48.010.]
RCW 4.92.010 Where brought—Change of venue.
Any person or corporation having any claim against
the state of Washington shall have a right of action
against the state in the superior court.
The venue for such actions shall be as follows:
(1) The county of the residence or principal place of
business of one or more of the plaintiffs;
62
(2) The county where the cause of action arose;
(3) The county in which the real property that is the
subject of the action is situated;
(4) The county where the action may be properly
commenced by reason of the joinder of an additional
defendant; or
(5) Thurston county.
Actions shall be subject to change of venue in
accordance with statute, rules of court, and the
common law as the same now exist or may hereafter
be amended, adopted, or altered.
Actions shall be tried in the county in which they have
been commenced in the absence of a seasonable
motion by or in behalf of the state to change the venue
of the action.
RCW 4.92.090 Tortious conduct of state—
Liability for damages.
The state of Washington, whether acting in its
governmental or proprietary capacity, shall be liable
for damages arising out of its tortious conduct to the
same extent as if it were a private person or
corporation.
RCW 4.96.010 Tortious conduct of local
governmental entities—Liability for damages.
(1) All local governmental entities, whether acting in
a governmental or proprietary capacity, shall be liable
63
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.
(2) Unless the context clearly requires otherwise, for
the purposes of this chapter, "local governmental
entity" means a county, city, town, special district,
municipal corporation as defined in RCW 39.50.010,
quasi-municipal corporation, any joint municipal
utility services authority, any entity created by public
agencies under RCW 39.34.030, or public hospital.
(3) For the purposes of this chapter, "volunteer" is
defined according to RCW 51.12.035.
RCW 9A.08.020 Liability for conduct of
another—Complicity.
(1) A person is guilty of a crime if it is committed by
the conduct of another person for which he or she is
legally accountable.
(2) A person is legally accountable for the conduct of
another person when:
64
(a) Acting with the kind of culpability that is sufficient
for the commission of the crime, he or she causes an
innocent or irresponsible person to engage in such
conduct; or
(b) He or she is made accountable for the conduct of
such other person by this title or by the law defining
the crime; or
(c) He or she is an accomplice of such other person in
the commission of the crime.
(3) A person is an accomplice of another person in the
commission of a crime if:
(a) With knowledge that it will promote or facilitate
the commission of the crime, he or she:
(i) Solicits, commands, encourages, or requests such
other person to commit it; or
(ii) Aids or agrees to aid such other person in planning
or committing it; or
(b) His or her conduct is expressly declared by law to
establish his or her complicity.
(4) A person who is legally incapable of committing a
particular crime himself or herself may be guilty
thereof if it is committed by the conduct of another
person for which he or she is legally accountable,
unless such liability is inconsistent with the purpose
of the provision establishing his or her incapacity.
(5) Unless otherwise provided by this title or by the
law defining the crime, a person is not an accomplice
in a crime committed by another person if:
(a) He or she is a victim of that crime; or
65
(b) He or she terminates his or her complicity prior to
the commission of the crime, and either gives timely
warning to the law enforcement authorities or
otherwise makes a good faith effort to prevent the
commission of the crime.
(6) A person legally accountable for the conduct of
another person may be convicted on proof of the
commission of the crime and of his or her complicity
therein, though the person claimed to have committed
the crime has not been prosecuted or convicted or has
been convicted of a different crime or degree of crime
or has an immunity to prosecution or conviction or has
been acquitted.
[ 2011 c 336 § 351; 1975-'76 2nd ex.s. c 38 § 1; 1975 1st
ex.s. c 260 § 9A.08.020.]
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.
(2) Official misconduct is a gross misdemeanor.
[ 2011 c 336 § 408; 1975-'76 2nd ex.s. c 38 § 17; 1975
1st ex.s. c 260 § 9A.80.010.]
RCW 42.20.080 Other violations by officers.
66
Every officer or other person mentioned in RCW
42.20.070, who shall willfully disobey any provision of
law regulating his or her official conduct in cases other
than those specified in said section, shall be guilty of
a gross misdemeanor.
[ 2012 c 117 § 116; 1909 c 249 § 318; RRS § 2570.]
RCW 84.36.383 Residences—Definitions.
As used in RCW 84.36.381 through 84.36.389, except
where the context clearly indicates a different
meaning:
(1) The term "residence" means a single-family
dwelling unit whether such unit be separate or part of
a multiunit dwelling, including the land on which such
dwelling stands not to exceed one acre, except that a
residence includes any additional property up to a
total of five acres that comprises the residential parcel
if this larger parcel size is required under land use
regulations. The term also includes a share ownership
in a cooperative housing association, corporation, or
partnership if the person claiming exemption can
establish that his or her share represents the specific
unit or portion of such structure in which he or she
resides. The term also includes a single-family
dwelling situated upon lands the fee of which is vested
in the United States or any instrumentality thereof
including an Indian tribe or in the state of
Washington, and notwithstanding the provisions of
67
RCW 84.04.080 and 84.04.090, such a residence is
deemed real property.
(2) The term "real property" also includes a mobile
home which has substantially lost its identity as a
mobile unit by virtue of its being fixed in location upon
land owned or leased by the owner of the mobile home
and placed on a foundation (posts or blocks) with fixed
pipe, connections with sewer, water, or other utilities.
A mobile home located on land leased by the owner of
the mobile home is subject, for tax billing, payment,
and collection purposes, only to the personal property
provisions of chapter 84.56 RCW and RCW 84.60.040.
(3) "Department" means the state department of
revenue.
(4) "Combined disposable income" means the
disposable income of the person claiming the
exemption, plus the disposable income of his or her
spouse or domestic partner, and the disposable income
of each cotenant occupying the residence for the
assessment year, less amounts paid by the person
claiming the exemption or his or her spouse or
domestic partner during the assessment year for:
(a) Drugs supplied by prescription of a medical
practitioner authorized by the laws of this state or
another jurisdiction to issue prescriptions;
(b) The treatment or care of either person received in
the home or in a nursing home, assisted living facility,
or adult family home; and
68
(c) Health care insurance premiums for medicare
under Title XVIII of the social security act.
(5) "Disposable income" means adjusted gross income
as defined in the federal internal revenue code, as
amended prior to January 1, 1989, or such subsequent
date as the director may provide by rule consistent
with the purpose of this section, plus all of the
following items to the extent they are not included in
or have been deducted from adjusted gross income:
(a) Capital gains, other than gain excluded from
income under section 121 of the federal internal
revenue code to the extent it is reinvested in a new
principal residence;
(b) Amounts deducted for loss;
(c) Amounts deducted for depreciation;
(d) Pension and annuity receipts;
(e) Military pay and benefits other than attendant-
care and medical-aid payments;
(f) Veterans benefits, other than:
(i) Attendant-care payments;
(ii) Medical-aid payments;
(iii) Disability compensation, as defined in Title 38,
part 3, section 3.4 of the code of federal regulations, as
of January 1, 2008; and
(iv) Dependency and indemnity compensation, as
defined in Title 38, part 3, section 3.5 of the code of
federal regulations, as of January 1, 2008;
69
(g) Federal social security act and railroad retirement
benefits;
(h) Dividend receipts; and
(i) Interest received on state and municipal bonds.
(6) "Cotenant" means a person who resides with the
person claiming the exemption and who has an
ownership interest in the residence.
(7) "Disability" has the same meaning as provided in
42 U.S.C. Sec. 423(d)(1)(A) as amended prior to
January 1, 2005, or such subsequent date as the
department may provide by rule consistent with the
purpose of this section.
[ 2012 c 10 § 74; 2010 c 106 § 307. Prior: 2008 c 182 §
1; 2008 c 6 § 709; 2006 c 62 § 1; 2004 c 270 § 2; 1999 c
358 § 18; 1995 1st sp.s. c 8 § 2; 1994 sp.s. c 8 § 2; 1991
c 213 § 4; 1991 c 219 § 1; 1989 c 379 § 6; 1987 c 155 §
2; 1985 c 395 § 3; 1983 1st ex.s. c 11 § 4; 1980 c 185 §
5; 1979 ex.s. c 214 § 2; 1975 1st ex.s. c 291 § 15; 1974
ex.s. c 182 § 2.]
RCW 84.36.385 Residences—Claim for
exemption—Forms—Change of status—
Publication and notice of qualifications and
manner of making claims.
(1) A claim for exemption under RCW 84.36.381 as
now or hereafter amended, may be made and filed at
any time during the year for exemption from taxes
70
payable the following year and thereafter and solely
upon forms as prescribed and furnished by the
department of revenue. However, an exemption from
tax under RCW 84.36.381 continues for no more than
six years unless a renewal application is filed as
provided in subsection (3) of this section.
(2) A person granted an exemption under RCW
84.36.381 must inform the county assessor of any
change in status affecting the person's entitlement to
the exemption on forms prescribed and furnished by
the department of revenue.
(3) Each person exempt from taxes under RCW
84.36.381 in 1993 and thereafter, must file with the
county assessor a renewal application not later than
December 31 of the year the assessor notifies such
person of the requirement to file the renewal
application. Renewal applications must be on forms
prescribed and furnished by the department of
revenue.
(4) At least once every six years, the county assessor
must notify those persons receiving an exemption
from taxes under RCW 84.36.381 of the requirement
to file a renewal application. The county assessor may
also require a renewal application following an
amendment of the income requirements set forth in
RCW 84.36.381.
(5) If the assessor finds that the applicant does not
meet the qualifications as set forth in RCW 84.36.381,
as now or hereafter amended, the claim or exemption
71
must be denied but such denial is subject to appeal
under the provisions of RCW 84.48.010 and in
accordance with the provisions of RCW 84.40.038. If
the applicant had received exemption in prior years
based on erroneous information, the taxes must be
collected subject to penalties as provided in RCW
84.40.130 for a period of not to exceed five years.
(6) The department and each local assessor is hereby
directed to publicize the qualifications and manner of
making claims under RCW 84.36.381 through
84.36.389, through communications media, including
such paid advertisements or notices as it deems
appropriate. Notice of the qualifications, method of
making applications, the penalties for not reporting a
change in status, and availability of further
information must be included on or with property tax
statements and revaluation notices for all residential
property including mobile homes, except rental
properties.
[ 2011 c 174 § 106; 2010 c 106 § 308; 2001 c 185 § 8;
1992 c 206 § 13; 1988 c 222 § 10; 1983 1st ex.s. c 11 §
6; 1983 1st ex.s. c 11 § 3; 1979 ex.s. c 214 § 3; 1977 ex.s.
c 268 § 2; 1974 ex.s. c 182 § 3.]