Petition for Writ of Certiorari — Haley v. Michels (No. 08-692)

Lv

08-692 SEP 30 2008

——————_——.- ---_

—_— a =

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

JEFFREY HALEY, an individual citizen,

Petitioner,

JAN MICHELS, ANNE SEIDEL,

and JONATHAN BURKE,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

+

JEFFREY T. HALEY

13434 SE 27th Place

Bellevue, WA 98005

425-451-9876

|

|

QUESTIONS PRESENTED FOR REVIEW

1. Does the doctrine of separation of powers prohibit

a state court from taking property from a citizen to

fund its administrative activities without authoriza-

tion from the state legislature?

2. Is a three day delinquency in filing a notice of

appeal “excusable neglect” where the notice of appeal

was timely mailed to the district court clerk but lost

in the mail, yet copies mailed at the same time were

timely received by opposing counsel and the court of

appeals, and a replacement was received by the

district court three days after the deadline, and

where the district court implicitly allowed an exten-

sion of time by treating the replacement as timely

filed?

i

LIST OF PARTIES

Plaintiff: Jeffrey T. Haley, former attorney at law

in Washington state

Defendants: Jan Michels, Anne Seidel, and Jona-

than Burke, employees of the Washington state

courts via its agency, the Washington State Bar

Association

li

TABLE OF CONTENTS

Page

ca csepemnasibtensintiinn 1

JURISDICTIONAL STATEMENT ......................... 1

CONSTITUTIONAL PROVISION AT ISSUE....... 2

STATEMENT OF PROCEDURAL HISTORY ....... 2

EEE, COE BONE EID crcncesccocsccssevsssesesevccsosesoces 4

eo si sondciedaminnbessoncs 9

Sub-Issues Presented for Review.......................0+++ 9

1. The federal district courts have jurisdic-

tion under 42 U.S.C. § 1983 to enjoin offi-

cers of state courts from violating the US

Constitution by taking property of a for-

mer attorney at law to fund their opera-

tions without authority from the state

RE ichtciicsnticbibsinpiicaiepapieseicnbinntisitiesie 11

2. The due process clause of the US Constitu-

tion requires that state courts comply with

state constitutional limitations on powers

of branches of government and obtain au-

thorization from the state legislature be-

fore they take property from citizens to

I ee IE vniittnitcsicencccvercciasncssaniocees 15

2A. The doctrine of separation of powers

places limits on the legislative func-

tions that can be exercised by the judi-

ciary and those limits have been

LEE EES eae anehe ea Oe 17

2B. Hypothetical cases......................cceeceeeeee 24

iv

TABLE OF CONTENTS -— Continued

Page

3. A former attorney at law who joined the

state bar association is not a special class

of citizen from whom the bar association

can take property to fund its operations

without authorization from the state legis-

RN sieniabicanediiidsciniindiinlenriniatinvinninienieitonroess 25

4. The three day delinquency in filing the

notice of appeal is excusable neglect........... 26

ideo iisdincsioihaiaiinsbialianannadhibadatiiouieaiineien 28

APPENDIX

1. Dismissal of Appeal by Court of Appeals............ App. 1

2. District Court Order of Dismissal...................00+. App. 2

3. District Court’s Final Judgment of Dismissal .... App. 5

Vv

TABLE OF AUTHORITIES

Page

CASES

Carrick v. Locke, 125 Wn.2d 129 (1994) .................... 17

Clark v. State of Washington, 366 F.2d 678 (9th

SII TEI thieicicsiiephcsesinlninisensinininhinnicesligipedaibaaediaineabiins 11, 12, 13

Davis v. Michigan Dept. of Treasury, 489 U.S.

es csdincssncitciienndis msciesitepiantigapainbiaiasisaiaibiaeaneniaapanaianousiciel 21

In Re Federal Court Rules, 384 U.S. 865 (1963) ....... 18

Leahey v. Farrell, 66 A.2d 577 (PA 1949)............. 18, 19

Marbury v. Madison, 5 U.S. 137 (1803)..................... 24

McKay v. Nesbett, 412 F.2d 846 (9th Cir.

SIT iiinihdaibcenininedidininidlidcliiainindicitadicabitslibieiiaddmasinal 11, 12,13

Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct.

ETE civschetinsncaheciennsenbsiensinioecianiddaiiavebeiaieaianaleadiiatain 19

Moses Lake Homes v. Grant County, 365 U.S.

I Piciinicinnsvcnessisnnntiinipencindiuiaiiiatibainiiieiatalidimitiadiabiaadiatas 21

Rees v. City of Watertown, 19 Wall. 107 (1874).......... 22

Smith v. Miller, 153 Colo. 35, 384 P. 2d 738

I rasecctninkenndusceasieslaessiatidaesebiesadeieipcemmanaaiaaaiua nau aa 18

State ex rel. Johnson v. Taulbee, 423 N.E.2d 80

See csthiveineisniniatiidenntulingnibadabiaiadainnadimaiiiédaeliaianinile 18

Zilstra v. Piva, 85 Wn.2d 743 (1975) ................ eee 18

vi

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL AND STATUTORY PROVISIONS

US Comatitution, Article 1, § 3............cccccccccccccccccscsccees 28

SE) | | aE 20

ET eee ee a 17

ac cscieenmeatiel 1, 2,9, 11

OTHER AUTHORITIES

J. Weinstein, REFORM OF COURT RULE MAKING,

ka cccleeanenioninpepedneons 18

The Federalist No. 78, p. 523 (J. Cooke ed.

NERC RR a oe 20

1

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is unreported and appears at App. 1.

The order of the District Court, Western District

of Washington is unreported and appears at App. 2.

The final Judgment of the District Court, West-

ern District of Washington is unreported and appears

at App. 5.

Sd

JURISDICTIONAL STATEMENT

Because this case was dismissed by the District

court on a Rule 12 motion to dismiss prior to filing an

answer, the facts alleged in the complaint must be

taken as true. The complaint alleges a violation of 42

U.S.C. § 1983 consisting of the taking of private

property without due process in violation of the US

Constitution by persons acting with insufficient legal

authority but under color of state law. These allega-

tions gave the District court jurisdiction under the

cited statute.

The case was dismissed by the District court on

February 21, 2008 with a final order of dismissal.

Two days later, the plaintiff mailed copies of a Notice

of Appeal to the district court, the court of appeals,

and opposing counsel. The Notice of Appeal mailed to

the district court was lost in the mail and a replace-

ment was received by the district court on March 25,

three days after the deadline for filing the notice of

2

appeal in the district court. The replacement notice of

appeal was treated by the district court as timely

filed.

After the appeal was docketed and scheduled by

the court of appeals, the defendants filed a motion to

dismiss the appeal which motion was granted July

17, 2008. This petition for certiorari was filed in the

U.S.S.C. within 90 days as required by court rules.

¢

CONSTITUTIONAL PROVISION AT ISSUE:

SEPARATION OF POWERS

+

STATEMENT OF PROCEDURAL HISTORY

The plaintiff, a former attorney at law, alleged

that officers of the Washington state courts were

violating the US Constitution by taking his property

to fund their operations without authorization from

the state legislature. He filed suit under the civil

rights law, 42 U.S.C. § 1983, seeking an injunction

and, if any property was unreturnably taken before

the injunction issued, damages.

Before answering, some of the defendants filed a

Rule 12 motion to dismiss on various grounds. The

district court determined that it did not have jurisdic-

tion to hear the case and dismissed it. The plaintiff

appealed.

3

The Court of Appeals dismissed the first appeal

in this case because the district court’s frst dismissal

below did not explicitly dismiss the claims against

two parties that did not join the motion to dismiss,

with a result that the dismissal below was not explic-

itly final for all parties.

The parties to the appeal then rectified this

defect by stipulation and the district court entered a

new judgment on a stipulated dismissal on February

21, 2008. Two days later on February 23, 2008, the

plaintiff prepared a one page Notice of Appeal with a

certificate of mailing and mailed it by US mail to the

district court clerk, along with five photocopies. The

plaintiff did not include the appeal fee or the Civil

Appeals Docketing Statement. On the same day, the

plaintiff filed a motion in the court of appeals, with a

copy to opposing counsel, asking the court to recon-

sider its dismissal and reopen the first appeal, which

was already fully briefed and ready for oral argu-

ment. The plaintiff attached to the motion a copy of

the Notice of Appeal that Appellant mailed to the

district court on the same day. The motion was unop-

posed.

The Court of Appeals denied the motion to reopen

the first appeal. The plaintiff then prepared a Civil

Appeals Docketing Statement and mailed it to the

district court along with a copy of the previously

mailed Notice of Appeal and a check for the filing fee.

These were received by the district court on March

25, thirty-three days after the judgment of the

4

district court was entered on February 21, three days

after the 30 day deadline.

The docket entry computer records maintained

by the district court clerk do not show that the Notice

of Appeal mailed February 23 was received by the

district court. It was apparently lost in the mail. The

files of opposing counsel and the court of appeals

show that copies of the signed Notice of Appeal with

its certificate of mailing were mailed on the 23rd of

February to the district court as well as to opposing

counsel and the court of appeals.

*

STATEMENT OF FACTS

I, Jeffrey Haley, write this statement in the first

person as I am appearing pro se. I was an attorney at

law and a member of the Washington State Bar

Association until January 2006 when I declined to

pay annual bar dues or submit evidence of completion

of CLE requirements. On August 21, 2006, I filed the

complaint in this action (see Excerpt of Record pp 1-5)

which included the following factual allegations, all of

which must be taken as true for purposes of this

appeal:

2. I joined my brother and friends as

an investor in a corporate business enter-

prise for which I also served as an attorney. I

then acted on oral instructions and authori-

zation from all shareholders of the corpora-

tion to transfer certain property to a new

corporation in which I had an interest.

5

3. The Washington State Bar Associa-

tion (WSBA) brought a preceding for an ethi-

cal violation and the Washington State

Supreme Court (WSSC) determined that I

should have obtained the instructions and

authorization in writing. For this lapse, the

WSSC imposed a reprimand. With this out-

come, I was the prevailing party because the

result matched the position that I argued to

the WSSC and offered to the WSBA when

the original proceeding first commenced.

4. The WSSC ordered me to pay to the

WSBA $9,888.13 plus interest for costs of the

proceeding, even though I prevailed on all is-

sues.

5. Rather than pay the $9,888.13 plus

interest, I prefer to suffer a suspension of my

right to practice law until [ pay. I believe

that the law gives me this option. . . .

6. The WSBA requested that the WSSC

send its judgment for costs to the King

County Superior Court to be entered in the

court records and become a lien against my

real estate as a first step toward depriving

me of my property to collect the costs.

7. The WSBA is an agency of the gov-

ernment of the state of Washington. The ac-

tions of its agents are government actions

taken under color of law.

8. In this case, defendants Jan Michels,

Anne Seidel, and Jonathan Burke are agents

6

of the WSBA that are carrying out or plan-

ning to carry out the actions of the WSBA.

9. The WSBA agents intend to, and will

if not restrained, take property from me

against my will to fund its operations as an

agency of the government of the state of

Washington.

15. Because the WSBA and the WSSC

do not have authority to do this, such an

action by their agents or an agent of the

King County Superior Court will be a depri-

vation of my property without authority of

law....

18. In its function to enforce lawyer

discipline, the WSBA does not have authority

to take property of any citizen, whether or

not that citizen is or was a member of the

WSBA. The legislature has not granted such

authority. . ..

19. In its function to enforce lawyer

discipline, the WSSC does not have authority

to take property of any citizen, whether or

not that citizen is or was a member of the

WSBA. The legislature has not granted such

authority... .

7

In addition to the above facts alleged in the complaint

which must be taken as true, I offer the following

judicially noticeable facts:

21. The Washington State Legislature

has not granted any authority to the Wash-

ington State Supreme Court for the purpose

of administering the lawyer discipline sys-

tem.

22. The Washington State Legislature

has not granted any authority to the WSBA

for the purpose of administering the lawyer

discipline system.

23. The administration of the Washing-

ton attorney discipline system is governed by

the Rules for Enforcement of Lawyer Con-

duct (ELCs) which were drafted and adopted

by the WSBA and the Washington Supreme

Court. None of the Rules for Enforcement of

Lawyer Conduct have been reviewed or ap-

proved or adopted by the Washington State

Legislature.

24. After the complaint in this action

was filed, on September 8, 2006, on applica-

tion by the WSBA acting though its agents

defendants Michels, Seidel, and Burke, the

clerk of the WSSC entered a judgment

against me in favor of the WSBA, an agency

of the WSSC, in the amount of $9,888.13

plus accrued interest with interest to accrue

at 12% per annum and transmit‘ed a copy of

that judgment to the clerk of the King

County Superior Court.

8

27. The clerk of the King County Supe-

rior Court recorded the judgment in the re-

cords of the King County Superior Court

such that it created a lien on my residence.

In addition to the above facts, to focus on the impor-

tant legal issues and avoid confusion with side issues,

I offer the following articulations of the law that I

believe are undisputed: -

28. Under the Washington State Con-

stitution, the Washington Supreme Court

has exclusive responsibility in the state to

administer the lawyer discipline system and

has inherent power to maintain appropriate

standards of professional conduct and to dis-

pose of individual cases of lawyer discipline.

Persons carrying out these functions act un-

der the Supreme Court’s authority.

29. The Washington State Supreme

Court has delegated authority for adminis-

tering the lawyer discipline system to the

Washington State Bar Association (WSBA).

30. With their powers limited by rules

adopted by the State Supreme Court, the

WSBA is governed by a board of governors

who are elected by members of the WSBA

and are not elected by the citizens or ap-

pointed by an official elected by the citizens.

¢

9

ARGUMENT

The underlying appeal involves important issues

of separation of powers. In the last eight years, sepa-

ration of powers has been a very important issue in

this country, specifically limitations on powers of the

executive and encroachment by the executive upon

powers of the judiciary. The underlying appeal in-

volves encroachment by state courts on the powers of

the state legislature. This is an issue that has been

very little addressed by state or federal courts since

this country was founded. This is an important issue

because separation of powers — in all directions,

between all three branches — is of foundational im-

portance to our constitutional form of government.

This Court should take this opportunity to ex-

plain to the American people and all branches of

government that separation of powers imposes limi-

tations on powers of all three branches, even the

courts, not just on the legislature and the executive.

The parties have submitted complete briefs to the

Ninth Circuit Court of Appeals in this matter (No. 07-

35130) and the case is ready for oral argument. This

Court should enter a per curiam opinion directing the

Ninth Circuit Court of Appeals to hear this appeal.

Sub-Issues Presented For Review

1. Do the federal district courts have jurisdiction

under 42 U.S.C. § 1983 to enjoin officers of state

courts from violating the US Constitution by taking

10

property of a former attorney at law to fund their

operations without authority from the state legisla-

ture?

2. Does the due process clause of the US Constitu-

tion require that state courts comply with state

constitutional limitations on powers of branches of

government and obtain authorization from the state

legislature before they take property from citizens to

fund their operations?

3. Is a former attorney at law who joined the state

bar association a special class of citizen from whom

the state bar association can take property to fund its

operations without authorization from the state

legislature?

4. Is a three day delinquency in filing a notice of

appeal “excusable neglect” where the notice of appeal

was timely mailed to the district court clerk but lost

in the mail, yet copies mailed at the same time were

timely received by opposing counsel and the court of

appeals, and a replacement was received by the

district court three days after the deadline, where the

district court implicitly allowed an extension of time

by treating the replacement as timely filed?

ll

1. The federal district courts have jurisdic-

tion under 42 U.S.C. § 1983 to enjoin offi-

cers of state courts from violating the US

Constitution by taking property of a for-

mer attorney at law to fund their opera-

tions without authority from the state

legislature.

As plaintiff, I alleged a violation of a federal

statute, 42 U.S.C. § 1983 which states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of Co-

lumbia, subjects, or causes to be subjected,

any citizen of the United States or other per-

son within the jurisdiction thereof to the

deprivation of any rights, privileges, or im-

munities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law, suit in equity, or other

proper proceeding for redress, except that in

any action brought against a judicial officer

for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was vio-

lated or declaratory relief was unavailable.

This statute specifically gives the federal courts

subject matter jurisdiction.

However, the district court below read the cases

of Clark v. State of Washington, 366 F.2d 678 (9th Cir.

1966) and McKay v. Nesbett, 412 F.2d 846 (9th Cir.

1969), as removing the court’s jurisdiction in this

case.

12

In Clark v. State, Clark was disbarred and

sought a decree to vacate the judgment of disbar-

ment. He alleged that the disciplinary proceedings

were conducted in such a manner as to violate his

rights under the Fourth, Eighth, and Fourteenth

Amendments. That is, he attempted to question in

federal court whether the discipline was well

founded. He sought to challenge the state court’s

withdrawal of his privilege to appear in court repre-

senting others. The state courts have an exclusive

scope of authority to determine who can represent

others before them.

The facts in MacKay v. Nesbett were essentially

the same. An attorney was suspended from the privi-

lege of representing others in court for one year and

he sued in federal court seeking a declaration that

the order of suspension was invalid.

In my case, I am not challenging the discipline

imposed or the grounds for it. I am not objecting to

the state court determining without review whether I

may represent others before them. I am questioning

whether the state courts have authority to take my

property without approval from the legislature. No

issue like this was presented in Clark or MacKay.

I do not contend that the courts cannot determine

who may represent others before them without au-

thority from the legislature. I do contend that the

courts cannot order citizens to give property to the

courts for the courts’ use without legislative author-

ity. I contend this is true whether or not the citizen is

13

a former attorney at law or was ever a member of the

bar association. When one joins the bar association,

one does not give up one’s rights as a citizen.

The district court took the pwsition that I was

seeking “an order from this court that would disturb

a final state court judgment.” This is flatly incorrect.

No court has issued a decision on the issue raised in

this case. Some time before my discipline case came

up, the Washington State Supreme Court adopted a

rule that, as the WSBA is attempting to apply it in

my case, is unconstitutional. As soon as the WSBA

stated its intention to ask the clerk of the Washington

State Supreme Court to apply the rule in my case and

before the action to apply the rule was commenced, I

filed this federal court action. No state court has

made any ruling on whether this rule may constitu-

tionally be applied to me.

As part of a discipline proceeding, the state court

decided that I should pay about $10,000 to the Bar

Association. I do not contest this decision. I question

what powers the WSBA has at its disposal to obtain

the ordered payment. I agree that the state courts

may withhold my privilege to represent others before

the courts of the State of Washington until the

amount is paid. I agree that under Clark and Mac-

Kay, I may not challenge such a withholding in

federal court. I merely contend that, if the state

courts want to take my property from me against my

will to fund their operations, they must have a consti-

tutional power to do so, and the recording of a lien

against my real estate is an unconstitutional taking

14

without such constitutional power and therefore a

violation of due process.

Thus, I do not challenge any final decision of a

state court. I do not contest the decision of the State

Supreme Court that I should pay about $10,000 to

the WSBA. I only contest their power to take my

property against my will. The state courts have not

issued any decision on this issue.

As stated in my complaint, I am asking this court

to rule that the WSSC and its agency the WSBA do

not have constitutionally required authority to im-

pose a tax or charge on any citizen or forcibly collect a

tax or charge from any citizen to fund their opera-

tions. Although the WSBA asserts that it obtained

this authority by delegation from the State Supreme

Court when the Supreme Court adopted rules pro-

posed by the WSBA, the State Supreme Court did not

have any such authority under the state Constitution

to delegate. And, because the WSBA does not have

such authority, any steps it takes which have the

effect of depriving me of property are done without

due process (which requires constitutional authority

for any process) and are therefore a “deprivation of”

my “rights, privileges, or immunities secured by the

Constitution and laws” as quoted from the federal

statute above.

Under the doctrine of separation of powers which

is a part of the state Constitution, only the legislature

has the power to impose taxes or other charges

on citizens to fund the courts or Bar Association

15

operations. There is an unacceptable risk of abuse

when legislative and judicial powers are cleimed by a

single agency of government, especially where the

governors of that agency are elected by self-selected

members of a profession and not elected by the citi-

zens or appointed by an elected official.

2. The due process clause of the US Constitu-

tion requires that state courts comply with

state constitutional limitations on powers

of branches of government and obtain au-

thorization from the state legislature be-

fore they take property from citizens to

fund their operations.

Consider this summary of key facts:

(1) The WSBA is an agency of the Washington

Supreme Court which is an agency of state govern-

ment.

(2) At the request of the WSBA acting as an

executive branch of government, a lien for about

$10,000 with interest has been recorded against my

real estate by court clerks, which would already be a

damaging taking of my property if I wanted to trans-

fer my property to another or obtain a home equity

loan, which I will want to do one day.

(3) To collect the about $10,000, acting as an

executive branch of government, the WSBA intends to

take a portion of my real estate when I sell it, if not

sooner, and intends to take personal property from

me.

16

(4) The WSBA is not seeking money from me as

a condition for granting or maintaining a license or

allowing me to represent others before the courts of

Washington State.

(5) The WSBA’s sole purpose in taking my

property is to fund its prospective governmental

functions, all of which are unrelated to me.

(6) There are no facts which would give the

WSBA grounds to assert a monetary claim against me

under any state statute or under any coinmon law

rule whether tort, contract, property, or other.

(7) The WSBA has not been granted any au-

thority by the state legislature, either directly or via a

grant of authority to the courts, to assess taxes or

charges against me or to enforce against anyone or

against any property any taxes or charges invented

by the WSBA or by the Washington State Supreme

Court.

(8) The only basis the WSBA has for asserting a

right to take my property to fund its prospective

governmental functions is a rule of attorney disci-

pline invented by the WSBA and adopted by the

Washington State Supreme Court that has not been

reviewed or approved or adopted by the State Legisla-

ture.

(9) In the disciplinary proceeding from which

the WSBA’s claim arises, I was the prevailing party

because my legal analysis on every charge was

adopted by the State Supreme Court and the final

“— ae

“a

*

17

outcome, a reprimand, was offered by me to the

WSBA and refused by the WSBA at the outset of the

proceeding before any significant costs were incurred

by either side.

2A. The doctrine of separation of powers

places limits on the legislative func-

tions that can be exercised by the judi-

ciary and those limits have been

exceeded.

The separation of powers doctrine is a part of the

Washington State Constitution and it follows the

federal doctrine. Carrick v. Locke, 125 Wn.2d 129, 135

(1994). Under the federal separation of powers doc-

trine, the traditional narrow rule was that the judi-

cial branch could do practically nothing of a

legislative character — it could not even adopt rules of

court — they needed to be adopted by Congress and

approved by the President. When Congress first

adopted rules for federal courts in 1934 and the rules

were approved by the President, there was no asser-

tion that the courts could do this on their own. Sub-

sequently, 28 U.S.C. § 2072 was adopted in 1948.

With amendments through 1962, this statute dele-

gated from Congress to the federal courts power to

adopt rules of procedure which would take effect 90

days after they were reported to Congress if Congress

failed to act to change them. In the fall of 1962

and January of 1963, the U.S. Supreme Court ap-

proved changes to the rules and reported them to

Congress under this statute. Justices Douglas and

18

Black dissented, expressing the opinion that, the

delegation statute notwithstanding, separation of

powers as expressed in the US Constitution required

any such rules to be specifically voted on by Congress

and considered and approved by the President. Jn Re

Federal Court Rules, 384 U.S. 865, 866 (1963).

The views of Douglas and Black did not prevail.

Since 1963, the rule has become well settled that

courts can adopt rules of procedure without the rules

being adopted by a legislature and approved by a

governor. See J. Weinstein, REFORM OF COURT RULE

MAKING, 82 (1977).

The powers of courts extend farther into the

legislative arena than merely the power to adopt

rules of procedure. Specifically, there is a small but

well established class of cases in which courts have

held that that they have the power to compel expen-

ditures from the public treasury when necessary to

administer justice, such as to pay probation officers,

criminal defense counsel, services of the sheriff, and

stenographers. E.g., Zilstra v. Piva, 85 Wn.2d 743

(1975); State ex rel. Johnson v. Taulbee, 423 N.E.2d

80 (1981); Smith v. Miller, 153 Colo. 35, 384 P. 2d 738

(1963); Leahey v. Farrell, 66 A.2d 577 (PA 1949).

Although the courts have the power to compel

expenditures from the public purse when necessary to

administer justice, they do not have the power to

raise taxes or create new taxes for the same purpose.

As stated by the Supreme Court of Pennsylvania:

19

“The function of the judiciary to administer

justice does not include the power to levy

taxes in order to defray the necessary ex-

penses in connection therewith. It is the leg-

islature which must supply such funds.”

Leahey v. Farrell, 66 A.2d 577, 579 (1949).

In Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct.

1651 (1990), the district court had ordered a local tax

increase to fund better schools to achieve desegrega-

tion. The Eighth Circuit Court of Appeals approved

the tax increase and the US Supreme Court over-

ruled, stating: “In assuming for itself the fundamen-

tal and delicate power of taxation, the District Court

not only intruded on local authority but circumvented

it altogether.” 495 U.S. 33 at 51. In a concurring

opinion, Justice Kennedy explained at pages 61 to 69:

Other Circuits that have faced funding prob-

lems arising from remedial decrees have con-

cluded that, while courts have undoubted

power to order that schools operate in com-

pliance with the Constitution, the manner

and methods of school financing are beyond

federal judicial authority. See National City

Bank v. Battisti, 581 F.2d 565 (CA6 1977);

Plaquemines Parish School Bd. v. United

States, 415 F.2d 817 (CA5 1969). The Third

Circuit, while leaving open the possibility

that in some situations a court-ordered tax

might be appropriate, has also declined to

approve judicial interference in taxation. Ev-

ans v. Buchanan, 582 F.2d 750 (1978), cert.

denied, sub nom. Alexis I. DuPont School

20

Dist. v. Evans, 447 U.S. 916 (1980). The

Sixth Circuit, in a somewhat different con-

text, has recognized the severe intrusion

caused by federal court interference in state

and local financing. Kelley v. Metropolitan

County Bd. of Education of Nashville and

Davidson County, Tenn., 836 F.2d 986 (1987),

cert. denied, 487 U.S. 1206 (1988).

Article III of the Constitution states that

[t]he judicial Power of the United States,

shall be vested in one supreme Court,

and in such inferior Courts as the Con-

gress may from time to time ordain and

establish.

The description of the judicial power no-

where includes the word “tax,” or anything

that resembles it. This reflects the Framers’

understanding that taxation was not a

proper area for judicial involvement.

The judiciary ... has no influence over

either the sword or the purse, no direc-

tion either of the strength or of the

wealth of the society, and can take no ac-

tive resolution whatever.

The Federalist No. 78, p. 523 (J. Cooke ed.

1961) (A. Hamilton).

Our cases throughout the years leave no

doubt that taxation is not a judicial function.

Last Term, we rejected the invitation to

cure an unconstitutional tax scheme by

21

broadening the class of those taxed. We said

that such a remedy “could be construed as

the direct imposition of a state tax, a remedy

beyond the power of a federal court.” Davis v.

Michigan Dept. of Treasury, 489 U.S. 803,

_ 818 (1989). Our statement in Davis rested on

the explicit holding in Moses Lake Homes v.

Grant County, 365 U.S. 744 (1961), in which

we reversed a judgment directing a District

Court to decree a valid tax in place of an in-

valid one that the State had attempted to en-

force:

The effect of the Court’s remand was to

direct the District Court to decree a

valid tax for the invalid one which the

State had attempted to exact. The Dis-

trict Court has no power so to decree.

Federal courts may not assess or levy

taxes. Only the appropriate taxing offi-

cials of Grant County may assess and

levy taxes on these leaseholds, and the

federal courts may determine, within

their jurisdiction, only whether the tax

levied by those officia's is or is not a

valid one.

Id. at 752.

.... For this reason, the District Court’s di-

rect order imposing a tax was more than an

abuse of discretion, for any attempt to collect

the taxes from the citizens would have been a

blatant denial of due process. {emphasis

added by present author]

22

A judicial taxation order is but an attempt to

exercise a power that always has been

thought legislative in nature. The location of

the federal taxing power sheds light on to-

day’s attempt to approve judicial taxation at

the local level. Article I, § 1 states that

fajll legislative Powers herein granted

shall be vested in a Congress of the United

States, which sha!! consist of a Senate and

House of Representatives. ...

(Emphasis added.) The list of legislative

powers in Article I, § 8, cl. 1 begins with the

statement that “[t]he Congress shall have

Power To lay and collect Taxes....” As we

have said, “[tjaxation is a legislative func-

tion, and Congress ... is the sole organ for

levying taxes.” National Cable Television

Assn. Inc. v. United States, 415 U.S. 336, 340

(1974) (citing Article I, § 8, cl. 1).

...+s Our statement in a case decided more

than 100 years ago should apply here.

This power to impose burdens and raise

money is the highest attribute of sover-

eignty, and is exercised, first, to raise

money for public purposes only; and, sec-

ond, by the power of legislative authority

only. It is a power that has not been ex-

tended to the judiciary. . . .

Rees v. City of Watertown, 19 Wall. 107, 116-

117 (1874).

23

In the present matter, the WSBA asserts that it

has the power, by delegation and approval from the

Washington State judiciary, to create and impose a

charge on a citizen who asks nothing of the WSBA or

the courts of the State of Washington — not to fund a

program by the executive branch of government such

as schools, but to fund itself, a part of the judicial

branch.

In all of American legal history, this is may be the

most audacious overreaching into the legislative

arena ever taken by a judicial branch of government.

After an extensive search, I have found no case where

an agent of the judiciary has ever asserted, with or

without success, that a court has the power to take

property from a citizen for the purpose of funding its

own governmental activities without an authorizing

statute from the legislature which sets the amount to

be taken and the procedure to follow.

For the state judicial branch to assert that it can

invent and enforce taxes or other charges on citizens

to fund its own activities, without a delegation of

authority from the legislature, and then act as an

executive branch of government to take property to

enforce those taxes or other charges, raises a poten-

tial for abuse that constitutes the core purpose for

separation of powers.

The citizens of this country have recently wit-

nessed overreaching for power by the US executive

branch in violation of the separation of powers doc-

trine. Fortunately, it has been checked by the federal

24

courts. Now we have a case of state courts overreach-

ing to aggrandize to themselves legislative taxing

powers to fund their own activities. Protecting the

separation of powers doctrine to ensure that govern-

mental powers of each branch are limited has been an

essential role of the federal courts since Marbury uv.

Madison 5 U.S. 137 (1803). It is a role that the fed-

eral courts are now called upon to fulfill, once again,

to protect our United States form of government for

the benefit of future generations.

2B. Hypothetical cases:

To help bring this issue into focus, I offer hypo-

thetical cases for the court’s consideration:

First, to fund various court operations, it might

be good policy for the courts to assess more “user fees”

like filing fees and fees for copies and transcripts. An

example of a user fee that might be good policy is a

1% fee on the value of estates probated by the courts.

This fee would fall on those who make use of the

probate system, roughly in proportion to their ability

to pay, and would not fall on citizens who do not use

the system.

Suppose the state courts were to adopt such a fee

system without legislative authorization and then, if

a party didn’t pay the fee, a court filed a judgment

against the party and recorded a lien on his real

estate. Is there any doubt this exceeds the power

of the courts and constitutes a taking of property

25

without due process in violation of the Fifth and

Fourteenth Amendments to the US Constitution?

Second, suppose a state judicial branch decided,

without legislative authorization, that it needs to

increase last year’s bar dues by $200 to offset a major

expense incurred last year and courts then filed a lien

against property of a lawyer who retired before the

dues increase was effective and didn’t pay the retro-

active assessment. How could the proper analysis be

different?

Finally, suppose a state judicial branch decided,

without legislative authorization, to fund its future

operations by imposing a $10,000 levy on a former

lawyer who ceased practicing law and then, when it

was not paid, took property from the former lawyer’s

estate? This is the case before the court.

3. A former attorney at law who joined the

state bar association is not a special class

of citizen from whom the bar association

can take property to fund its operations

without authorization from the state legis-

lature.

The defendants may argue that the assessment

of about $10,000 is a part of the “discipline” imposed

on me and that the general power of the courts to

determine who will represent others before them

gives them the power to take property from attorneys

at law who are disciplined even though they do not

have power to take property from other citizens to

26

fund their operations. As discussed above, no other

court in the history of this county has ever made such

an assertion of unchecked power.

When I joined the state bar association, I did not

agree to pay costs of a future disciplinary proceeding.

There is no contract which says I should do so; there

is no statute which says I should do so; and there is

no common law rule which says I should do so. If a

person joins a private club and the members of the

club decide that the person should pay an extra part

of the club’s expenses, the club cannot force the

person to pay by taking their property. The club can

merely withhold the privileges of membership. The

WSBA is in the same position.

4. Athree day delinquency in filing a notice

of appeal is “excusable neglect” where the

notice of appeal was timely mailed to the

district court clerk but lost in the mail, yet

copies mailed at the same time were timely

received by opposing counsel and the court

of appeals, and a replacement was received

by the district court three days after the

deadline, and where the district court im-

plicitly allowed an extension of time by

treating the replacement as timely filed.

The court of appeals should have denied the

defendant’s motion to dismiss the appeal due to an

untimely filed notice of appeal for several reasons.

27

First, the three day delay had no effect on the

expectations of opposing parties because they re-

ceived in the mail, mailed on February 23, a copy of

the Notice of Appeal mailed to the district court on

the same day. They did not learn that the original

sent to the district court was lost in the mail and not

received by the district court until they reviewed the

docket sheet to prepare the appeal.

Second, the three day delay is de minimis and

had no effect on the courts. The district court treated

the Notice of Appeal that it received on March 25 as

timely filed.

Third, the Appellant’s reliance on the US mail to

deliver the Notice of Appeal mailed on February 23

was reasonable and customary. A pro se Appellant

should not be penalized for failure of the postal

system to deliver a Notice of Appeal.

Fourth, FRAP 4(a)(5) allows extensions of time to

be granted on ex parte motion made after the appeal

deadline has been missed if the movant shows excus-

able neglect or good cause. In this case, the delay was

caused by reliance on the postal service. Reliance on

the postal service rather than making an in-person

delivery is per se excusable when the postal service

fails, and the postal system’s failure constitutes good

cause. Appellant’s filing of a second copy of the Notice

of Appeal three days after the deadline should be

construed as an implicit ex parte motion to extend the

deadline by three days and the district court’s subse-

quent normal processing of the appeal should be

28

construed as an implicit grant of the motion by the

district court.

+

CONCLUSION

Both the US Constitution, Fifth and Fourteen

Amendments, and the Washington State Constitu-

tion, Article I Section 3, guarantee that my property

cannot be taken from me without due process of law.

Due process of law requires that any taking of my

property to fund prospective operations of govern-

ment be duly authorized by a branch of government

that has the constitutional power to decide what

property should be taken from which citizens for

what purposes. Under separation of powers, only the

legislature has that power. Because there is no au-

thorization from the legislature for the actions of the

WSBA in this case, efforts of the defendants to take

my property must be declared invalid.

This court should enter a per curiam order direct-

ing the Ninth Circuit Court of Appeals to hear this

appeal. The appeal has already been fully briefed and

is ready for oral argument.

DATED this 13th day of November, 2008.

Respectfully submitted,

JEFFREY T. HALEY

APPENDIX

Page

1. Dismissal of Appeal by Court of Appeals. App. 1

2. District Court Order of Dismissal....................... App. 2

3. District Court’s Final Judgment of Dismissal.... App. 5

App. 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY THORNTON HALBY, |No. 08-35254

an individual citizen, D.C. No.

Plaintiff-Appellant, 2:06-cv-01191-JLR

Western District of

56 Washington, Seattle

Defendants-Appellees. (Filed Jul. 17, 2008)

Before: SCHROEDER, LEAVY and IKUTA, Circuit

Judges.

Appellees’ motion to dismiss this appeal for lack

of jurisdiction is granted. See 28 U.S.C. § 2107(a);

United States v. Sadler, 480 F.3d 932, 937 (9th Cir.

2007) (requirement of timely notice of appeal is

jurisdictional). Appellant did not file a timely motion

for extension of time pursuant

Appellate Procedure 4(a)(5).

to Federal Rule of

All other pending motions are denied as moot.

App. 2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JEFFREY HALEY,

Plaintiff, CASE NO. C06-1191JLR

v. ORDER

JAN MICHELS, et al.,

Defendants.

This matter comes before the court on a motion

to dismiss (Dkt. # 6) from Defendants Jonathan

Burke, Anne Seidel, and Jan Michels — all officers of

the Washington State Bar Association (“WSBA”). The

court has considered the papers filed in connection

with this motion and finds the matter appropriate for

disposition without oral argument. For the reasons

stated below, the court GRANTS Defendants’ motion.

On two separate occasions, the Washington State

Supreme Court imposed disciplinary measures

against Plaintiff, an attorney, for various ethical

violations. In Re Hailey [sic], 126 P.3d 1262 (Wash.

2006) (imposing a reprimand); In Re Hailey [sic], 138

P.3d 1044 (Wash. 2006) (imposing a one-year suspen-

sion from practice). The WSBA commenced both

actions pursuant to the Rules of Enforcement of

Lawyer Conduct. Following the reprimand order in

the first proceeding, the WSBA filed a statement of

costs and expenses with the Clerk of the Court. The

Court entered judgment against Plaintiff in favor of

App. 3

the WSBA in the amount of $9,888.13, plus interest.

At the request of the WSBA, the Clerk transmitted

the judgment to King County Superior Court.

Plaintiff filed suit in this court to enjoin the

WSBA from collecting on the judgment. Plaintiff

contends that he would prefer to suffer a suspension

of his right to practice, rather than pay the judgment

or suffer a lien on his real property. He argues that

WSBA’s attempt to collect on the judgment consti-

tutes a taking without due process. He also contends

that the WSBA lacks authority, under the separation

of powers doctrine, to “collect a tax” from him to fund

its attorney disciplinary program.’ Pl.’s Opp’n at 2.

The court concludes that it lacks jurisdiction over

this matter. See Clark v. State of Washington, 366

F.2d 678, 681 (9th Cir. 1966) (“The federal courts are

without power to issue writs of mandamus to direct

state courts or their judicial officers in the perform-

ance of their duties, including disbarment proceed-

ings.”). Notwithstanding Plaintiff’s characterization

of his claim, what he seeks is an order from this court

that would disturb a final state court judgment. See,

e.g., Compl. 44 (“The (Washington State Supreme

' The court finds disingenuous Plaintiff’s contention that

the WSBA is attempting to collect an unconstitutional “tax.”

Rather, the WSBA seeks to enforce a state court judgment

rendered in its favor. Plaintiff does not cite nor is the court

aware of any authority that stands for the proposition that

collecting on a judgment is akin to imposing an unconstitutional

tax.

4

4

3

-

r

4

x

i

7

j

,

App. 4

Court] ordered me to pay the WSBA $9,888.13 plus

interest for costs of the proceeding, even though I

prevailed on all issues.”). This court lacks the power

to do so. See MacKay v. Nesbett, 412 F.2d 846, 846

(9th Cir. 1969) (“[Olrders of a state court relating to

the admission, discipline, and disbarment of members

of its bar may be reviewed only by the Supreme Court

of the United States on certiorari to the state court,

and not by means of an original action in a lower

federal court.”).

For the reasons stated above, the court GRANTS

Defendants’ motion to dismiss Plaintiff’s claims with

prejudice. The court directs the clerk to enter judg-

ment consistent with this order.

Dated this 25th day of January, 2007.

/s/ James L. Robart

JAMES L. ROBART

United States District Judge

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;

App. 5

United States District Court

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JEFFREY HALEY, JUDGMENT IN A

Plaintiff, CIVIL CASE

CASE NUMBER:

C06-1191JLR

JAN MICHELS, et al.,

(Filed Feb. 21, 2008)

Defendants.

__ Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

X Decision by Court. This action came to consid-

eration before the Court. The issues have been

considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

The court GRANTED the parties’ stipulated

order of dismissal of Defendants C.J. Merritt and

Barbara Miner (Dkt. # 25). Having already granted

the other Defendants’ motion to dismiss (Dkt. # 17)

and there being no other pending claims, the court

DISMISSES this action in its entirety.

Dated this 21st day of February, 2008.

BRUCE RIFKIN

Clerk

/s/ Mary Duett

Deputy Clerk