Appendix — Whitcomcombe v. Henak (No. 07-875)

Supreme Co ae, US

“CORn. 07-875 NOY 22 2007

0

Reps ’ @ OFFICE OF THE CLERK

APPENDIX

In The

SUPREME COURT OF THE UNITTED STATES

December term, 2007

KIRK AND SUSAN WHITCOMBE

Husband and wife

Petitioners’

Vv.

LARRY AND SUSAN HENAK

Husband and wife

Respondent's

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Kirk and Susan Whitcombe

Pro- Se’s

3320 W Paradise Dr.

Phoenix, AZ 85029

Telephone (602) 993-1326

LIORARY OF GG:eaess

4

BEST AVAILABLE COPY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF ARIZONA

Kirk & Susan Whitcombe, ) No. CV 06-0374-PHX-ROS

Husband and Wife, )

) ORDER

Plaintiffs,

Larry Henak and Susan

Henak, Husband and Wife

Defendants.

TP i

Pending is Plaintiffs’ Motion For Reconsideration (Doc.

#1). Plaintiff's Motion is 77 pages long, excluding

exhibits, and far exceeds the seventeen page limit

permitted under Local Rule 7.2(e) . The court is

permitted to dispose of a motion summarily for non-

compliance pursuant to sections (i), which provides that

“Ti}E a motion does not conform in all substantial

respects with the requirements of this Local Rule ....

Such non-compliance may be deemed a consent to the

denial of granting of the motion and the Court may

dispose of the motion summarily.” This Court has

previously stated that although it will construe a pro-se

parties’ pleadings liberally, such a party is bourd to

follow the procedural rules applicable to all litigants,

represented or not. See Green v Dorrell, 969 F .2d 915,

917 (10% Cir. 1992). ‘[P]ro se litigants in the ordinary civil

case should not be treated more favorably than parties

with attorneys of record.” Jacobsen vy. Filler, 790 F.2d

1362, 1364 (9% Cir. 1986). Because Plaintiff did not

adhere to the proper procedural rules, the submission

A-l -1

must be stricken.

The Court will permit Plaintiffs to refile their

motion in accordance with local and federal rules. The

Court notes that several of the judgments for which

Plaintiff's seek reconsideration were issued several years

ago in other jurisdictions. Plaintiffs are reminded that

although Rule 60 provides for an independent action to

relieve a party from a judgment, order, or proceeding, it

requires that the motion be made “within a reasonable

time, and for reasons (1) mistake, inadvertence, neglect].

(2) [newly discovered evidence], and (3) [fraud] not

more than one year after the judgment, order, or

proceeding was entered or taken.

DATED this 21% day of February, 2006

“s/ 7 “

Roslyn O. Silver

United States District Judge

A-1 -2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF ARIZONA

Kirk & Susan Whitcombe, ) No. CV 06-0374-PHX-ROS

Husband and Wife, )

) ORDER

Plaintiffs,

Larry Henak and Susan

Henak, Husband and Wife

Defendants.

eee eet ee es ee ee”

Pending is Plaintiff's Motion for Reconsideration

(Doc. #10) filed on February 28, 2006. Plaintiffs seek

reconsideration of the Court’s Order of February 21, 206

(Doc. #4), in which it ordered Plaintiff's previous Motion

for Reconsideration stricken because at seventy-seven

pages long, it far exceeds the seventeen page limit

permitted under the local rules. Plaintiffs argue that the

Court erred, because pages ten through seventy-seven

contain a “statement of facts” that are excluded by Local

Rule 7.2(de), which provides that “a motion including its

supporting memorandum....shall not exceed seventeen

pages, exclusive of attachments and any required

statement of facts ....” (emphasis added). As the language

suggests, this rule only excludes required statement of

facts, such as those submitted with a motion for

summary judgment pursuant to Local Rule 56.1. It does

not exclude a sixty- seven page section of a motion that a

party chooses to call a statement of facts in order to

circumvent the page limit. Plaintiffs’ Motion will be

denied.

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Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Motion

for Reconsideration (Doc.#10) is DENIED.

DATED this 20% day of March, 2006.

“s/ LA

Roslyn O Silvet

United States District Judge

A-2 -2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF ARIZONA

Kirk & Susan Whitcombe, ) No. CV 06-0374-PHX-ROS

Husband and Wife, )

) ORDER

Plaintiffs, )

)

Larry Henak and Susan )

)

Henak, Husband and Wife

Defendants. _)

)

On February 1, 2006, Plaintiffs brought this

independent action pursuant to Fed. R. Civ. P. 60(b)

seeking to set aside three orders rendered by the King

County, Washington Superior Court in Henak v.

Whitcombe, et al., No. 95-2-2783-1 (Wash. Super. Ct.

1996), one order rendered by Okanagan County,

Washington Superior Court in Whitcombe v. Twiss, et

al., No. 01-2-00065-1 (Wash. Super. Ct. 2002), and on

order rendered by the Washington State Court of

Appeals in Whitcombe v. Kitz, et al., No. 52005-9-I,

consolidated with No. 52170-5-I (Wash. Ct. App. 2004).1

* The saving clause of Fed. R. Civ. P. 60(b) provides that the rule

“does not limit the power of a court to entertain an independent

action to relieve a party from a judgment, order, or proceeding.”

Wright, Miller & Kane, Federal Practice and Procedure: civil 2d §

2868. This is not an affirmative grant of power, but merely allows

the “continuation of whatever power the court would have had to

entertain an independent action if the rule had not been adopted.”

Treadaway v. Academy of Motion Picture Arts and sciences, 783

A-3 -1

See Exhibits 18, 31, 62, 57, 67 to Plaintiffs’ Motion For

Relief From Judgment (Doc. #4). On February 22, 2006,

the court ordered the filling stricken pursuant to Local

Rule 7.2(e) for exceeding the page limit, but permitted

Plaintiffs to refile the motion in accordance with local

and federal rules (Doc. #4). Plaintiffs have yet to file a

new motion. Because the initial Motion is no longer part

of the record, and Plaintiffs have failed to file an

amended motion in compliance with the Court’s Order,

this action has not been legally commenced pursuant to

the Federal Rules of Civil Procedure.

Moreover, this Court lacks jurisdiction to set aside

state court judgments. Although Fed. R. Civ. P. 60(b)

permit’s a court other than the one that issued the

judgment to provide relief, it is not a n affirmative grant

F.2d 1418, 1420 (9 Cir. 1986). The exercise of this power has

historically been exercised “only under unusual and exceptional

circumstances.” Id. These principles have been explicitly recognized

by this Circuit. See id. citing Lapin v. Shulton, 33 F.2d 169 (9 Cir.

1964) (affirming lower court's holding that “considerations of

comity and orderty administration of justice demanded that the

none rendering court should be decline jurisdiction of such an

action and remand the parties for their relief to the rendering court,

so long as it is apparent that a remedy is available there).

A-3 -2

of power and merely allows “the continuation of power

the court would have had to entertain an independent

action. “ Treadaway v. Acad. Of Motion Picture Arts

and Sciences, 783 F.2d 1418, 1420 (9% Cir. 1986). It is well

established that federal courts cannot enjoin the

enforcement of state judgments. See Atl. Coast Line R.R

Co. V. Bhd. Of Locomotive Eg’r, 398 US. 281 (1970); 28

U.S.C § 2284; Furnish v. Bd. Of Med. Exam’ rs, 257 F.2d

520 (9% Cir. 1958). All of the judgments Plaintiffs seek to

set aside are state court judgments over which this Court

lacks jurisdiction. As a result, the action must be

dismissed.

Accordingly,

IT IS HEREBY ORDERED that this action shall be

DISMISSED.

DATED this 12 day of April, 2006.

“s/

Roslyn O. Silver

United States District Judge

A-3 -3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF ARIZONA

Kirk & Susan Whitcombe, ) No. CV 06-374-PHX-ROS

Husband and Wife, )

) JUDGMENT

Plaintiffs, )

via )

Larry Henak and Susan )

Henak, Husband and Wife )

)

)

)

Defendants.

___ Jury Verdict. This action came before the Court

tor trial by jury. The issues have been tried and the jury

has rendered its verdict.

_X_ Decision by Court. This action came for

consideration before the Court. The issues have been

considered and the decision has been rendered.

IT IS HEREBY ORDERED that this action shall be

dismissed.

April 12,2006

RICHARD H. WEARE

Clerk/ DCE

s/ Tammy Johnson

(By) Deputy Clerk

A-4-l

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF ARIZONA

cirk & Susan Whitcombe, ) No. CV 06-0374-PHX-ROS

iusband and Wife, )

) ORDER

Plaintiffs, )

)

arry Henak and Susan )

denak, Husband and Wife )

)

Defendants. )

ml

Pending are Plaintiffs’ Motion For Relief From

udgment (Doc. #17), Motion For Reconsideration (Doc.

+18), and Motion to Refile CR 60 Motion (Doc. #20). For

he Reasons set forth below, these Motions will be

lenied.

. Background

This action arises out of a boundary dispute between

laintiffs and their neighbors, Larry and Susan Henak.

n 1995, the Henaks file a trespass damages action

igainst the Whitcombes, in which the Henaks prevailed.

tenak v. Whitcombe, et al., No. 95-2-02783-1 (Wash.

super. Ct. 1996) (Exs. #17, 18 to Plaintiffs’ Motion For

<elief From Judgment, Doc. #17). The Whitcombes

ippealed, and the Washington Court of Appeals

iffirmed on April 27,1998. Henak v. Whitcombe, et al.,

No. 39547-5-1 (Wash. Ct. App. 1998) (Ex.#22 to Plaintiffs’

Motion for Relief From Judgment, Doc. #17). Plaintiffs

hen filed a Motion to Vacate the Judgment on February

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22, 1999 based upon information obtained question the

method used by the Henaks’ surveyor, Mr. Kitz, whose

survey the Superior Court relied upon in finding the

Henaks’ in favor. Henak v. Whitcombe, et al., No. 95-2-

02783-1 (Wash. Super. Ct. 1996)(Ex. #28) to Plaintiff's

Motion For Relief From Judgment, Doc. #17). The trial

court denied the motion on the grounds that it had been

affirmed by the Court of Appeals and was res ajudicate.

Id. )Exh. #31 to Plaintiffs’ Motion For Relief From

Judgment, Doc. #17). On August 23, 2002 Plaintiffs again

moved to vacate the judgment, which the trail court

denied on January 3, 2003 for the same reasons. Id. (Exh.

#67 to Plaintiffs’ Motion For Relief From Judgment, Doc.

#17). The Court of Appeals affirmed the trial court's

finding. Whitcombe v. Kitz, et al., No. 52005-9-1,

consolidated with No. 52170-5-I (Wash. Ct. App. 20041)

(Ex. #75 to Plaintiffs’ Motion To Vacate Judgment, Doc.

#17).

In another cause of action, Plaintiffs filed suit

against the Washington State Board of Registration for

Professional Engineers and Land Surveyors for its

failure to censure Nr. Kitz on February 13,2001.

Whitcombe v. Twiss, et al., CV 01-200065-1 (Wash.

Super. Ct. 2001) (Ex. #42 to Plaintiffs’ Motion To Vacate

Judgment, Doc. #17). The lawsuit was dismissed on

December 1, 2002, and the Court of Appeals affirmed in

an unpublished opinion. Whitcombe v. Twiss, et al., No.

21637-3-III (Wash Ct. App. 2005) (Ex. #80 to Plaintiffs’

Motion to Vacate Judgment, Doc #17).

In separate cause of action, the Whitcombes

brought suit against Mr. Kitz for fraud, violation of

survey recording laws, and negligence in surveying

based on the survey he recorded on May 12, 1995. The

A-5 -2

weleser

£

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ee |

uit was filed on January 15,2002, and the

hington Court of Appeals affirmed on May 10, 2004.

tcombe v. Kitz, et al. No. 52005-9-1, consolidated

No. 52170-5-I (Wash. Ct. App. 2004) (Ex. #75 to

tiffs’ Motion To Vacate Judgment, Doc #17). The

‘eme Court of Washington also affirmed.

tcombe v. Kitz, et al. C/A No. 52005-9-I (Wash.

) (Ex. #82 to Plaintiffs’ Motion To Vacate, Doc. #17).

February 1, 2006 Plaintiffs brought this independent

m pursuant to Fed. R. Civ. P. 60 (b) ! seeking to set

> three orders rendered by the King County,

hington Superior Court in Henak v Whitcombe, et

10. 95-2-02783-1 (Wash. Super. Ct. 1996), which was

riginal trespass suit; one order rendered by

nogan County, Washington Superior Court in

combe v Twiss, et al., No. 01-2-00065-1 (Wash.

rT. Ct. 2002), which suit was brought against the

hington State Board of Registration for Professional

neers and Land Surveyors; and one order rendered

ie Washington State Court of Appeals in Whitcombe

tz, et al., No. 52005-9-1, consolidated with No.

0-5-1 (Wash. Ct. App. 2004), which is the Order

ning the trial courts’ denial of the Second Motion

acate Judgment in the original trespass action, and

rial court's dismissal of the Whitcombes’ claim

ist Henaks’ surveyor, Mr. Kitz, for being time

sd (Doc. # 3, stricken).

February 22, 2006, the Court ordered the filing

cen pursuant to Local Rule 7.2(e) for exceeding the

ts Dismissal Order of April 12, 2006, the Court set forth the

grounds upon which an independent action pursuant to Fed.

. P. 60(b) may lie and incorporates it herein.

A-5 -3

page limit, but permitted Plaintiffs to refile the motion in

accordance with local and federal rules (Doc. #4). On

April 12, 2006 this Court dismissed the action based

upon Plaintiffs failure to amend in compliance with its

previous Order, and also because the Court lacks

jurisdiction to grant the relief requested (Doc. #15). The

next day, the Clerk entered the Plaintiff's Amended Rule

60 (b) Motion (Doc. # 17).

On April 20, 2006 Plaintiffs filed a Motion For

Reconsideration (Doc. # 18), and on April 26, 2006 they

filed a Motion To Refile CR60 Motion (Doc. #20).? For

the reasons set forth in the Dismissal Order, this Action

has not been legally commenced, thus no party has

responded to the Motions.

11. Motion for Reconsideration

The Court has discretion to reconsider and vacate its

orders. See Barber v. Hawaii, 42 F. 3d 1185, 1198 (9% Cir.

1994); United States v Nutri-Cology, Inc., 982 F. 2d 394,

396 (9th Cir. 1992.) Motions for reconsideration are

distavored, however, and are not the place for parties to

make new arguments not raised in their original briefs.

See Northwesi Acceptance Corp. v. Lynnwood Equip.

Inc., $41 F.2d 918, 925-26 (9% Cir. 1988). Nor is it the time

to ask the court to rethink what is has already thought.

Plaintiffs repeatedly cite to “CR60” as the basis for their motion.

After reviewing the Attachments to the Motion, it appears that his

shert-cite refers to the Washington State Court Rule of Civil

Procedure, which is inapplicable in federal court. Nonetheless,

given the Plaintiffs’ pro se status and the similarity of the Superior

Court rule and corresponding federal rules, the Court will construe

the Motion as being brought pursuant to Rule 60 of the Federal

Rules of Civil Procedure.

A-5 4

See United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116

(D. Ariz. 1998).

A Rule 60 motion for relief from an order may be

granted only “upon a showing of (1) mistake, surprise,

or excusable neglect; (2) newly discovered evidence; (3)

fraud; (4) a void judgment; (5) a satisfied or discharged

judgment; or (6) extraordinary circumstances which

would justify relief.” School Dist. No. 1] Multnomah

County, Or, v. AcandS, Inc., 5 F.3d 1255, 1263 (9 Cir.

1993); Fed. R. Civ. P. 60 (b); Allmerica Fin. Life Ins. &

Annuit Co. v. Llewellyn, 139 F. 3d 664, 666 (9 Cir. 1997)

stating that party must show “extraordinary

‘ircumstances” to obtain relief under Rule 60 (b) (6)).

Plaintiffs contend that the Court erred finding that it

acks jurisdiction because the state court judgments it

eeks to enjoin were procured by fraud, and that as a

esult, this Court does in fact have jurisdiction, citing

ong v Shorebank Development Corporation, 182 F.3d

48, 554 (7% Cir. 1999). Although Seventh Circuit law is

ot binding upon this Court, the premise for which Long

5 cited is well-settled law. Under the Rooker-Feldman

loctrine, lower federal courts do not have subject matter

urisdiction over claims seeking review of state court

idgments. Rooker v Fidelity Trust Co., 263 US. 414,

15-16 (1923). Thus, a party seeking review of a state

ourt judgment must seek relief through the state court

ystem and ultimately the Supreme Court. The federai

ourt has no jurisdiction if consideration would require

review of the allegations underlying the state judicial

ecision. See Robinson v. Ariyoshi, 753 F.2d 1468, 1471-

2 (9 Cir. 1985), vacated on other grounds, 477 U.S. 902

1986) This doctrine applies even when the challenge to

ne state court decision involves federal constitutional

A-5 -5

issues. See Feldman, 460 US. at 484-86.

Plaintiffs contend that under Long, federal courts have

jurisdiction over a “federal claim alleging a prior injury

caused by a state court judgment,” but not “a federal

claim alleging injury caused by a state court judgment,”

and that because their claim falls in the former category,

this court has jurisdiction. Plaintiffs mischaracterize the

nature of the relief sought. Plaintiffs’ claim that the

judgments procured are fraudulent rests upon its

allegation that the Kitz survey upon which the district

court relied in the original trespass action was faulty.

This argument has been raised repeatedly in the original

trespass action through Motions To Vacate The

Judgment, and also in the actions Whitcombes brought

against Kitz and the State Board of Registration for

Professional Engineers and Land Surveyors, and has

been rejected in every instance. Even if this Court found

the state court judgments were incorrect, it would still

not have jurisdiction. See Long, 182 F.3d at 556. Thus,

Plaintiffs’ action is the very category from which it seeks

to be distinguished in that it “alleges injury caused by a

state court judgment.” Because Plaintiff's raise no new

grounds warranting relief pursuant to Rule 60, the Court

will deny the Motion.

lil. Amended Rule 60 Motion

As previously set forth, Plaintiffs Amended Motion

(Doc.#17) was not considered in the Dismissal Order. It

is of no consequence, however, as it seeks the same relief

over which the Court lacks jurisdiction. For reasons set

forth in the Dismissal Order and above, the Motion will

be denied.

A-5 6

Aotion To Refile Rule 60 Motion

-laintiffs seek to refile their Rule 60 Motion on

aids that the Court should not have stricken the first

yn or dismissed the action. Plaintiffs contend that

te the Court's allegation in the Dismissal Order,

file an Amended Motion. As the Court previously

ined, due to the simultaneous filing of the

nded Motion and the Court’s Dismissal Order, the

nded Motion was not considered. Even if the

ided Motion had been considered, however, the

t would still have dismissed the action because it

the same relief as in the original Motion, which the

t is unable to grant for lack of jurisdiction. For

reasons, the Motion will be denied.

rdingly,

IS HEREBY ORDERED that Plaintiffs’ Amended

m For Relief From Judgment (Doc. # 17), Motion

econsideration (Doc. #18), and Motion To Refile

60 Motion (Doc.#20) are denied.

ATED this 28 day of June, 2006.

s/

Roslyn O. Silver.

United States District Judge

A-5 -7

FILED

SEP 29 2006

Cathy A. Catterson, Clerk

US. Court Of Appeals

JUDICIAL COUNCIL

FOR THE NINTH CIRCUIT

In re Charge of

Judicial Misconduct ORDER AND

)

) No. 06-89062

)

) MEMORANDUM

Before: SCHROEDER, Chief Judge

A complaint of misconduct has been filed

against two district judges of this circuit. Administrative

consideration of such complaints is governed by the

Rules of the Judicial Council of the Ninth Circuit

Governing Complaints of Judicial Misconduct of

Disability (Misconduct Rules), issued pursuant to the

Judicial Councils Reform and Judicial Conduct and

Disability Act of 1980. 28 U.S.C. ** 351-364.

Complainants, pro-se litigants, allege that the district

judges assigned to their case violated a “mandatory

nondiscretionary duty” to vacate an allegedly void state

court judgment. The judge denied their motions under

Federal Rules of Civil Procedure 60 (b) and dismissed

the action. Complainants contend that the chief district

court judge ignored their requests that he intervene and

require the first judge to fulfill her “duty.” They also

claim that the assigned Judge delayed in ruling on their

motions and that their case was on file for four months

with no relief. Complainants’ exhibits and the case

A-6 -1

Pe a ee ee ee ee ee ae ee Te

, a . an ee, ae le ee le ee

cket sheet have been carefully reviewed.

‘his complaint relates to the assigned judge’s rulings

d decisions in complainants’ case, and to the chief

strict judge’s failure to intervene. A complaint will be

smissed if it is directly related to the merits of a

ige’s ruling or decision in the underlining case. 28

S.C.* 352(b) (1) (A) (ii) ; Misconduct Rule 4 (c) (1). A

allenge to a judge’s rulings should be sought through

2 correct review procedure and not through the

ocedures of judicial misconduct. See In re Charge of

dicial Misconduct, 685 F. 2d 1226, 1227 (9% Cir. Jud.

yuncil 1982) (Lf complaint wants to challenge the

ige’s rulings, correct review procedure, “not the

ocedures for judicial misconduct, [is] the proper

medy.”) Only a court has the power to change a

cision or ruling. The Judicial council, the body that

ses action under the misconduct complaint procedure,

es not have that authority. Complainants have filed

appeal. Charges related to the judges’ rulings and

cisions are, therefore, dismissed.

urthermore, complainants cannot challenge alleged

lay under the misconduct procedures unless the

cumstances are extraordinary, as “where the delay is

bitual, is improperly motivated or is the product of

proper animus or prejudice toward a particular

igant, or possibly, where the delay is of such an

traordinary or egregious character as to constitute a

ar dereliction of judicial responsibilities.”

ymmentary on Misconduct Rule 1. Such is not the

COMPLAINT DISMISSED

s/

Chief Judge

A-6 -2

FILED

OCT. 19 2006

Cathy A. Catterson, Clerk

US. Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: KIRK L.WHITCOMBE | No. 06-73746

In re: SUSAN L. WHITCOMBE |

| D.C. No CV-06-00374-

Petitioners, | ROS

KIRK L. WHITCOMBE; et al., |

Petitioners,

¥.

UNITED STATES DISTRICT |

COURT FOR THE DISTRICT OF |

ARIZONA, l

|

Respondent, |

LARRY HENAK et al.,

|

|

|

Real Parties in Interest.

|

Before: TASHIMA, W. FLETCHER and BERZON,

Circuit Judges.

Petitioner has not demonstrated that this case

A-7 -1

Sf =

Q

tants the intervention of this court by means of the

‘aordinary remedy of mandamus. See Bauman v.

ted States District Court, 557 F.2d 650 (9 Cir. 1977).

ordingly, the petition is denied.

o motions for reconsideration, modification, or

ification of this order shall be filed or entertained.

A-7 -2

wo

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF ARIZONA

Kirk & Susan Whitcombe, ) No. CV 06-0374-PHX-ROS

Husband and Wife, )

) ORDER

Plaintiffs,

Larry Henak and Susan

Henak, Husband and Wife

Defendants.

a ae a

Pending before the Court is Plaintiffs Motion to Vacate

(Doc.# 28). For the following reasons, this motion will

be denied.

A pro se litigant “must follow the same rules of

procedure that govern other litigants.” King v Atiye, 814

F.3d 565, 567 (9% Cir. 1987). The Court has already

entered a judgment of dismissal of Plaintiff's action,

denied his motion for reconsideration, and denied his

petition for mandamus. The Ninth Circuit Stated that

“InJo motions for reconsideration, modification, or

clarification of this order shall be filed or entertained.”

Plaintiff no files this Motion to Vacate under Rule 60(b)

arguing “mistake, inadvertence, excusable neglect,

newly discovered evidence, and fraud upon the court.”

The Court has already ruled on Plaintiff's Rule 60

motion, finding his claims meritless. The Court will not

entertain another Rule 60 (b) motion based upon the

A-8 -1

(De

» claims.

> Court will not sanction Plaintiff at this time but

is Plaintiff that no further motions shall be filed.

Court has already entertained Plaintiffs motion for

sideration and the Ninth Circuit has denied his

al. This case is closed. Sanctions will be imposed if

tiff files any additional motions.

cordingly,

- IS ORDERED that Plaintiffs Motion to Vacate

. 28) is DENIED.

DATED this 4% day of December, 2006.

s/

Roslyn O. Silver

United States District Judge

A-8 -2

FILED

JAN 18 2007

Cathy A. Catterson, Clerk

US. COURT OF APPEALS

JUDICIAL COUNCIL

OF THE NINTH CIRCUIT

IN RECOMPLAINT OF | No. 06-89062

|

JUDICIAL MISCONDUCT |

Before: KOZINSKI, THOMPSON, GRABER,

WARDLAW and BERZON, Circuit Judges, and

BREYER, HATTER, MOLLOY and WINMILL

District Judges.*

Pursuant to Chapter III of the Rules of the

Judicial Council Governing Complaints of Judicial

Misconduct or Disability under 28 U.S.C. * 352(c),

complainant has filed a petition for review of the order

of the Chief Judge entered on September 29, 2006,

dismissing the complaint against two distrtict judges.

We have carefully reviewed the record and the

authorities cited by the Chief Judge in her order of

dismissal. We find no basis for overturning the order of

For the reasons stated by the Chief Judges and based

upon the controlling authority cited in support thereif,

A-9 -1]

tS

e affirm

lon. Roger G. Strand did not participate in the

msideration of this matter

A-9 -2

FILED

JAN 26 2007

Cathy A. Catterson, Clerk

U.S.COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIRK L. WHITCOMBE; et al, | No. 06-16488

|

Plaintiffs-Appellants, | D.C. No. CV-06-

| 0374-ROS

Vv. | District of Arizona

| Phoenix

LARRY HENAK, Husband; etal, |

| ORDER

Defendants - Appellees. |

|

Appellants’ “motion for court to resume appeal”

received on December 12, 2006, is construed as an

amended notice of appeal from the district court's

December 4, 2006 order4. Appellants may file a

supplemental opening brief no later than February 28,

2007. This case will be ready for calendaring upon

receipt of the supplemental opening brief or upon the

expiration of time to file the supplemental opening brief.

For the Court

s/

Allison Taylor

Motions Attorney / Deputy Clerk

Hh Cit. R. 27-7

General Orders/ Appendix A

A-10 1

ND $e

Aw |

FILED

JULY 16, 2007

Cathy A. Catterson, Clerk

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

K L. WHITCOMBE; et al, | No. 06-16488

|

Plaintiffs - Appellants, | D.C. No. CV -06-

| 00374 - ROS

| MEMORANDUM

RRY HENAK, Husband; et al., |

|

Defendants - Appellees. |

|

Appeal from the United States District Court

For the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Submitted July 9, 2007**

ore: LEAVY, THOMAS, and BERZON, Circuit

ges.

his disposition is not appropriate for publication and

ot precedent except as provided by 9 Cir. R. 36-3.

This panel unanimously finds this case suitable for

ision without oral argument. See Fed. R. App. P.

a)(2).

A-ll -]

Kirk and Susan Whitcombe appeal pro se the dismissal

of their action seeking to set aside orders issues by

Washington state courts in three cases arising out of a

boundary dispute between the Whitcombe’s and their

neighbors, Larry and Susan Henak. We have

jurisdiction pursuant to 28 U.S.C. * 1291. We affirm.

United States district courts lack authority to review

final judgments of state courts acting judicially; such

review may only be had in the United States Supreme

Court. See Dist. Of Columbia Court of Appeals v. Feldman,

460 US. 462, 482 (1983). The Rooker - Feldman doctrine

thuse bars cases such as the Whitcombes’: “cases

brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the

district court proceedings commenced and inviting

district court review and rejection of those judgments.”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 US. 280,

284 (2005). Dismissal was proper.

The district court also properly denied the

Whitcombes’ numerous motions seeking

reconsideration, vacatur of the judgment, and leave to

refile.

AFFIRMED.

A-11 -2

FILED

AUG 24 2007

Cathy A. Catterson, Clerk

U.S.COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIRK L. WHITCOMBE; et al, | No. 06-16488

|

Plaintiffs-Appellants, | D.C. No. CV-06-

| 0374-ROS

v. | District of Arizona

| Phoenix

.ARRY HENAK, Husband; etal, |

| ORDER

Defendants - Appellees. |

|

}efore: LEAVY, THOMAS, and BERZON, Circuit

udges.

The Panel has voted to deny the petition for panel

vearing.

The full court has been advised of the petition for

ehearing en banc and no judges has requested a vote on

whether to rehear the matter en banc. See Fed. R. App.

”, 35.

The petition for panel rehearing and the petition for

ehearing en banc are denied.

No further filings will be accepted in this closed case.

A-12 -1]

Kirk & Susan Whitcombe- Pro - Se’s FILED

3303 West Twain Court April 11, 2006

Anthem, AZ 85086 (per court

(623) 551-3900 Home Phone and fax docket sheet)

Whitcombe@qwest.net email address.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kirk & Susan Whitcombe ) CASE NO. CV’06 0374 PHX

Husband and Wife

Plaintiff's

Larry & Susan Henak,

Husband and Wife

Defendant's

) ROS

)

) CIVIL RULE 60 MOTION

) FOR RELIF FROM

) JUDGMENT NOT

) OPERATING - LACKING

) SUBJECT MATTER &

) PERSON MATTER

) JURISDICTION -PROCURED

) BY FRAUDS - SATISFIED

) 1997 BY EXTORTIONS &

) FRAUD- CONSPIRACY

) WITH INTENT TO

) OBSTUCT DUE COURSE

) OF JUSTICE 1997-2005 -

) STATE OFFICIALS

) ACTING WITH PRIVATE

) INDIVIDUALS

) IMPLICATED

)

) DECLARATION

) ATTACHED

A-13-1

)

) REPORTING CRIMINAL

) ACTIVITES TO THE

) COURT,18 USC 4 & 18

) USC 2

)

1, JURISDICTION

| Jurisdiction under Federal Civil Rule 60 to vacate a

‘id judgment is inherent.

2 A void judgment entered by a court which lacks

risdiction over subject matter, or lacks inherent power

enter the particular judgment, or an order procured

fraud, can be attacked at any time, in any court, either

rectly or collaterally, provided the party is properly

fore the court. Long v. Shorebank Development

orp., 182 F. 3° 548 (C.A. 7 Ill. 1999). Emphasis added.

3 A void judgment is one which has no legal force or

fect, invalidity of which may be asserted by any person

hose rights are affected at any time and at any place

rectly or collaterally. Reynolds v Volunteer State Life

s. Co. Tex. Civ. App., 80S.W. 2d 1087, 1092. Blacks

iw Dictionary 6 Edition, p. 1574.

4 Where CR60 (b) (4) is properly invoked on the basis

at the underlining judgment is void, “relief is not a

scretionary matter, it is mandatory.” Omer v Shala, 30

3d 1307, 1310 (10 Cir.1994) (quoting V.T.A., Inc. v.

irco, Inc., 597 F. 2d 220, 224 n.8 (10% Cir. 1979)

5 14% Amendment Due Process and Equal Protection

larantees.

A-13-2

1.6 Federal rule CR 60 Relief from Judgment or Order.

CR60(b)(4) Motion to Vacate Void Judgment, Federal |

Rule 60(b)(5) the judgment has been satisfied, released,

or discharged, or prior judgment upon which it is based

has been reversed or otherwise vacated, and CR60(b)(6)

any other reason justifying relief from the operation of

the judgment.

1.7 28 USC 1332 Diversity of citizenship; amount in

controversy; costs. (a) The district courts shall have

original jurisdiction of all civil actions where the mater

in controversy exceeds the sum or value of $75,000,

exclusive of interests and costs, and is between (1)

citizens of different States

1.8 28 USC 1331, the district courts shall have original

jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.

1.9 28 USC 1343 Civil rights and elective franchise

(1),(2),(3)& (4).

1.10 42 USC 1981 Equal rights under color the law,

1.11 42 USC 1982 Property rights of citizens,

1.12 42 USC 1983 Civil action for deprivation of rights;

1.13 42 USC 1985 Conspiracy to interfere with civil

rights, (2) Obstructing justice, (3) Depriving persons of

rights and privileges.

1.145 U.S.C. 702 Right of review. “A person suffering

legal wrong because of agency action, or adversely

affected or aggrieved by agency within the meaning of a

A-13-3

elevant statute, is entitled to judicial review thereof.”

11. VENUE

.1 Venue to vacate a void judgment under Federal Rule

0 and as interpreted by cited case laws is any location

vhere a Federal District Courts is located.

..2 [“Where federally protected rights have been

nvaded, it has been the rule from the beginning that

‘ourts will be alert to adjust their remedies so as to grant

he necessary relief” Bell v. Hood., 327 US. at 684

footnote omitted); see Bemis Bros. Bag Co. v. United

tates, 289 U.S. 28, 36 (1933) (Cardozo, J.); The Western

Maid, 257 U.S. 419 (1922) (Holmes, J.)]” Bivens v Six

Jnknown Named Agents of the Federal Bureau of

Narcotics 403 U.S. 388 (1971).

111. RELIEF REQUESTED

3.1 Plaintiffs Kirk and Susan Whitcombe, husband and

wife move the above - entitled Court for entry of order

Vacating the Henak v Whitcombe judgment No. 95-2-

)2783-1SEA, entered against Whitcombe’s by

Washington State King County Superior Court on

september 20, 1996, Ex. 17, staying enforcement of four

udgments based on the Henak v Whitcombe judgment

Ex’s 31, 62, 67 and 75, until the motion can be heard, and

or further relief as follows;

3.2 Pursuant to Federal Rule 60(b) (4) the judgment is

void;

3.2.1. For entry to Show cause directing Defendants to

appear in response to this Motion; and setting

reasonable return date and other hearing or trial dates as

A-13-4

shall be deemed appropriate for the purpose of

considering the issues raised by this Motion. |

3.2.2. For recovery of the Henak v Whitcombe judgment

Ex.17, in Henaks favor against Whitcombe’s, for all sums

paid to Henaks in satisfaction of King County Superior

Courts earlier judgment, entered September 20, 1996,

plus statutory interests, or for other appropriate Order

of restitution to Whitcombes for monies paid to Henaks

pursuant to said judgment.

3.3 Pursuant to Federal Rule 60(b)(5) the judgment has

been satisfied, released, or discharged, or prior

judgment upon which it is based has been reversed or

otherwise vacated, for entry of order vacating the four

Judgments rendered based upon the Henak v

Whitcombe judgment; (1) CR60(b)(4) & (11) Motion -

Filed 11/5/99, dismissed 1/3/00, as Res Adjudicate and

frivolous, additional sanctions, Ex. 31, (2)

CR60(b)(4)(5)(11)( c)(e)(1)(2) Motion - Filed 8/23/02,

dismissed 2/20/2003 nunc pro tunc to January 3, 2003, as

Res Adjudicate and frivolous, additional sanctions, Ex.

67, (3) State Court of Appeals Unpublished Opinion No.

52005-9-1 Consolidated w/ No. 52170-5-1, decided

5/10/04, placing additional sanctions. Ex. 75 (4)

Whitcombe v Washington State, filed 2/13/01,

dismissed Nov. 1, 2002 because “The courts lack subject

matter jurisdiction and Plaintiff's have failed to state a

claim” with prejudice and sanctions. Ex. 62.

“To punish a person because he has done what the

law plainly allows him to do is a due process

violation of the most basic sort.” Bordenkircher v

Hayes, 434 US. 357, 363 (1978) (quoted in BMW at 517

US. at 573 n.19)

A-13-5

3.4 Pursuant to CR60 (b) (6) for any other reason

justifying relief from the operation of the judgment;

3.4.1 Pursuant to State of Washington Rule 60 RELIEF

FROM JUDGMENT OR ORDER, Ex. 151, and RCW 4.72

VACATION AND MODIFICATION OF JUDGMENTS,

Ex. 101; for entry to provide order for a new civil trial in

the Henak v Whitcombe case with a leave to amend to

add new causes of action and parties with court

appointed counsel as federal and state case law provides

in situations as stated in Whitcombe’s pleadings in State

court Whitcombe v Washington State, but denied, Ex. 53

& 56, pp. 4-6. Relevant State Case law supporting new

rial is cited in Whitcombe’s 24 CR60 Motion, Ex. 57,

D.12.

3.4.2 Pursuant to 18 USC 4 Misprision of felony and 18

USC 2 Principals, (Aiding and Abetting/ Accessory in

the commission of crimes), for entry of order to appoint

special prosecutor to investigate Whitcombe’s

allegations of witnessing criminal actions identified in

this instant Motion by certain State and local county

pfficiais in conjunction with Henaks and other private

sectors acting under color of, but in violation of state

laws committing;

FRAUDS - 18 USC 1001 Chapter 47 - Fraud and False

Statements, 18 USC 1028 Fraud and related activity in

connection with identification documents and

information.

EXTORTION - pursuant to 18 USC 1951 Interference

with commerce by threats or violence (2) and pursuant

to Extortion - 18 USC 880 Receiving the proceeds of

extortion.

A-13-6

CONSPIRACY - pursuant to 18 USC 241 Conspiracy

against rights, by State and local county Officials and

agencies acting in conjunction with Henaks and other

named private sectors, “acting under color of, but in

violation of State laws”, defending the Henak v

Whitcombe judgment, depriving Whitcombes of their

Rights pursuant to 18 USC 242 Deprivation of rights

under color of law.

IV MEMORANDUM

4.7.1 Federal case law supporting vacating void

judgment is found cited in JURISDICTON, 1.1, 1.2, 1.3,

1.4.

4.7.2 Res ajudicata consequences will not be applied to a

void judgment which is one which, from its inception, is

a complete nullity and without legal affect. Allcock v.

Allcock, 437 NE, 2d 392 (ILL App 3 Dist. 1982). See also

State Supreme Court - Docket # 76480-8, filed

03/09/2006, Ex. 86

4.7.3 Pursuant to State of Washington CR60 (b) (5)

Vacating void judgment, “The court has a

nondiscretionary duty to grant relief when a judgment is

void, Re Mayfield, 47 Wash. App 699 (1987).”

4.74 Washington State CR60(b)(4) Fraud, expressly

provides for the re-opening and vacations of judgments

which are, in any material manner, based upon fraud,

musrepresentation or other misconduct of an adverse

party, Seals v. Seals 22 Wash. App. 652 590 P.2d 1301,

(1979). In such instances, a concrete showing of all of the

nine elements of common law fraud is unnecessary.

A-13-7

7.5 Pursuant to the policy enunciated in RCW 4.72.080,

new trial should be proper in the administration of due

nurse of justice in the Henak v Whitcombe case in a

ifferent state away from Judges in Washington State.

V. CONCLUSION

Whitcombe’s Rights were repeatedly violated by

lenaks, Kitz, Misterek interaction in with State and

cal King County Officials and agencies acting under

olor of, but in violation of State laws, in creating; false

urvey practices, the false Henak v Whitcombe case and

idgment, obtaining Whitcombe’s land and money by

raud and extortion, and conspiracy with intent to

bstruct due course of justice in the Henak v Whitcombe

ase from 1995 - 2006. Accordingly, Whitcombe’s

notion this Honorable court for the 111. RELIEF

,EQUESTED in this Motion.

DATED this 10th day of April 2006

/ s/

“irk L Whitcombe - Prose Susan L Whitcombe - Pro se

A-13-8

Kirk & Susan Whitcombe- Pro - Se’s FILED

3303 West Twain Court April 11, 2006

Anthem, AZ 85086 (per court

(623) 551-3900 Home Phone and fax docket sheet)

Whitcombe@qwest.net email address.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kirk & Susan Whitcombe ) CASE NO. CV’06 0374 PHX

Husband and Wife ) ROS

)

) KIRK WHITCOMBES’

) DECLARATION IN

Plaintiff's ) SUPPORT OF FEDERAL

) RULE 60 (b) (4)(5) & (6)

) MOTIONS FOR RELIEF.

Larry & Susan Henak, _)

Husband and Wife )

)

Defendant's )

Declarant, Kirk Whitcombe, states as follows under

penalty of perjury under laws of the United States, State

of Arizona and State of Washington.

1. I, Kirk Whitcombe am one of the Plaintiff's in the

above entitled action. | am of legal age, competent to

testify concerning the following and declare the

following based upon my personal knowledge.

References are made herein to “we” or “us” or “our” is

to Plaintiff's Kirk L and Susan L Whitcombe, husband

and wife;

A-13-9

Logging Inc., (NBL), our State Licensed Corporation, to

build a permanent 1600”, staked mapped, proposed

maintenance road under contract with us on our six

acres where we lived, and conducted NBL business in

rural King County. Ex. 7. We also intended the road for

our future home site. 1999 Declaration. Ex. 2B.

We were on our own land building the road, as the State

permit provides. We did not trespass as determined by

where the Short Plat originally established the common

boundary line. Hancock Declar., Ex. 27, P.5, which fact

of record is undisputed.

4. A 1997 King County Assessors Map, Ex. 18, shows

where the 1979 Short Plat, “KCSP No. 1278085” located

its common boundary line between Henaks and

Whitcombe’s. Henaks land parcel is the most westerly

lot # 1, inside the Short Plat. Whitcombe’s land parcel is

adjacent and to the west, outside the Short Plat,

A-13-10

identified as “6.24 Ac.” sharing the same common

boundary line. the Henak v Whitcombe judgment in

contrast, on its face of record, lacks this needed

disclosure ot operate. and why it can not be recorded in

public records. Ex. 17.

5. NBL, gainfully employing Kirk and Susan Whitcombe

and others since 1988, not being able to finish its

contractual services, was forced out of business.

6. We could not afford to pay for judgment imputed

trespass. In fear of the judgment being enforced we

satisfied the judgments contingencies and sold our land

parcel to the same DNR agency that issues us a permit to

build the road whereas the DNR officers acquired our

land parcel and paid Henaks cash out of the proceeds in

a Lis Pendens PAYOFF settlement action. Ex. 10.

7. When we sold our land to the state and relocated, we

were forced to sell our land where the judgment staked

the common boundary line on the ground by the three

land surveyors because at the time we did not know the

judgment could not operate, was legally ineffective,

lacking subject matter and person jurisdiction, procured

by fraud, and could not be recorded by the local county

auditor pursuant to “RCW 65.04.070 Recording

judgments affecting real property”. Ex. 149. As

revealed per current public land records; (1) April 12,

2005 certified copy of the Short Plat, Ex. 1, pursuant to

“RCW 58.17.290 Certified copy as evidence.” Ex. 141, (2)

our 1997 Statutory Warranty Deed, conveying our land

to the State, Ex. 19, (3) County Assessors 2000 tax rolls,

based upon square footage, of our former land parcel,

Ex. 47, Henaks land parcel, Ex. 48, the Short Plat, Henaks

and Whitcombe land parcels remain unchanged by the

A-13-11

Henak v Whitcombe judgment, confirming State official

acquired our land for the State as its boundaries were

established prior to the judgment, which extra amount

of land is determined by Hancock Declaration and

survey to be 1/3 of an acre more than judgment allowed

us to sell it, Ex. 27.

8. In doing so the state obtained the area of judgment

imputed trespass included as our land parcel, not

Henaks, because the judgment could not operate to

affect current public land records. Henaks have filed no

objections. In other words, the very land we thought we

owned and, in law did rightfully own, we sold to the

State and gave our money to Henaks to satisfy the

State’s false judgment against us through a Lis Pendens

action, Ex. 10, “under color of State law”. We allege this

settlement action by federal legal definition is criminal

Fraud and Extortion as stated in our 111 RELEIF

REQUESTED, also violates Chapter 19.86 RCW Unfair

Business Practices - Consumer Protection Laws, Ex. 114

and other laws.

9. The judgment has not operated, is legally ineffective

since its inception, is false and void. This is confirmed

t to “RCW 58.17.290 Copy of plat as evidence.”

Ex. 141, as disclosed by April 12, 2005 certified copy of

the 1979 Bennett Short Plat, as evidence, Ex. 1, showing

no affects of the 1996 judgments, being recorded with

the King County Auditor, June 1, 2004, eight years after

it was rendered, claiming to have located the Short Plats

NW and SW property boundary corners and common

boundary line. Ex. 17.

10. Henaks never paid taxes on the disputed land, before

or after the judgment as required by state laws, Chapter

A-13-12

7.28, RCW, Ex’s. 105-110. Henaks and their attorney

knew the judgment was not operating, at the time they

accepted our money to satisfy the judgment, in part

because they “mysteriously” had not requested the local

county auditor to perform its duties required by law to

execute the judgment pursuant to “RCW 65.04.070” Ex.

149, until June 1, 2004, as shown on the face of the

judgment. Ex. 17.

11. It is now much too late for Henaks to have their

judgment operate for them even if it could operate after

being recorded, which it has not as confirmed by April

12, 2005 certified copy of the Short Plat, Ex. 1. Pursuant

to KC 19.08.112 boundary line adjustments (c) and KC

19.08.113 Boundary line corrections (c) allow only one

year to be recorded that are approved by the county. Ex.

113.

12 THE COURTS LACK SUBJECT AND PERSON

MATTER JURISDICTION to take first time

applications for boundary line adjustments and

corrections between land owners who had not first

applied for by local counties where the land parcels are

situated. Courts only have jurisdiction to review such

executive branch decisions.

Pursuant to “RCW 58.17.030 Subdivisions to comply

with chapter, local regulations” Ex. 136, (emphasis

added), local regulation KING COUNTY GENERAL

RULES OF ACCEPTABILITY, “KC 19.08.112 adjusting

boundary line” and “KC 19.08.113 boundary line

corrections”, Ex. 113, does. State case law shows courts

not procured and tricked by deceptive frauds will not

intervene. Cited case law in our 2=4 State CR60 Motion to

Vacate Judgment, Ex. 57, p. 5.

A-13-13

13. THE JUDGMENT IS PROCURED BY MULTIPLE

FRAUDS; Henaks, Henaks surveyor, Henaks attorney,

and local King County and State Officials, agencies are

involved in, the reason the judgment has not operated

since its 1996 inception as per decree, but operating

instead as an instrument of fraud and extortion for the

sole benefit of Henaks and State of Washington at the

wholesale cost of our Rights secured by the Constitution

and laws.

13.1 Henaks land surveyors, Mr. Kitz fraudulently

procured advice in 1989 from the Federal Bureau of

Land Management (BLM), on how to accurately locate

and establish property boundary corners and common

boundary lines of existing Surveys of Record, Ex. 3, by

inquiring how to accurately resurvey and retrace

subdivisions of 640 acre Federal sections of land, Ex. 2,

ignoring the written cautions in that advice Ex. 3, to

consider existing surveys in the BLM advised survey

practices. This fact is stated in the BLM’s own words in

their Jan. 16, 2001 letter to Mr. Kitz, Ex. 39 and reflects so

in in Kitz’s Record of Survey. Ex. 8.

13.2 Mr. Kitz also used his procured 1989 BLM advice

incorrectly in his survey practices for Henaks by only

doing a partial resurvey, which misrepresented the

Short Plat and Henaks most westerly lot within to be

smaller than their legal descriptions, when in fact if Mr.

Kitz would have performed his survey practices

following 1989 BLM advice correctly, he would have

caused just the opposite, reducing and relocating the

Short Plat and all of it’s inner lots, including Henaks lot

# 1, in truth, undermining the very purpose of the

Henak v Whitcombe lawsuit and reason for it to even

A-13-14

exist. Hancock Declaration, Ex. 27, p.3, 1% CR60 Motion

to Vacate Judgment, Ex. 28.

13.3 The judgment is procured by fraud practiced in the

trial court by Henaks attorney, Mr. Misterek who

created a false 1995 quitclaim deed that states, without

disclosure, the Short Plat and Henaks inner lot one are

smaller than the area included their legal descriptions.,

Ex. 9, and are therefore entitled to more “unspecified”

land as per judgment unrecorded common boundary

line location between Henaks and Whitcombes. At Mr.

Mistereks request, the King County Auditor recorded

this instrument in violation of “RCW 58.17.190 Approval

of plat required before filing -Procedure when

unapproved plat filed”, Ex. 138, and Mr. Misterek then

submitted this to the county auditor approved and

recorded instrument as prima facie evidence to the trial

court, which was instrumental in procuring the

judgment against us.

13.4 The Judgment, is falsely procured by relying on

four Record of Surveys, Ex’s 6- Chicklero, 8 - Kitz, 11 -

Chicklero Amended, and 15 - Hancock, that on their

faces of record are falsely certified by the three land

surveyors and the local county auditor as Record of

Surveys on their faces pursuant to “RCW 58.09.080

Certificates — Required — Forms”, Ex. 130.

In particular, none of the surveyors survey practices as

reflected in the Record of Surveys on their faces conform

with “RCW 58.09.040 Records of survey == Contents —

Filing — Replacing corner, filing record”, Ex. 127. This

part of the Survey Recording Act, Public Disclosure

Law, requires surveyors in their survey map intended

for public use mandatory disclose the affects their

A-13-15

survey practices have on existing surveys to show what

they are doing is not violating existing laws regarding

surveys, subdivisions, platting, boundaries, the Survey

Recording Act supplements, “RCW 58.09.010 Purpose —

Short Title”, Ex. 124. This concept and purpose supports

the same Citizens Bona Fide Property Rights concerns as

Federal 43 USC 772 Ex. 156, and BLM with supporting

state case law,

“A government resurvey can not disturb title which

parties have acquired up to the time it is made.”

Bently v Jenne, Wyo. 1925, 236 P. 509, 33 Wyo 1.

“140413 43 USCA 772.

The State Attorney General “in writing” fully supports

the Survey Recording Act, Public Disclosure Law, AGO

1971, No. 26, Ex. 153, and pursuant to RCW 43.10.030(5),

Ex. 123, and Ex. 152, has created AGLO 1980, No. 31 and

AGO 1989, No. 1, Ex’s 154 & 155, for legal direction

specifically for government officials and agencies having

a statutory duty to execute RCW 58.09.040, Ex. 127

Because the judgment and survey practices on their

faces of record do not comply with RCW 58.09.040 as

required by state law, they also do not comply with

other state laws of the Survey Recording Act; Ex’s 124-

132, RCW 58.09.010, 030, 050, 060, 080, 110, 140, nor do

the judgment and survey practices comply with other

existing laws regarding surveys, subdivisions, platting,

boundaries, the Recording Act, supplements pursuant to

RCW 58.09.101 Purpose - Short Title; Ex. 124, Chapter

58.17 RCW - Ex’s 133-142, Chapter 58.24 - Ex’s 143-145,

Chapter 65.04 RCW - Ex’s 146-149, Chapter 332.130

WAC - Ex’s 115-120.

A-13-16

All of these state laws the judgment and survey practices

relied upon are in direct violation of. Without the

Survey Recording Act, Public Disclosure Law being

executed exposing the affects of land surveyors survey

practices on existing surveys, allegedly violating

Citizens Bona Fide Property Rights, there is no way to

confirm this. And this is not just the judgment, rather

most likely state wide regulated survey practices the

judgment is enforcing.

13.5 The State Board of Registration for Professional

Engineers and Land Surveyors has negligently and

falsely approved of Mr. Kitz’s survey practices in two

adjudicative proceedings pursuant to “RCW 58.09.140

Noncompliance grounds for revocation of land

surveyor's license”, Ex. 132. One proceeding was before

the judgment, 1995-1996, Ex’s 12, 13, 14 & 16 and one

was after the judgment in 1999-2000, Ex’s 30, 32, 33, 34,

with both conclusions approving and commending Mr.

Kitz for obtaining BLM advice, accurately following it

and promoting other land surveyors to follow, Ex. 4 & 5.

14. Pursuant to “RCW 5.44.070 Certified copies of

instruments” Ex. 104, all courts involved in this case

accepted the four Record of Surveys as “ prima facie”

evidence under “State Due Process of Law”. Our fate

and State falsely approved survey practices has been

sealed “under color of, but in violation of State Laws”.

15. CONSPIRACY After the judgment was satisfied by

Henaks and State officials to their best interests, Henaks,

Kitz, Transnation Title Insurance Co., Misterek, State

and local county officers, agencies representing the State

of Washington's and Henaks best interests; impeded,

hindered, obstructed, and defeated due course of justice

A-13-17

in the Henak v Whitcombe case 1998-2006 in alleged acts

of ira

15.1 This conspiracy action started after Mr. Misterek

under Henaks direction, successfully practiced fraud in

the trial court, obtaining a judgment in his clients,

Henaks favor, practices fraud again in the court of

Appeals for Henaks in support of the fraud he practiced

in the trial court as explained in our State CR60 Motion

REPLY TO RESPONSE, Ex. 29, falsely procuring the

Court of Appeals April 27, 1998 Unpublished Opinion,

No. 39547-5-1, as disclosed in Ex. 22, pp. 6 & 7.

15.2 October 1999, we discovered Mr. Kitz used 1989

BLM advice incorrectly in his survey practices

misrepresenting the actual legal size of the Short Plat

and Henaks most westerly inner lot within, that if

implemented correctly would have reduced the Short

Plat and its inner lots in size and relocated them,

denying the purpose for the Henak v Whitcombe case.

Ex. 27,5. D, p.3. When we produced this evidence to

King County Superior Court in our 1* CR60 Motion to

Vacate the judgment, Ex. 28, the judges assigned to the

case, not the original pro-tem judge who heard and tires

the case in 1996, which we asked for, dismissed the

action; Res Adjudicate, “frivolous”, placing additional

sanctions on us, 1/3/2000, Ex. 31.

In defense to support the judgment is legal, Mr.

Misterek conceals he and Henaks knew the Judgment

was not operating, yet was satisfied by Henaks and State

officials. Mr. Kitz was also notified by the BLM in

August of 1999 his survey practices were fraudulently

procured from the BLM, violating Citizens Bona Fide

Property Rights. BLM’s later January 16, 2001 letter.

A-13-18

Page 2, Ex. 39.

15.3 We produced the same facts and supporting

information in our 2™4 complaint of Mr. Kitz’s same

survey practices to the State Board of Registration for

Professional Engineers and Land Surveyors on

November 11, 1999, Ex. 30. In response to their

information and Mr. Kitz’s response, Ex. 32, the Board

adjudicated and dismissed the complaint, Ex. 33 & 34

commending Kitz for having procured BLM advice and

accurately following, as the Board did in its 1995

investigation, again violating it’s statutory duties

pursuant to RCW 58.09.140, obstructing our due course

of justice and promoting false survey practices that is

allegedly violating Citizens Rights in the process.

15.4 January Of 2001 we discovered Mr. Kitz falsely

certified his survey practices conform with the

requirements of the Survey Recording Act on the face of

his survey map pursuant to RCW 58.09.080, Ex. 130. We

filed our third complaint with the Board about Mr.

Kitz’s same survey practices, January 5, 2000, informing

the Board and other Agencies and officers, including the

BLM as indicated on the bottom of page 3, Ex. 36, the

Board acknowledged receiving the complaint, Ex. 37.

The BLM immediately responded with its January 16,

2001 letter, Ex. 39. The Board refused to conduct and

investigation, dismissing our request. Ex. 40.

15.5 Feb. 13, 2001 we filed our Okanogan Superior Court

“PETITION FOR REVIEW OF STATE AGENCY” Ex. 42,

and later, January 16, 2002 after additional discovery,

our AMENDED PETITION, Ex. 52 because King County

Risk Management and Prosecutor would not perform

their statutory duties requiring the County Auditor

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perform its statutory duties in executing the Survey

Recording Act, all past and present actions brought

pursuant to,

“RCW 34.05.570 Judicial Review (4) Review of other

agency action (b) A person whose rights are violated

by and agency's failure to perform a duty that is

required by law to be performed may file a petition

for review pursuant to RCW 34.05.514 seeking and

order pursuant to this subsection requiring

performance.” Ex. 121.

PLUS we made allegations the State Attorney General

is representing and defending it’s inferior high ranking

officers and agencies delinquent interests instead of the

AG performing its statutory duties pursuant to RCW

43.10.030. (2) Ex. 123, requiring the delinquents perform

their statutory duties required by law to be performed.

The case was dismissed after many of our motions

were denied on the AG proposal with prejudice and

sanctions by Okanogan Superior Court Nov. 1, 2002, on

ds, “The courts lack subject matter jurisdiction and

Plaintiff's have failed to state a claim.” , Ex. 62, without

explanation. The Legislature can’t make a law requiring

the Judicial Branch render an Order requiring the

statutory duties of the Executive Branch be performed ?

Plaintiff's claim their Bona Fide Property are being

violated is not a right secured by the Constitution and

laws ? We filed our appeal 11/28/2002. Ex. 63.

Designated Clerks Papers missing.

Judge never reviewed file before rendering decision.

Appeal delayed because of government false document,

all explained. Ex. 73. The Court of Appeales, Div. 111,

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January 25, 2005, Case No. 21637-3 Unpublished

Opinion, Ex. 80, confirmed the trial court, denying our

Motion for Reconsideration, Ex. 81, April 1, 2005. Ex. 84.

15.6 May 2, 2002, one year after we discovered Mr. Kitz

falsely certified his survey map as a Record of Survey,

fraudulently procured BLM advice, allegedly procuring

the Henak v Whitcombe judgment with fraud, we filed

the Whitcombe v Kitz case, Cause No. 02-2-074111-

1SEA, Ex. 54. The case was dismissed with prejudice

and sanctions for being beyond the three year statute of

limitations “Defendants claims if any survive this

ruling”. Ex. 64.

15.7 August 23, 2002 we filed our second CR60 Motion

For relief from the Henak v Whitcombe judgment,

alleging the judgment has rot operated since its

inception, lacks subject matter jurisdiction, and is

procured by fraud based upon our discoveries in 2001,

Ex. 57, Under protest, the Chief Civil Judge heard and

tried our motion after we had already arranged for the

original Pro-Tem judge to hear and try the Motion. Ex.

69. The case was heard and tried anyway by the Chief

Civil Judge who dismissed the case February 20, Nunc

Pro Tunc to January 3, 2003 as being Res Adjudicate,

frivolous, placing additional sanctions on us. Ex. 67.

The Court of Appeals Div. 1 consolidated our 2™ Motion

to Vacate Judgment with the Whitcombe v Kitz case

whereas the Court of Appeals confirmed both lower

court decisions May 19, 2004, Unpublished Opinion

placing additional sanctions on us. Ex. 75.

We filed a Petition for Discretionary Review, Ex. 76.

The State Supreme Court rendered and Order March 1,

2005 “Petition for Review is Denied”, Ex. 82, knowingly,

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as of record, leaving the Henak v Whitcombe judgment

yoid and without finality, operating as a fraud and

extortion in law.

to protect our rights secured by the Constitution, but

they all refused. They are identified with their written

correspondences in Ex. 85.

DATED this 10% day of April 2006

"| anne eS ;

Kirk L Whitcombe Susan L Whitcombe

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