Petition for Writ of Certiorari — McLeod v. Michigan Department of Treasury (No. 08-1105)

Vv | Supreme Court, U.S.

\ FILES

081105 DEC 5 ~ 2008

OFFICE OF THE CLERK

Oo.

IN THE SUPREME COURT OF THE UNITED STATES

John Michael McLeod,

Petitioner,

a

MICHIGAN DEPARTMENT OF TREASURY

Respondent,

On Writ Of Certiorari to

The Supreme Cour of Michigan

BRIEF FOR THE PETITIONER

John Michael McLeod

1900 Loomis Rd.

Jackson, Michigan 49201

(517)262-2796

In Propria Persona

QUESTION PRESENTED

Question 1.

Is the seizure of 100% of a person’s wages without due

process a violation of the IV, V & XIV amendments of the

Constitution of the United States ?

li

TABLE OF CONTENTS

Page

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JURISDICTIONAL STATEMENT ......ccccccsccccccccsesessors 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...............00se0000 2

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A. Statutory Background................cceeeee 4

B. Factual Background......................cssee0 5

C. Proceedings in Michigan Court

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D. Proceedings in Michigan Court

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E. Proceedings in Michigan Supreme

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F. Decision from Michigan

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INTRODUCTION and SUMMARY of ARGUMENT

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TABLE OF CONTENTS-continued

Page

I. THE MICHIGAN DEPARTMENT OF

TREASURY FAILED TO COMPLY

WITH CONSTITUTIONAL, STATE

PPT PIPE, BAW Giincicisccesssvseccncsssscsiivnssversece 9

Il. THE MICHGAN COURT OF APPEALS

FAILED TO COMPLY WITH THE

CONSTITUTION IN HEARING THE

CASE AS PRESENTED vncrccccessscesecsvesscsesssvessovssces il

li. THE MICHGAN SUPREME COURT

FAILED TO COMPLY WITH THE

CONSTITUTION IN HEARING THE

CASE AS PRESENT ED....cccccccscssscssccseseceseseseoovens 1}

IV. ALL PARTIES INVOLVED VIOLATED

THEIR OATHS OF OFFICE. ..............ccccssesesseeees 12

V. THIS COURT SHOULD DIRECT THE

MICHIGAN SUPREME COURT TO GRANT

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iv

TABLE OF AUTHORITIES

CASES Page(s)

Bivens v. Six Unknown Fed Narcotics Agents,

Oe Me 8 asa sits iccatnnvcanstersecscinsancsedenssoncescassies 10

Bushmann v. Schweiker,

ee tN Ooi og ge cavcewtinensncetncavabicsvinensvevadeeies 13

Coe v. Armour Fertilizer Works,

BF a aaa iis van biccdesudonevisioesioven: 5

Federal Maritime Commission vs. South Carolina State Ports

et al. Certiorari tothe United States Court of Appeals May

ies tie aalhcchisiehiacas deguasaieehicniresictksnadiesstevenvaciasaniosion 10

GREGORY vs. HALVERING,

EF Ae ly WIRD Pees csnhedav ier sincassnececeniscdsnserviesesvnviesors > 9

Haines v. Kerner, ET AL,

404 U.S. ,519, 92 S. Ct. 594, 30 L.Ed. 2d 625..

Marbury vs. Madison,

re eI res Hvccnkcdceni'sd enadod waa ckdninindsiansasnieiens 11

Ruff v. Issac, Michigan Court of Appeals,

gO SLEDS 35 UPA NOTE BORE EC EE Ee PT

Snidach v Family Finance Corp.,

ee I siti sliciicebsh cudsuvadiacsanennvseninacieacessennied 5, 10

STATUTES AND REGULATIONS

I is ss a cetoena laced 6

SN ahaa esc caticanas uccencssierennsnuncarsananiinate |

Pe Tee ee re Oe I siiiporn eins tess espticdbiereivicchanies l

Coasrt OF CURIS FICE GIO. G4 SAF, 0... cciccesscscssssescoccsnsecseescevenss 6

Revised Judicature Act of 196]

Act 236 of 1961 secs 600.6231 & 4035... ee. 10

ee ods suirchaa angssdaousasebedmansevesi 19

I Gs AN WD a cccsnscssdcadcdasccoudsacerncessecasts a etrolanare 6

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Vv

TABLE OF AUTHORITIES-continued

Page(s)

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MCR 7.101(B)(1)(b)............... PRE ER en NM eee 1}

WT DI oi ccnenstisnicnoirusvadiusweneseurekecendcces 15

I ee EE isa isk ti sans ceawianscsddsnccacitoiseniss ae era 7

MCLA Constitution Article 6 Sec. 6..............c.ccceeeee 3

BRIEF FOR PETITONER

OPINIONS BELOW

The opinion of the Michigan Supreme Court appears to

be missing the requirements by law. The Petitioner only

received notices of Orders signed by the Clerk of the

Michigan Supreme Court in thier Denials of the Petitioner to

be heard. Despite requesting a signed opinion by a Judge as

afforded in MCLA Article 6 Sec. 6, the Court ignored

Petitioner’s request. The following is the verbiage from the

first denial of appeal: “On order of the Court, the application

for leave to appeal the September 13, 2007 order of the Court

of Appeals is considered, and it is DENIED, because we are

not persuaded that the questions presented should be

reviewed by this Court.” The second denial read as follows:

“On order of the Court, the motion for reconsideration of this

Court’s March 24, 2008 order is considered, and it is

DENIED, because it does not appear that the order was

entered erroneously.”

JURISDICTIONAL STATEMENT

The final judgement of the Michigan Supreme Court was

entered on September 9, 2008. It was not signed by a Judge

but instead consisted of a Notice signed by their Clerk.

Notice was given to the Michigan Supreme Court of the

intent to file appeal to the Supreme Court of the United

States on September 22, 2008. The violations to Petitioner’s

Constitutional right to due process and the garnishment in

excess of federal limit confer jurisdiction to review a wnit of

certiorari the judgments in question. The Court’s jurisdiction

rests on 28 USC § 1257.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following amendments to the United States

Constitution states in pertinent part:

Fourth Amendment: The right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shal] not be violated..

Fifth Amendment: No person * * * shall be

deprived of life, liberty, or property, without due process

of law...

Fourteenth Amendment: No State shall * * *

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Revised Judicature Act 236 of 1961 secs 600.6231 &

4035 state:

Sec. 623] — Garnishment without order prohibited and

void; notice of order. The garnishment of any money due

or to become due for the personal work and labor of the

defendant upon a judgment made payable in installments

either by the court order or by agreement of parties is

prohibited, excepting upon a written order of the judge.

Any writ of garnishment issued without the order is void.

The order may be made following due notice to the

defendant if installments are due.

Sec. 4035 — An attachement shall! bind goods

and cattels from the time they were attached.

An attachement of realty or any right or interest therein

shall constitute a lien thereon, effective from the time

when a certified copy of the attachment including a

description of the realty shall be deposited in the office of

the register of deeds in the county where the realty is

Situated.

26 USC Sec 6331 Levy and Distraint state in

pertinent part: Notwithstanding * * * such continuous

3

levy shall attach to up to 15 percent of any specified

payment due tothe taxpayer.

5 USC sec 706 Scope of review —

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action.

Act 122 of 1941 sec 21(b) - If the dispute is not resolved

within 30 days....shall give notice to the

taxpayer...... The notice shal! include the amount of the

tax the department believes the

taxpayer owes, the reason for that deficiency, and a

statement advising the taxpayer of a right to an informal

conference, the requirement of a written request by the

taxpayer for the informal conference that includes the

taxpayer's statement of the contested amounts and an

explanation of the dispute, and the 30-day time limit for

that request.

MCLA Article 6 sec. 6 states — Decisions of the supreme

court, including alli decisions on prerogative writs, shall

be in writing and shall contain a concise statement of the

fects and reasonds for each decision and reasons for each

denial of leave to appeal. When a Judge dissents in

whole or in part he shall give in writing the reasons for

his dissent.

STATEMENT

In this case, the Petitioner’s wages were seized for four

continuous months. Despite the Petitioner’s numerous early

attempts to resolve the issue raised by the Michigan

Department of Treasury, the agents of the State ignored the

Petitioner. The Petitioner requested repeatedly for his due

process right of a face to face informal conference through

4

certified mailings prior to seizure. In every instance,

the State of Michigan ignored the Petitioner’s requests.

Ultimately, the State of Michigan seized the Petitioner’s

wages garnishing 100% of his wages for four months. ‘This

action ruined the Petitioner’s financial standing destroying

his family, credit and marriage.

Petitioner made numerous attempts to resolve this

illegeal seizure in the State of Michigan Courts. These

attempts were met with dismissals and the Petitioner was

ultimately denied his right to be heard. Petitioner now

requests the United States Supreme Court to hear this case in

his pursuit of justice and fariness.

A.) Statutory Background

Regarding protection of property from seizure, both the

Constitution of the United States and the Constitution of

Michigan are clear in protecting against illegal seizure. The

V and XIV amendments of the Constitution of the United

States clearly prohibit seizure without due process whicle the

IV protects against unreasonable seizures. Since the State of

Michigan clearly denied the requests by the Petitioner for a

due process hearing prior to seizure of the Appellan’s wages,

the violations of law are against the Constitutional rights of

the Petitioner. Since Marbury v. Madison states:

“Any.....thing in conflict or repugnancy with this

United States Constitution is null and void of Law, it

bears no power to enforce and no obligation to obey, it

purports to settle as if it never existed in Law, for it was

unconstitutional from it's very inception and not from the

date so branding it unconstitutional.

The XIX amendment guarantees equal protection under the

law. Therefore, Act 122 of 1941 must apply both to the

Petitioner and to the State of Michigan.

A legal Warrant-Notice of Levy used in the seizure of

wages must be signed by a Judge as required by law (MCR

3.101, MCR 2.105, ACT 236 of 1961 600.623 1/.4035,

5

Snidach v Family Finance Corp., 395 U.S. In the Snidach

case, the decision was clear:

“ The Idea of wage garnishment in advance of judgment,

of trustee process, of wage attachment, or whatever it is

called is a most inhumane doctrine. It complels the wage

earner, trying to keep his family together, to be driven

below the poverty level. The result is that a prejudgment

garnishment of the Wisconsin type may as a practical

matter drive a wage-earning family to the wall [395 U.S.

337, 342]. Where the taking of one’s property is so

obvious, it needs no extended argument to conclude that

against notice and a hearing (Coe v. Armour Fertilizer

Works, 237 U.S. 413, 423) this prejudgment garnishment

procedure violates the fundamental principles of due

process.”.

The seizure of more than 15 percent of an Petitioner's

wages is not supported by any of the garnishment laws. 26

USC § 6331 allows only up to and not in excess of 15% of

any specified payment due. Since the State’s seizure far

exceeded what is allowed by law, it was done with clear

intent to violate the rights of the Petitioner. All attempts to

resolve these violations after the fact were met with rejection

by the Courts of Michigan.

The Petitioner is guaranted the right to contest the

demand for payment by the state as is allowed by

GREGORY vs. HALVERING, 293 U.S. 465, (1935). By

denying an Petitioner an Informal Conference prior to

seizure, the Michigan Department of Treasury would make it

imposible for a legal resolution to be found prior to seizure.

B.) Factual Background

The State of Michigan scized 100% of Petitioner’s wages

beginning September 1, 2006 through December 31, 2006.

09-Apr-07 Petitioner filed suit in Michigan Court of Claims

against the Michigan Department of Treasury and three

named agents for fraud, denial of due process and for an

6

appeal from a tax hearing determination held only after

illegal seizure of wages (January of 2007). Michigan

Department of Treasury issued levy of 100% of wages in

violation of federal garnishment limit laws (26 USC § 6331

(b)) in a demand for payment and seized Petitioner’s wages

in violation of Petitioner's Constitutional rights of due

process. Petitioner informed the Court that the State failed to

notify and give a hearing prior to seizure of property and

seized 100% of his wages. In error, the Petitioner’s

reference to an appeal from the Tax Tribunal and not the

Informal Hearing that was held after the fact lead to

dismissal.

In the Court of Claims, the Petitioner filed a Motion for

Default Judgment as the Defendants failed to answer timely

taking 29 days for their first response and 35 days for their

second. The time to answer was 21 days (MCR 2.108 &

Court of Claims Act 600.6434). The Court of Claims did not

accept this Motion and instead claimed that the Defendants

answers were timely. Despite the clear violations against the

Petitioner in the seizure prior to a hearing and seizure at

100% of wages, the Court of Claims dismissed the

Petitioner’s case as appealing to the wrong court. When

Petitioner filed a motion for new hearing on 02-Aug-08, the

Court sent notice to the Petitioner dated 16-Aug-07 that the

Order of court dismissing the case on 25-Jul-07 was the final

order.

The cases proceeded as follows:

C. Proceedings in Michigan Court of Claims

1. Court of Claims dismisses initial case on 25-Jul-07.

2. Petitioner filed request for new hearing in Court of

Claims on 02-Aug-07

3. Petitioner received Notice from Court of Claims on 16-

Aug-07 (see exhibit Cl) stating that the final order

disposing the case was 25-Jul-07.

7

D. Proceedings in Michigan Court of Appeals

4.

3.

6.

10.

11.

12.

Petitioner filed an Appeal to Michigan Court of Appeals

on 30-Aug-07.

13-Sept-07 the Court of Appeals dismissed the Appeal as

being filed late.

24-Aug-07 Petitioner filed a motion to reconsider based

on the date of the request for new hearing and the notice

dated 16-Aug-07.

24-Sept-07 the Court of Claims recognized their

oversight of the request for new hearing and held an Ex

parte hearing without notification to the Petitioner to

present the correction of errors (notify the court that the

appeal should have been from informal conference and

not from the Tax Tribunal). Petitioner then received an

order denying Plaintiff's motion for new hearing as being

“denied for the reason that this Court is not convinced

that pursuant to MCR 2.119(F)(3) a palpable error has

occurred and that a different disposition of the motion

must result from a correction of an error.”

04-Oct-07 the Court of Appeals dismissed the Appeal

now as being filed too early based on the FINAL FINAL

decision from the Court of Claims dated 24-Sept-07.

08-Oct-07 Petitioner requested the Court reconsideration

because of the lower court errors should not be used

against the Petitioner (see Haines v. Kerner).

23-Oct-07 Petitioner received an order from the Court of

Appeals denying Motion for Reconsideration.

31-Oct-07 Petitioner filed a Motion to Reinstate the case.

02-Nov-07 the Court of Appeals Clerk answered ““The

Clerk’s Office is precluded form accepting this motion

under MCR 7.215(1)(3).

E. Proceedings in Michigan Supreme Court

13.

04-Dec-07 Petitioner filed in the Michigan Supreme

Court for his day in court.

8

14. 24-Mar-08 The Michigan Supreme Court denied the

Petitioner’s Appeal from the Court of Appeals as: “On order

of the Court the application for leave to appeal is... DENIED,

because we are not persuaded that the questions presented

should be reviewed by this Court”. This order was not

signed by a Judge but instead by the Clerk. It was not a

written statement as required by the Michigan Constitution.

15. 02-Apr-08 Petitioner filed a Motion for Reconsideration

followed on 07-Apr-08 with an Amended Motion for

Reconsideration. In this Motion Petitioner requested a

signed opinion by a Judge which ts required by law

(Michigan Constitution Article 6 sec 6).

F. Decision from Michigan Supreme Court

16. 09-Sept-08 Petitioner received a DENIAL for motion for

reconsideration “...as it does not appear that the order

(entered 24-Mar-08) was entered erroneously.”. Again,

this was not an opinion signed by a Judge but a notice

signed by their Clerk.

Petitioner now comes before the Supreme Court of the

United States to address the wrongs that have befell him in

the State of Michigan.

9

INTRODUCTION and SUMMARY ARGUMENT

ARGUMENT

1. THE MICHIGAN DEPARTMENT OF

TREASURY FAILED TO COMPLY WITH

CONSTITUTIONAL, STATE AND

FEDERAL LAWS

When agents of the Michigan Department of Treasury

failed to notify and offer an informal conference, they did so

in violation of their existing procedural laws. Furthermore,

upon the Petitioner’s repeated requests for an informal

conference to avoid denial of due process, their failure to

comply proves that their actions were not by ignorance but

with clear intent. Petitioner’s exposure of Act 122 of 1941

sec 21(b) to those agents of the State of Michigan was law

that those agents were already using against the Petitioner.

The X1V amendment affords equal protection under the law

which was not adhered to in the case at hand. There is no

excuse for their actions against the Petitioner. Since Gregory

vs. Halvering, 293 U.S. 465 (1935) clearly gives the

Petitioner the right “to avoid those taxes by any lawful

means’, ignoring Petitioner’s legal arguments constitutes

criminal intent. During the Informal Conference held after

the seizure of Petitioner’s wages, the State ignored all

presented evidence by the Petitioner. This evidence

consisted of United States Supreme Court cases, USC, CFR,

MCL and precedent court cases. The agents of the State of

Michigan had already made a decision against the Petitioner

prior to the hearing as their presentation at that conference

presented a ruling against the Petitioner. The agents of the

State showed presumption of the determination as they had

not yet heard the Petitioner’s legal argument. Since the XVI

amendment affords the Petitioner equal protection under the

10

law, the laws that were being used against the Petitioner

should apply equally to the State. Furthermore, in the final

determination sent to the Petitioner, the determination did not

meet the standard expressed in Federal Maritime

Commission vs. South Carolina State Ports et al. Certiorari

tothe United States Court of Appeals May 28, 2002.

“Federal administrative law requires that agency

adjudication contain many of the same safeguards as are

available in the judicial process. The proceedings are

adversary in nature. They are conducted before a trier of

fact insulated from ploitical influence. A party is intitled

to present his case by oral or documentary evidence, and

the transcript of testimony and exhibits together with the

pleadings constitutes the exclusive record for decision.

The parties are entitled to_know_the_findings and

conclusions on all the issues of fact, law, of discretion

prestneted on the record.”

Petitioner did not receive a detailed conclusion in response to

any of the legal defenses presented. The actions of the

agents involved is contrary to their sworn oaths of office to

operate within the Constitution (see Bivens vs. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971).

The garnishment at 100% of Petitioner’s wages clearly

was in violation of MCR 3.101, Revised Judicature Act 236

of 1961 §§ 6231 & 4035 and 26 USC § 6331. The Warrant-

Notice of levy not being signed by a Judge was also a

violation of law as Snidach vs. Family Finance Corp., 395

U.S. states. From the record it is factual that the Petitioner

was not informed of his right to an informal conference by

notice as required by Act 122 of 1941 sec 2(b). Also, it is

factual that Petitioner’s request for an informal conference

prior to seizure of his property was dented. From the actions

by the Michigan Department of Treasury agents in not

following procedures, it 1s clear that due process was denied

to the Petitioner.

Il. THE MICHGAN COURT OF APPEALS FAILED

TO COMPLY WITH THE CONSTITUTION IN

HEARING THE CASE AS PRESENTED

Petitioner is not a trained attorney by appearing before

the Courts In Propria Person. By Haines v. Kerner, ET AL,

404 U.S. ,519, 92 S. Ct. 594, 30 L.Ed. 2d 625 the Courts

cannot hold the Petitioner to the same standard as a schooled

attorney. In the Appeal! filed, it 1s clear that the lower court

failed to recognize the Petitioner’s request for a new hearing

to correct errors in the hearing which dismissed the case on

25-Jul-07. When the Petitioner received the Notice dated

16-Aug-07 in response to his submitted request for new

hearing, the notice stated the final order was issued on 25-

Jul-08. For the Court of Appeals to initially state that they

were dismissing for the Petitioner filing late was an error.

After the ex-parte hearing was held in the Court of Claims in

response to Petitioner’s request for new hearing, the FINAL

FINAL order was issued dated 24-Sept-07. The Petitioner

could not have known based on the earlier notice dated 16-

Jul-O8 that this was not indeed the Final Order allowing the

21 days to submitt an Appeal to the Court of Appeals (MCR

7.101(B). To deny the Petitioner reinstatement of the case

would appear to be another denial to be heard by this self

represented Petitioner.

lil. THE MICHGAN SUPREME COURT FAILED TO

COMPLY WITH THE CONSTITUTION IN HEARING

THE CASE AS PRESENTED

The first denial from the Michigan Supreme Court stated;

“1S considered, and it 1s DENIED, because we are not

persuaded that the questions presented should be reviewed by

this Court. Since the violations presented to the Court are

12

mainly Constitutional in the clear denial of due process (IV

and XIV amendments) along with seizure of property in

excess of federal garnishment laws (V amendment), this

Petitioner sees no legal reason to be denied. A strict rule of

thumb for Appeal is a violation of any any all Constitutional

rights. Also, the denials sent to the Petitioner did not comply

with MCLA Constitution Article 6 Sec. 6.

Decisions of the supreme court, including all decisions

on prerogative writs, shall be in writing and shall contain

a concise statement of the facts and reasons for each

decision and reasons for each denial of leave to appeal.

When a Judge dissents in whole or in part he shall give in

writing the reasons for his dissent.

The orders received by the Petitioner were signed by the

Clerk of the Michigan Supreme Court, and did not give a

detailed reason for the denials. First and foremost, the

violations presented in the case are strong Constitutional

infractions that were committed not by ignorance or accident.

Second, the rejection of hearing Constitutional issues

presented to any Court contradicts their swom oath to the

Constitution.

IV. ALL PARTIES INVOLVED VIOLATED

THEIR OATHS OF OFFICE

All State employees involved in this issue before the

United States Supreme Court have taken a sworn oath to the

Constitution. They are required to operate within the law,

both Federal and State. Since the agents of the Michigan

Department of Treasury were informed of the request by the

Petitioner for an informal conference as afforded by Act 122

of 1941 sec 21(b), the seizure of property without due

process stands a fact. Their actions can only be considered

as reckless (Bivens vs. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). Also,

their disregard of garnishment laws cannot be excused. The

13

actions of these agents destroyed the Petitioner’s credit,

family and marriage.

V. THIS COURT SHOULD DIRECT THE

MICHIGAN SUPREME COURT TO GRANT

A NEW TRIAL

If the Court agrees with the submission that Petitioner’s

1V, V and XIV nights have been violated along with violation

in the garnishment at 100% which is in excess of the legal

limit, the Petitioner requests that the United States Supreme

Court accept this case as meeting the requirement for writ of

certiorari. Petitioner asks that the United States Supreme

Court remand this case back to the Michigan Supreme Court

to be heard in oral argument by the Petitioner.

CONCLUSION

Since all legal arguments were presented by the

Petitioner throughout this issue to numerous agents of the

State of Michigan prior to illegal seizure of Petitioner’s

property, the denial of this fact is all but impossible by those

agents involved. This is proof enough of denial of due

process. Since the State did not follow procedures set out in

law (Bushmann v. Schweiker, 676 F.2d 352 (1982)), and

since the Petitioner notified the state of the proper procedures

prior to scizure of wages, the State acted with clear criminal

intent in their actions. All documentation submitted by the

Petitioner to the Michigan Department of Treasury in an

attempt to resolve this issue was via certified mail. Since this

is legal evidence, it cannot be denied unless the Courts do not

allow the Petitioner to be heard. In the cases presented

before this United States Supreme Court, it appears that this

may be the Michigan Courts intent. The Petitioner only asks

for his Constitutional right to be heard and resolve the issues

presented (Ruff v. Issac, Michigan Court of Appeals, (case

no. 192615 ) Oct 17. 1997)..

14

APPENDIX

Michigan Court of Claims Case No. 07-34-MT

25-Jul-07 Order:

The Court, after reading all of the filed pieadings regarding

Defendant’s Motion for Summary Disposition, pursuant to

MCR 2.116(C)(4), and (8), and after hearing oral arguments

by parties at a hearing held on July 25, 2007, at 1:30 p.m.,

now: GRANTS DEFENDANT’S MOTION FOR

SUMMARY DISPOSITION:

1. This Court lasks subject matter jurisdiction over

Plaintiff's adtion pursuant to MCR+ 2.116(C)(4).

2. The Court grants summary disposition in favor of the

Defentant based on all additional reasons stated by

the Court on the record.

This ORDER is a final order disposing all of claims in the

case, and Plaintiff's cased is dismissed with prejudice.

16-Aug-07 : Official Circuit Court Notice

Order granting DF’s motion for summary disposition — This

is the final order disposing alll claims in this case — PI’s case

dismissed with prejudice (signed by Judge Manderfield on

7/25/07).

24-Sept-07: ORDER DENYING PLAINTIFF’s MOTION

FOR REHEARING OR RECONSIDERATION

..It is herby ordered that Plaintiff's motion for rehearing or

reconsideration of this Court’s July 25, 2007 order granting

Defendant's motion for summary disposition is DENIED for

the reason that this Court ts not convinced that pursuant to

MCR 2.!19(F)(3) a palpable error has occurred and that a

different disposition of the motion must result from a

correction of an error.

Michigan Court of Appeals Case No. 280282

13-Sept-07: ORDER

The claim of appeal filed August 30, 2007 is DISMISSED

15

for lack of jurisdiction because Petitioner failed to file the

claim within 21 days ofthe July 25, 2007 entry of the final

order granting summary disposition as required by MCR

7,.204(A)(1)(a)

23-Oct-07: ORDER

The Court, acting under MDR 7.203(F)(2), orders that the

motion for reconsideration is DENIED. The claim of appeal

filed on August 30, 2007, was properly dismissed, as there

was no order entered denying the motion for reconsideration

when this claim of appeal was filed.

Michigan Supreme Court Case No. 135380

24-Mar-08: Order

On order of the Court, the application for leave to appeal the

September 13, 2007 order of the Court of Appeals is

considered, and it is DENIED, because we are not persuaded

that the questions presented should be reviewed by this

Court.

09-Sept-08: Order

On order of the Court, the motion for reconsideration of this

Court’s March 24, 2008 order is considered, and it is

DENIED, because it does not appear that the order was

entered erroncously.

CASES

Bivens v. Six Unknown Fed Narcotics Agents,

403 US 388 (1971)

“It is important to realize tha no individual uw government

has the authority to operate outside his authority. If he

knowingly operated outside of hts anthority, he can be sued

in his individual capacity.”’

16

Bushmann v. Schweiker, 676 F.2d 352 (1982)

"A regulation is invalid if the agency fails to follow

procedure required by the Administrative procedures Act, (5

U.S.C.)

Coe v. Armour Fertilizer Works, 237 U.S. 413, 423

“prejudgment garnishment procedure’ violates the

fundamental principles of due process."

Federal Maritime Commission vs. South Carolina State Ports

et al. Certiorari tothe United States Court of Appeals May 28,

2002. “Federal administrative law requires that agency

adjudication contain many of the same safeguards as are

available in the judicial process. The proceedings are

adversary in nature. They are conducted before a trier of fact

insulated from ploitical influence. A party 1s intitled to

present his case by oral or documentary evidence, and the

transcript of testimony and exhibits together with the

pleadings constitutes the exclusive record for decision. The

parties are entitled to know the findings and conclusions on

all the issues of fact, law. of discretion _prestneted on the

record.”

GREGORY vs. HALVERING, 293 U.S. 465, (1935)

“The Legal Right of the Taxpayer to decrease the amount of

what otherwise would be his/ her taxes, or altogether avoid

those taxes by ANY Lawful means, which the Law permits

CAN NOT be doubted, as it is his/ her Right to so do.

Haines v. Kerner, EIT AL, 404 U.S. ,519, 92 S. Ct. 594, 30

L.Ed. 2d 625

....allegations such as the pro se asserted by petitioner,

however inartfully pleaded, are sufficient to call for the

opportunity to offer supporting evidence.

Marbury vs. Madison, 5 U.S. 137 (1803)

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“Any.....thing in conflict or repugnancy with this United

States Constitution is null and void of Law, it bears no

power to enforce and no obligation to obey, it purports to

settle as if it never existed in Law, for it was

unconstitutional from it's very inception and not from the

date so branding it unconstitutional.

Ruff v. Issac, Michigan Court of Appeals, (case no. 192615 )

Oct 17, 1997

“On appeal the Plaintiff’s assert that because the IRS failed

to adhere to Federal Statutorily prescribed proceedural notice

provisions. Plaintiff's have superior title to the property. We

reverse and remand.”

Snidach v. Family Finance Corp., 395 U.S. 337 (1969)

* The Idea of wage garnishment in advance of judgment, of

trustee process, of wage attachment, or whatever it is called

is a most inhumane doctrine. lt complels the wage earner,

trying to keep his family together, to be driven below the

poverty level. The result is that a prejudgment garnishment

of the Wisconsin type may as a practical matter drive a wage-

earning family to the wall [395 U.S. 337, 342]. Where the

taking of one’s property is so obvious, it needs no extended

argument to conclude that against notice and a hearing (Coe

vy. Armour Fertilizer Works, 237 U.S. 413, 423) this

prejudgment garnishment procedure violates the fundamental

principles of due process.”

STATUTES AND REGULATIONS

S USC § 706 Scope of review -

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall--

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(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be--:

(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law

(B) contrary to constitutional right, power, privilege, or

immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by law,

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on

the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are

subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial error.

26 USC § 6331 - Levy and Distraint

Notwithstanding * * * such continuous levy shall attach

to up to 15 percent of any specified payment due tothe

taxpayer.

28 USC § 1257 — State courts; certiorari (a) Final judgments

or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme

Court by writ of certiorari....

Act 122 of 1941 sec 21(b)

If the dispute is not resolved within 30 days....shall give

notice to the taxpayer.,....The notice shall include the

amount the department believes the taxpayer owes, the

reason for that deficiency, and a statement advising the

taxpayer of a right to an informal conference, the

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requirement of a written request by the taxpayer for the

informal! conference that includes the taxpayer's statement of

the contested amounts and an explanation of the dispute, and

the 30-day time limit for that request.

Court of Claims Act 600.6434 - Pleadings, service, copies

(4) — With each paper, including the original complaint

filed by the claimant, | copy of each shall be furnished to

the clerk who shall immediately transmit the copy to the

attorney general.

Revised Judicature Act of 1961

Act 236 of 1961

Sec 600.623! - Garnishment without order prohibited

and void; notice of order. The garnishment of any money

due or to become due for the personal work and labor of

the defendant upon a judgment made payable in

installments either by the court order or by agreement of

parties is prohibited, excepting upon a written order of

the judge. Any writ of garnishment issued without the

order is void. Ihe order may be made following due

notice to the defendant if installments are duc.

Sec. 4035 — An attachement shall bind goods and cattels

from the time they were attached. An attachement of

realty or any right or interest therein shall constitute a

lien thereon, effective from the time when a certified

copy of the attachment including a description of the

realty shall be deposited in the office of the register of

deeds tn the county where the realty is situated

MCR 2.105 ~ (g)(8) The service process may be kade on an

officer having substantially the same duties as those named

or descriged above...

MCR 2.108(a) Time tor Service and Filing of Pleadings. (1)

A defendant must serve and file an answer or take other

20

action permitted by law or these rules within 21 days after

being served with the summons and a copy of the complaint

in Michigan in the manner provided in MCR 2.108 (b) -

Time for Filing Motion in Response to Pleading. A motion

raising a defense or an.objection to a pleading must be served

and filed within the time for filing the responsive pleading

or, if no responsive pleading is required, within 21 days after

service of the pleading to which the motion is directed.

MCR 2.116(C)(4) — Grounds — the court lacks jurisdiction of

the subject matter

MCR 3.101- Garnishment After Judgment:

(F) Service of Writ — The writ of garnishment and the

disclosure form, and a copy of the writ for cach principal

defendant, must be served on the garnishee defendant in the

manner provided for the service of a summons and complaint

MCR 2.105 within 14 days after the writ was issued.

MCR 7.215(1)(3)(1) Reconsideration.

(3) The clerk will not accept for filing a motion for

reconsideration of an order denying a motion for

reconsideration.

MCR 7.101 (B) Time for Taking Appeal.

(1) Appeal of Right. Except when another time is

prescribed by statute or court rule, an appeal of nght

must be taken within

(a) 21 days after the entry of the order or judgment

appealed from; or

(b) 21 days after the entry of an order denying a motion

for new trial or judgment notwithstanding the verdict, a

motion for rehearing or reconsideration, or a motion for

other posttudgment relief, if the motion was filed within

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the original 21-day period. A motion for rehearing or

reconsideration of a motion mentioned in_ subrule

(B)(1)(b) does not extend the time for filing a claim of

appeal, unless the motion for’ rehearing or

reconsideration was itself filed within the 21-day period.

MCR 7.204(A)(1)(3) - An appeal of right in a civil action

must be taken within 21 days

MCLA Constitution Article 6 Sec. 6 Decisions of the

supreme court, including all decisions on prerogative writs,

shall be in writing and shall contain a concise statement of

the facts and reasons for each decision and reasons for each

denial of leave to appeal. When a Judge dissents in whole or

in part he shall give in writing the reasons for his dissent.

99

hes bee

Respectfully submitted.

John Michael McLeod

1900 Loomis Rd.

Jackson, Michigan 49201

(517)-262-2796

In Propria Persona