Here is the second of three documents I will be posting here. the US District Court judge did everything he could to dismiss the case and one by one dismissed the defendants based on immunity. In short, he tried to "clerk me out". US District Court Judge Franklin D. Burgess' response to the following document was to dismiss the entire case base on res judicata. This, of course was a bogus ruling and he knows it. Most of the facts related to my federal law suit came AFTER the event that he claim precluded him from asserting jurisdiction. As a matter of fact, not one defendant respnded to the following pleading. How could they, they knew it was all true and my analysis of the law was right on point. They knew they didn't have to respond because Judge Burgess would 'take care of it'.?
Plaintiff Donald E. Railsback comes to the court with his MOTION TO REINSTATE ALL DEFENDANTS, MOTION TO SUPPLEMENT AND SUPPLEMENT TO ORIGINAL COMPLAINT, AND MOTION FOR PARTIAL SUMMARY JUDGMENT. Simply put, the court has abused its discretion in dismissing any of the named defendants with prejudice in this action and cannot be supported by either the facts or the law. Rule 15(a) “Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.” Defendants have only filed motions for dismissal and therefore Railsback has a right to file an amended complaint. Rule 15(d) Supplemental Pleadings. “Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.”
OVERVIEW
This is a rather complex case involving violations of Railsback’s rights protected by: the Constitution of the United States of America; Title 42 U.S.C. §§ 1983, 1985; and, for damages pursuant to violations of Title 18 U.S.C. §§ 1961-1968. The case is further complicated by the number of defendants named in the complaint, the nature and power of public positions held by a number of the defendants, the assertions by both Clark County and the State of Washington that all individual defendants were carrying out the policies and customs of both Clark County and the State of Washington, and where to draw the line between the Civil Rights violations and the RICO violations.
Despite Railsback’s allegation that while the individual defendants have at all times material been acting under color of law, but not within the law, the defendants in decision making positions have immunized county and state officials from personal liability for violations of 42 U.S.C. §§ 1983 and 1985. These decisions were made in bad faith.
Now that the state and county have claimed those defendants were following the policies and customs of the state and county, those individuals may dismissed from the 1983/1985/1986 causes of action. However, this also means that each of those individuals must defend the RICO claims at their own expense. For obvious reasons, this will certainly assist in the quest for truth.
The motion and pleadings of Defendants Christel and Wolfe for their dismissal point to the two key facts upon which most, but not all, this lawsuit depends and from which just about every RICO predicate act and civil rights violation was born and which continues to this day.
These two facts are:
1. There is no order that can possibly be construed as a denial of Railsback’s motion to vacate the arbitration award, and thus there is no final judgment on the arbitration matter.
2. There never was a hearing on Railsback’s claims of exemptions in the garnishment action and no defendant has been able to identify a date on which such a hearing took place for the simple fact that it never happened
3. A third fact. Harris, Meyer, Christel, and Wolfe, and Ramstead all had actual knowledge of ‘1’ and ‘2’, when Harris entered the orders to pay out on the fraudulently obtained garnishment judgments that totaled over $3,500.
This alone, establishes a §1983 claim. Once Harris realized they were caught committing the crime of Theft-1, in violation of RCW 9A.56.030, a class-B felony, he was committed to doing anything and everything possible to avoid the consequences of his crime, including continued violations of §1983, 1985, and even 18 U.S.C. §§1961-1968. Railsback had no idea that the judicial corruption would go all the way to the state supreme court, but it did!
REINSTATEMENT OF DEFENDANTS
A denial of a motion for leave to amend after a responsive pleading has been filed is reviewed for an abuse of discretion, National Abortions Fed'n v. Operation Rescue, 8 F.3d 680, 681 (9th Cir. 1993), "but such denial is `strictly' reviewed in light of the strong policy permitting amendment, " Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 371 (9th Cir. 1992) (quoting Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 1991)). A "leave [to amend] shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The refusal to grant leave without any apparent justifying reason is an abuse of discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). "Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility." California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988). We find that the magistrate judge abused his discretion because there is no valid reason to deny Pierce's motion to reinstate the County as a defendant. Pierce v. Multnomah County, 76 F.3d 1032, cert. Denied, 117 S.Ct. 506 (1996).
The only possible reason available to the court to deny a supplementation of the complaint or reinstatement of all defendants is ‘futility’. Railsback’s complaint cannot possibly be construed to be ‘futile’, at least if the only considerations are the law and the facts. The only thing futile about this case is a defense. In any event, a motion to dismiss is not a responsive pleading and the plaintiff can supplement or amend a complaint as a matter of right.
“A Rule 12(b)(6) motion tests the legal sufficiency of a claim. A claim may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them. Cahill, 80 F.3d at 338. Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).” Navarro v. Block, No. 99-55623 (9th Cir. 05/11/2001)
Neither the court, nor the defendants, can seriously claim it is beyond doubt that Railsback can prove no set of facts in support of his RICO and Civil Rights claims. That is absurd on its face. In the court’s dismissal of defendants Meyer, Andersen, Hollis, and the Clark County related defendants cannot be justified in any fashion. No defendant has filed a Rule 12(e) Motion for More Definite Statement, so obviously, the defendants know exactly what claims they must defend; but there are no set of facts which will permit them to escape liability.
STATEMENT OF CLAIM UNDER 42 U.S.C. 1983 and FOURTEENTH AMENDMENT
"In order to state a claim under the fourteenth amendment, the complainant must allege facts showing not only that the State has deprived him of a . . . property interest but also that the State has done so without due process of law. " Gearhardt v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (quoting Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir. 1980)) (internal quotation marks omitted). Consequently, once a court determines that a protected property interest has been taken, "the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Brewster v. Board of Education of Lynwood Unified School District, 149 F.3d 971
Chateaubriand v. Gaspard, 97 F.3d 1218 (9th Cir. 10/07/1996), a case presided over by Judge Burgess, suffices to establish that the Clark County commissioners and sheriff’s personnel are entitled to only qualified immunity. Railsback certainly alleged a property interest under the Fourteenth Amendment and a deprivation of that interest under the color of law by the actions and conspiracy of the defendants. The obvious property interests are the $3,500 judgment obtained through fraud and obstruction of justice and denial of due process (See Lugar). Railsback also has the property interest in a $1.2 million default judgment to which he is entitled as a matter of law and denied him as a result of a conspiracy by the defendants to defraud him through numerous RICO predicate acts and violations of 42 U.S.C. 1983, 1985, 1986, by denying Railsback’s constitutional right to due process and property. Railsback, not the defendants is entitled to summary judgment on the Civil Rights claims.
§§ 1983, 1985 and 1986 CAUSES OF ACTION
In the court’s order denying motion to reconsider the dismissal of Meyer, the court used the excuse of Local Rule 7(e) which “disfavors” motions for reconsideration. In essence, Judge Burgess blatantly abused his discretion in dismissing Meyer and then uses Local Rule 7(e) as an excuse to not correct his abuse of discretion. Huh? Local Rule 7(e) did not prevent him from reconsidering a dismissal in Gaspard. I appears to Railsback that Local Rule 7(e) serves no purpose other than to justify abuses of discretion. The court also stated that Railsback “failed to raise new arguments or to support his now familiar arguments with valid citation to relevant and applicable legal authority.” This statement is not supported by the facts. Railsback not only cited relevant and applicable legal authority, Railsback used the very same cases cited by Judge Burgess. Judge Burgess, in his dismissal of Meyer (CP 44), stated on page five that Meyer is not a state actor, yet Railsback’s MOTION TO RECONSIDER DISMISSAL OF MEYER cited Dennis v. Sparks, 449 U.S. 24, 28-29 (1980) (“Although the attorney defendants are themselves private actors, private parties who corruptly conspire with a judge in connection with the judge’s performance of an official judicial act are acting under color of state law for the purpose of §1983, even if the judge himself is immune from civil liability.”)
As for the 1985 (2) and (3) claims, Judge Burgess deliberately misconstrues Griffin v. Breckenridge, 403 U.S. 88 (1971). Judge Burgess would have Railsback believe that 1985(2), (3) actions have always required a class based animus, even when the defendants include public officials. The importance of Griffin is that the U.S. Supreme Court expanded the scope of 1985 to include purely private conspiracies when a class based animus was established. It did not eliminate conspiracies involving state actors. To accept Judge Burgess’ interpretation, one would have to also conclude that when the Civil Rights Act of 1871 was passed, Congress passed a civil rights law for which there would be no cause of action until 100 years later when the U.S. Supreme Court decided Griffin. Judge Burgess’ feigned reliance on Griffin is not only dishonest and disingenuous (no one even remotely familiar with §1985 could possibly be that stupid), he was in violation of Title 18 U.S.C. 1341( as it relates to mail fraud) and 18 U.S.C. 1346 which provides “For the purpose of this chapter, the term ‘scheme and artifice to defraud’ includes a scheme and artifice to deprive another of the intangible right to honest services.”
JUDGE FRANKLIN D. BURGESS IS FACILITATING THE
GOALS OF THE RICO ENTERPRISE(S)
Judge Burgess’ dismissals of defendant David Meyer and all the defendants related to Clark County was a willful, intentional and malicious disregard of and in derogation of Railsback’s property and due process right guaranteed by the Fourteenth Amendment. Judge Burgess appears to have adopted and is facilitating the RICO enterprise(s) goals of maintaining control of various state of Washington agencies, offices and courts through a pattern of racketeering activity in violation of Title 18 U.S.C. 1962 (b),(c), and (d). In furtherance of the goals of the enterprise, Judge Burgess has committed at least two RICO predicate acts of 18 U.S.C. 1341 and 1346 in that he mailed or caused to have mailed an order dismissing civil rights and RICO claims defendant Meyer which he knew was not supported by the facts or the law and facilitated the defendants control over various state agencies and offices for their own benefit and in doing so, intentionally deprived Railsback and the people of Washington of their intangible right to the honest performance of his services. See U.S.A. v. Frega 179 F.3d 793 (1999)
Order of April 6, 2001
The first set of RICO predicate acts committed by Judge Burgess was on or about April 6, 2001 in that Judge Burgess mailed or caused to be mailed to plaintiff Railsback and each of the attorneys representing defendants in U.S. District Court Case No. C01-5052 FDB, an order dismissing RICO and civil rights claims against defendant David Meyer which he knew was not based on the facts or the law in violation of 18 U.S.C. 1341 and 1346, and committed these acts to assist the defendants maintain control of their various enterprise(s) through a pattern of racketeering activity in violation of 18 U.S.C. 1962(b),(c),(d).
Order of May 16, 2001.
The second set of RICO predicate acts committed by Judge Burgess, with the same intent and purpose as the first, was when he mailed or caused to be mailed on or about May 16, 2001, an ORDER DENYING PLAINTIFF’S MOTION TO DISQUALIFY OPPOSING COUNSEL; GRANTING MOTION TO DISMISS DEFENDANTS HOLLIS AND ANDERSEN AND DENYING RECONSIDERATION OF ORDER TO DISMISS MEYER. As stated earlier in this pleading, Judge Burgess intentionally lied about the nature of Railsback’s MOTION TO RECONSIDER DISMISSAL OF MEYER and therefore he committed the RICO predicate acts of 18 U.S.C. 1341 as it relates to mail fraud and in violation of 18 U.S.C. 1346 as it relates to the intangible right to the honest performance of his services.
3. Order of June 20, 2001.
A third set of RICO predicate acts was committed by Judge Burgess when he mailed or caused to be mailed on or about June 20, 2001, an ORDER GRANTING MOTION TO DISMISS CLARK COUNTY, ET AL. This was also in violation of 18 U.S.C. 1341 and 1346 in that is was again fraudulently entered in furtherance of the objectives of the RICO enterprise(s) to continue to operate or control various state and local government agencies and offices by all the defendants in U.S. District Court Case No. C01-5052 FDB, and like all other RICO predicate acts committed by the defendants, was done as part of an ongoing and continuous effort to collect an unlawful debt from Railsback of 18 U.S.C. 1962(b), (c), (d) and to deny Railsback his property right to an approximately $1.3 million judgment against Clark County to which he is entitled as a matter of law (Violation of 18 U.S.C. 1951(2)) as it relates to extortion under color of law.
Each of the RICO predicate acts committed by Judge Burgess also constitute the crimes of obstruction of justice pursuant to 18 U.S.C. 1503. See United States v. Maloney 71 F.3d 645 (7th Cir. 1995) (“Section 1503 prohibits a person from endeavoring to obstruct or impede the "due administration of justice." To establish a violation of this section, courts require the government to establish that the defendant knew of a pending judicial proceeding and intended to impede its administration. See United States v. Aguilar, 115 S. Ct. 2357, 2362 (1995); United States v. Edwards, 36 F.3d 639, 645 (7th Cir. 1994)”). After all, he is the judge assigned to this case.
Judge claimed that Railsback failed to properly allege a “pattern of RICO activity”. Although Railsback initially relied on mail fraud, he certainly did sufficiently allege at least two acts of mail fraud that was part of a pattern of racketeering activity. Even though reasonable inferences of mail fraud can easily be made throughout the complaint based on the factual allegations, even where there was no specific mention of use of the mails, 76, 81, 87, 89, 96, 97, 100, 101, 107, 115, 116, 118, 119, 130, 132, 133, 134, 138, and 140 are very specific as to dates, identification of documents mailed, the circumstances related to the mail fraud and the individuals involved.
The dismissal of the Clark County related defendants on the §§1983 and 1985 claims, is compelling evidence that Burgess’ has adopted and is facilitating the objectives of the conspiracy of the defendants. Superior Court Judges and court staff have only qualified immunity. The same goes for members of the Sheriff’s Office, Prosecutor’s Office, and the Clark County Board of Commissioners. Since when is the commission of crimes, the facilitating of them, criminal negligence to the commission of crimes, a blatant intentional disregard as to the enforcement of criminal statutes by prosecutors and sheriffs, and violations (§1983) or conspiracies to violate them (§1985) and failure to act to protect (§1986) a citizens civil rights, guaranteed by the Constitution of the United States of America, a proper purpose for any government official?
Specifically, judges have only qualified immunity for their judicial acts. As Judge Burgess must know, immunity follows function. Public officials are not immune from liability when they commit criminal acts themselves and cover-up or facilitate criminal acts of other defendants in a RICO enterprise. See Salinas v. United States, 522 U.S. 52, at 66 (1997) (“[E]ven if Salinas did not accept or agree to accept two bribes, there is ample evidence that he conspired to violate subsection [18 U.S.C. 1962](c). The evidence showed that [Sheriff] Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under §1962(d)”). This same principle also applies to the judges, other court personnel, attorneys, prosecutors, sheriff’s deputies, the board of commissioners, and every other named defendant, and many who have not yet been named, but will be in the near future.
Prosecutors have only qualified immunity and their absolute immunity to 1983/1985 actions is only when performing functions related to actual judicial proceedings. See Kalina v. Fletcher, 118 S.Ct. 502 (1997).
No rational person could surmise that the actions of the board of county commissioners related to the 1983 claims were legislative in nature. That’s absurd on its face.
Judge Burgess’ dismissal of the Clark County related defendants from the §1985(2), (3) claims because Railsback failed to allege any class based animus illustrates perfectly his joining in of the goals of the RICO enterprise. If a class based animus were required for §1985(2), (3) actions involving ‘state actors’, what purpose would they have had in 1871, when the Civil Rights Act of 1871 was passed? If one were to accept the claims of Judge Burgess regarding a class based animus requirement for conspiracies under what is now §1985(2), (3), one would have to also conclude that a person could not have had a §1985(2), (3) cause of action until the United States Supreme Court decision in Griffin v. Breckenridge, 403 U.S. 88 (1971), exactly one hundred years after the Civil Rights Act of 1871 was passed into law by Congress. Railsback remains unconvinced that the court has correctly applied §§ 1983 and 1985. Railsback, in his objection to the dismissal of Clark County, et al., included a copy of his petition to recall Judge Scott Anders that included numerous actual instances of mail fraud, including the dates, the individuals involved, and the fraudulent purposes for mailing the documents. For Judge Burgess to not consider them to meet even his standard of pleading with sufficient specificity is proof he intended all along to simply ignore the clear meaning of the law in an effort to conceal the crimes of the defendants in a case in which he is the presiding judge.
There are just some actions, rulings, and orders, especially when committed by a U.S. District Court Judge, which can only be attributed to corruption and criminal intent. This is certainly one such case. There simply is no other reasonable explanation, especially when Railsback pointed out the blatant misconstructions and backed up his argument to legal authority, even using the very same cases cited by Judge Burgess, only to be followed by another ruling that denied Railsback even made an argument; and then basing his denial to reconsider his dismissal of Meyer on an innocuous local rule while intentionally ignoring his willful, blatant, malicious abuse of discretion and criminal neglect of the law as he must know it to be. Judge Burgess is a racketeer. There is no other possible conclusion.
As for the liability of Clark County and the State of Washington, whether or not respondeat superior liability is applicable is a moot point (Savage v. State. 127 Wash.2d 434 says it applies in Washington because the legislature has waived sovereign immunity). This issue is moot because the Washington Attorney General and the Clark County Board of Commissioners decision to indemnify all the public officials from 1983/1985 liability means Railsback only needs to establish a deprivation of a constitutional right in order to prevail. Based on this position, and the Monell line of cases, the state and the county are collaterally estopped from denying liability for the actions of its officials and are therefore subject to possible punitive damages as well. While Railsback is convinced these determinations were made in bad faith, and may subject those persons to personal liability under §1983 for those bad faith decisions, a possibility the Clark County Board of Commissioners may not have considered. The next state AG can address this matter later. The decisions to indemnify all government officials is a part of the scheme and artifice to defraud Railsback and the citizens of the state of Washington by high ranking officials of the state and county in an effort to encourage the lower level public officials to ‘stay on the plantation’ in order to save their own skins. It won’t work.
Since the state and county officials have been indemnified for the civil rights claims, each of those individuals must now provide for their own defenses to the RICO claims. They now have a huge problem with continuing the cover-up and concealment of their RICO enterprise and its objectives because it is very likely that one or more of the lower level RICO defendants may soon realize that a settlement for very, very little money will be a deal so attractive they can’t afford to pass it up.
Because RICO is a criminal action that also provides a victim to recover civil damages from the members of the RICO enterprise, none of the individual defendants sued in their own capacity is entitled to a defense at public expense. The fact that the state and county have, up to this , provided legal representation for even the RICO claims is in itself evidence of a conspiracy to conceal the RICO enterprise and its objectives. This is especially true given the fact that as of May 25, 2001, no defendant has apparently even investigated the allegations in my RICO complaint, at least that is what Clark County claimed during a recall petition hearing against now Clark County District Court Judge Scott Anders. One would have to conclude that if Clark County had not investigated the allegations prior to May 25, 2001, neither has anyone else. Could it be that they didn’t have to, because they already knew the allegations are true? The answer to this question can only be, “Yes’. This leads to several questions such as:
1. How could the Clark County Board of Commissioners make a good faith determination that its officials were in compliance with the customs and policies of the county, and the law.
2. The same question needs to be applied to the state related defendants. As a matter of fact, the state related defendants have never addressed the allegations in the complaint. They do nothing more than admit that “certain events’ occurred in the case underlying the entire complaint in this case.
3. Given that all defendants have had at least five months to investigate the factual allegations, it is shocking to learn that none of them appears to claim they have conducted an investigation. The failure of the Governor Locke and AG Gegoire to do so smacks of criminal negligence because if they were not guilty or not liable, it is the very first thing they would have done. But, alas, they didn’t; because they aren’t. If they were not at least facilitating the goals and objectives of a RICO enterprise, they would have no reason to not investigate. To the contrary, they have the authority and power to conduct an investigation and bring the criminals to justice. If Gregoire and Locke were not a part of a RICO enterprise, why wouldn’t they investigate? There is no possible explanation that a reasonable person would accept. If they are innocent, conducted an investigation and brought public officials to justice, they would be heros; so why not? The reason they have done nothing is because they are as big a part of a vast RICO organization of what must be a formal or informal network of one or several corruptly run government entities within the State of Washington. There can simply be no other explanation. What is likely a huge “mutual protection society” is also a huge “mutual extortion society” all with the same common goals of maintaining their personal control over government entities through a pattern of racketeering activity.
4. Governor Locke and AG Gregoire intentionally ignore repeated attempts by Railsback to obtain their assistance, Railsback was repeatedly told that the Gov. and AG had no authority to investigate criminal conduct by public officials in political subdivisions of the State of Washington, which is obviously a lie; or as told by Scott Blonien, they were to busy with other things to investigate crimes committed by judges, such as the one committed by Judge E. Thompson Reynolds in open court on July 27, 2000, even when Blonien given notice in advance and told of it after it was committed. The simple fact is that Gov. Locke and AG Gregoire couldn’t investigate criminal conduct of public officials because any investigation would also lead back to themselves and their subordinates. All these corrupt officials can do is hope that somehow, someway, this will all go away. They hope in vain, but are paralyzed from doing anything about it. Their only hope is to prevent Railsback from being able to have a trial on the merits of his case. They never had a chance! It is sort of like being on death row; knowing that the end is near, but being helpless to stop the inevitable. Gov. Locke and AG Gregoire, like the rest of their fellow racketeers can do nothing but wait for the inevitable collapse of their various interrelated corrupt enterprises.
5. Much the same goes for officials working within the Supreme Court of the State of Washington. The only question that remains is which justices are or are not a part of a RICO associates in fact enterprise.
6. Why are the courts of the state of Washington, and now the U.S. District Court doing everything possible to obstruct justice in this case? Simple. Railsback can prove everything he has alleged in his complaint, and much more; not just by a preponderance of the evidence, but by proof beyond a reasonable doubt, and they all know it.
RICO PREDICATE ACTS FOR THOSE WHO HAVE EYES, BUT SEE NOT
Definitions (All Title 18 U.S.C.):
Mail Fraud (“MF”) Section 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, places in any post office or
authorized depository for mail matter, any matter or thing whatever
to be sent or delivered by the Postal Service, or deposits or
causes to be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, or takes
or receives therefrom, any such matter or thing, or knowingly
causes to be delivered by mail or such carrier according to the
direction thereon, or at the place at which it is directed to be
delivered by the person to whom it is addressed, any such matter or
thing, shall be fined under this title or imprisoned not more than
five years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000 or
imprisoned not more than 30 years, or both.
Bank Fraud (“BF”) Section 1344. Bank fraud
Whoever knowingly executes, or attempts to execute, a scheme or
artifice -
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the custody or
control of, a financial institution, by means of false or
fraudulent pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than
30 years, or both.
Honest Services (“HS”) Section 1346. Definition of ''scheme or artifice to defraud''
For the purposes of this chapter, the term ''scheme or artifice
to defraud'' includes a scheme or artifice to deprive another of
the intangible right of honest services.
Obstruction of Justice (“OJ”) Section 1503. Influencing or injuring officer or juror generally
(a) Whoever corruptly or by threats or force, or by
any threatening letter or communication, influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished as provided in
subsection (b).
Extortion (“EX”) Section 1951. Interference with commerce by threats or violence
(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce,
by extortion or attempts or conspires so to do, or commits or physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
(b) As used in this section -
(2) The term ''extortion'' means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right.
a. Original Complaint Dated January 24, 2001.
59 – MF, OJ, EX - Ex-parte contact between Harris and Meyer to obtain order to appear at debtor’s exam based on fraudulently obtained arbitration award; without proper notice of hearing on order. Order sent through mail.
60 – HS, OJ, EX, 14th Amendment due process and property – Contrary to the law in the State of Washington, Harris intentionally raised arguments for Meyer in a hearing on Railsback’s motion to vacate the arbitration award and in doing so intentionally refused to allow Railsback a full and fair opportunity to present his case, especially the facts that conclusively proved that the arbitrator failed to determine all matters ‘arising from or related to the contract’. Especially relevant was Hackett’s admission that if Railsback had put all $40,000 of a payment Railsback received from Hackett into the corporation jointly started by Railsback and Hackett (D&D), that corporation would have to figure out how to get the money for Hackett.
63 HS, MF, EX, OJ, 14th Amendment due process and property – Hackett and Railsback stipulated on 3/5/99, that if Railsback obtained a judgment against D&D, Railsback would be entitled to relief in the amount of the judgment obtained. On 3/11/99, Railsback obtained the judgment per the stipulation. During the improperly noted debtor’s exam on 3/18/99, Harris and Meyer attached the judgment of a court of coordinate jurisdiction, and Harris corruptly refused to grant the relief at that time and stated Railsback would have to cite the motion for a hearing. Meyer mailed notices of this hearing to Railsback.
64- HS, MF, EX, OJ, 14th Amendment due process and property – Pleadings were sent through the mail by Meyer.
65 – MF, HS, OJ, EX, 14th Amendment due process and property – Pleadings were mailed by Meyer. Harris’ “need to pierce the corporate veil” statement was fraudulent and obstructed justice and was a scheme to deny Railsback the relief to which he was entitled.
66 – MF, HS, OJ, EX, 14th Amendment due process and property – Pleadings mailed by Meyer, Harris obstructed justice by entering fraudulent order denying relief based on stipulation. Harris further obstructed justice by entering order that Meyer no longer had to Respond to Railsback’s pleadings without legal justification or authority. 14th Amendment basis is obvious.
67, 68 – MF, HS, OJ, EX, 14th Amendment – Harris never acted on the motions to reconsider relief based on the stipulation, or even a request that he either deny or grant motion to vacate the arbitration award. There is still not order entered denying Railsback’s motion to vacate the arbitration award, so there is no final judgment on that matter to this day.
69 – MF, EX – Meyer mailed out writs of garnishment when he knew that there was no final judgment on the arbitration award and fraudulently attached the February 5, 1999, arbitration judgment for which he knew was the subject of a pending motion to vacate.
70 – 71 – MF, EX, OJ, BF, 14th Amendment due process and property – The following acts of mail fraud were committed during this time period. Defendant Christel mailed a letter to Railsback stating that she was refusing to return money to Railsback when presented with a signed order directing that Railsback’s money be returned as required by law and even refused to refer the matter to a Bank of America lawyer when demanded to by Railsback. This was obstruction of justice, mail fraud, extortion, and bank fraud; as well as a 14th Amendment violation.
72 – 79 - MF, HS, EX, OJ, BF, 14th Amendment – On or about July 1, 1999, defendant Ramstead mailed a declaration to Bank of America attorney Christel and Railsback in which she stated that the reason for her refusal to return the property to which Railsback was entitled to as a matter of law was based on a bankruptcy statute which she knew or should of known was a faulty interpretation, had no actual knowledge about a bankruptcy, refused to let me talk to a Bank of America attorney, and had put on notice that there was no underlying judgment on which a garnishment proceeding could possibly be based. This was extortion, mail fraud, bank fraud, practicing law without a license, and conspiracy to commit theft.
On July 2, 1999, Meyer mailed what he purports to be three separate objections to Railsback’s claims of exemption for three garnishments when he knew that there was no underlying judgment on which to base and garnishment action. These are three counts of mail fraud, and because he sent these documents to three separate banks, it constituted three additional counts of mail fraud, three counts of bank fraud, obstruction of justice, and was part of a conspiracy with Harris to deny Railsback’s 14th Amendment due process and property rights.
On July 2, 1999, Harris fraudulently vacated three garnishment dismissals he had entered on June 18, 1999, even though he knew that at the time Railsback had filed for a bankruptcy, Meyer and his client Hackett had already failed to object to the claims of exemptions within the statutory time limitation period. This was extortion, obstruction of justice, and HS in that Harris denied Railsback his intangible right to his honest services.
On July 2, 1999, Meyer mailed three OBJECTION[S] TO CLAIM[S] OF EXEMPTION AND JUDGMENT ON ANSWER of garnishees. This was done in furtherance of a fraudulent effort to deprive Railsback of his property rights under color of law in a conspiracy with Judge Harris. Mail Fraud and Extortion. It is important to note that these pleadings made no mention of a hearing on Railsback’s claims of exemptions. These acts constitute MF, HS, OJ, BF and 14th Amendment violations.
On July 9, 1999, there was no hearing on claims of exemption because Harris granted Railsback’s objection to insufficient notice. Harris refused to dismiss the garnishments as required by law and in doing so, obstructed justice, and deprived Railsback of his intangible right to his honest services and his property rights under the 14th Amendment.
On July 14, 1999, defendant Meyer filed a pleading that intentionally misconstrued the law on garnishments and how bankruptcy law relates to garnishments. This was obstruction of justice.
Skipping ahead to August 31, 1999, a date on or about which Judge Harris caused to be mailed to Railsback and Meyer a MEMORANDUM OF OPINION which contained facts and conclusions of law and in doing so violated CR 52 which required that he have the proposed findings of fact and conclusions of law presented to the defeated party five days prior to their entry. This mailing was made with the intent to defraud Railsback of his property rights, mail fraud, a denial of Railsback’s intangible right to his honest services. Furthermore, Harris intentionally misconstrued the Washington garnishment statutes, failed to cite the relevant facts on which he relied to make his decision, including identifying a document that was a final judgment on the arbitration matter nor on which date a hearing was conducted on Railsback’s claims of exemptions. This was also in furtherance of the bank fraud part of the conspiracy.
On September 17, 1999, Harris entered a final judgment on the garnishments against Railsback and orders to pay the garnishments, even though Harris, Meyer, Wolfe, Christel, and Ramstead knew there was no final judgment on the arbitration matter and that there had never been a hearing on Railsback’s claims of exemptions. Prior to this hearing, Meyer and Christel mailed documents to each other and Railsback as part of the scheme and artifice to defraud Railsback of his property rights, commit the crime of bank fraud, mail fraud, and assisted Harris in his intentional denial of Railsback’s intangible right to his honest services. It was also obstruction of justice.
Once Harris entered the orders to pay on the fraudulent garnishment judgments, the conspiracy to cover-up the conspiracy and crime of theft-1 (RCW 9A.56.030), the real concealment of these crimes was just beginning.
APPEAL OF GARNISHMENT AND UNDERLYING ARBITRATION MATTER
80-84 – MF, EX, OJ, 14th Amendment due process and property - Meyer mailed numerous pleadings in which he intentionally misconstrued the law in an attempt to cover-up the crime of theft-1 committed by Harris and himself and led to a RULING ON APPEALABILITY signed and entered by Defendant Meath, a commissioner in the Washington Court of Appeals –Division II, and was entered fraudulently in an effort to assist Harris and Meyer cover-up their crime of theft-1, because if these conspirators had been successful in getting away with claiming either that there was a final judgment on the arbitration award, or that Railsback was not entitled to an appeal regarding the arbitration matter through a fraudulent interpretation regarding the appealability of the garnishment matter. Meath mailed this fraudulent ORDER on November 29, 1999 and constituted the crimes of mail fraud, extortion and obstruction of justice.
On February 1, 2000, Appeals Court Chief Judge Bridgewater entered an ORDER DENYING MOTION TO MODIFY, and then as part of the scheme and artifice to defraud Railsback, mailed the document to Railsback, Meyer, and the Clark County Superior Court, and in doing so denied Railsback his intangible right to his honest services. It should be pointed out that the delegation of judicial authority to appellate court commissioners has no basis in the Washington Constitution nor the statutes of the State of Washington and as alleged in Railsback’s original complaint is part of an overall scheme to avoid, cover-up cases which are required to be heard and decided by the judges and justices of the Court of Appeals and State Supreme Court. Furthermore, the Court of Appeals fraudulently entered order did not contain the signatures of three judges, nor was there any statement of facts relied upon or legal justification for the decision as required to meet a minimum standard of due process.
A similar set of events occurred in the Supreme Court when Railsback filed a petition for review of an interlocutory decision of the Court of Appeals. Supreme Court Commissioner Crooks (Where is the constitutional authority for this position), heard oral arguments in which even Mr. Meyer admitted Railsback ‘had some merit’ regarding the appealability of the arbitration matter, but then entered a RULING DENYING REVIEW, and based his decision in large part on an April 30, 1999, order entered by Harris that “can be interpreted as subsuming and denying all of the variously captioned attacks on the judgment that Mr. Railsback had then filed.” The mailing of this order on or about April 26, 1999, was mail fraud, obstruction of justice because Crooks had no authority to make a decision on the merits of any case, and furhtered the plan to extort money from Railsback. Not only that, but Crooks and Meyer schemed to extort additional money from Railsback through sanctions which had no basis in fact or law in an effort to dissuade Railsback from proceeding to petition the courts. As was pointed out to the Supreme Court in Railsback’s MOTION TO MODIFY, the appellate courts are not permitted to engage in “speculation”. Once again the Supreme Court simply entered an order denying a MOTION TO MODIFY, signed only by defendant Chief Justice Richard Guy and mailed to Railsback and Meyer. This was mail fraud, a denial of Railsback’s intangible right to honest services, obstruction of justice and extortion.
LAWSUIT AGAINST CLARK COUNTY
The RICO predicate acts will be much more easily described from this point on.
85-86 HS, OJ – Sheriff’s deputies in the state of Washington have a statutory duty to report crimes when they learn of them. Failure to do so is a gross misdemeanor. There is also a “failure to enforce” exception to the public duty doctrine, which Clark County seems to be relying on heavily, a defense that will eventually be unavailing. Defendant McKay’s refusal to take and make a report based on Railsback’s declaration of March 2, 2000, and handed to Sgt. McKay on March 2, 2000, and his statements to Railsback that he would not take a report concerning crimes committed by a judge, would not issue a case number, would not investigate any allegation of criminal conduct against a judge, attempted to give the declaration back to Railsback so as to avoid any legal responsibility to investigate, stated that he did not consult with a superior about his decision to not make a report or investigate and claimed to have complete authority to make the decision to not investigate. His actions, which Railsback alleges were made after consulting with his superiors, constitute the crimes of obstruction of justice, and a denial of Railsback’s intangible right to McKay’s honest services.
87 – MF, HS, EX, 14th Amendment due process and property - During the next few days, Railsback was in contact with the Sheriff’s department, including numerous phone calls and faxes/letters in an attempt to meet with an investigator to review the evidence which the sheriff’s department knew was contained in Clark County Superior Court Case No. 99-2-00334-2 – Hackett v. Railsback. Individual contacted included defendants Evans, Johnson and Lucas. All these individuals refused to meet with Railsback or arrange for Railsback to meet with an investigator. These acts constitute the crimes of obstruction of justice and an denial of Railsback’s intangible right to their honest services. On March 8, 2000, defendant Evans mailed a letter to Railsback claiming with fraudulent intent and with intentional disregard for the constitutional rights of Railsback, made statements that were intentional misconstructions of the contents of Railsback’s six-page declaration, and in addition to mailing this letter to Railsback in furtherance of a scheme to defraud Railsback, also mailed a copy to Judge Harris; an obvious attempt to intimidate Railsback. In a follow-up call with Evans, Evans stated that he did not even discuss the allegations with Harris, but thought “he should know about Railsback’s complaint.”
On March 13, 2000, after Railsback responded to Evans’ letter of March 8, 2000, Evans faxed a letter to Railsback in which he stated, in part, “ [T]he Sheriff “should not” become involved in an investigation of this sort due to obvious conflict of interest issues.” Evans and the other Clark County related conspirators apparently believe it preferable to let a judge commit crimes rather than perform a duty imposed upon them by law. Railsback even suggested the sheriff call in an “outside” investigative agency, a suggestion that was obviously not in the RICO enterprise’s best interest. This letter was mail fraud, evidence of obstruction of justice and a denial of Railsback’s intangible right to the honest services of Evans, Johnson, and Lucas.
88-90 – MF, HS, OJ, EX, 14th Amendment property – On May 24, 2000, Edward Pavone committed the act of mail fraud and denied Railsback his intangible right to honest services in that he, while conspiring with Lucas, McKay, Evans, Johnson, Hunter, Harris and possibly other Clark County related defendants, denied Railsback’s tort claim merely by stating that “everyone you have contacted in the county has told you that you do not have a case but yet you persist.” In other words, the County was claiming that they had no obligation to investigate tort claims, even though RCW 4.96 states otherwise. The county claimed they did not even conduct an investigation, a claim that was repeated to Railsback by defendant Hunter during a phone call on June 1, 2000.
93 – HS, OJ, 14th Amendment – Defendant Reynolds denied Railsback his intangible right to honest services when he refused to enter a default judgment against Clark County and in Favor of Railsback as required by law and in doing so committed the cited offenses.
94 – HS, OJ, 14th Amendment – On July 10, 2000, defendant Reynolds once again committed these crimes by refusing to enter the default judgment to which he knew Railsback was entitled to as a matter of law. His only excuse was that he “didn’t feel comfortable” and was going to require Railsback to give notice of a hearing to Clark County, notice which Clark County was not entitled to and would have been used as an excuse for defendants Railsback and all those associated with Clark County to argue that by giving notice, Railsback waived his right to the default judgment. There was and is no legal justification for imposing that requirement.
95 – HS, OJ, EX, 14th Amendment due process and property – For the third time in two weeks, on July 13, 2000, Reynolds committed these same crimes without justification or legal support by refusing to enter a default judgment to which he knew Railsback was entitled.
96, 97 – MF, HS, OJ, EX, 14th Amendment due process and property – Reynolds causation of the faxing of the documents listed to the Clark County Prosecutor’s office and defendant Curt Wyrick, constituted the crimes listed and clearly indicated that Reynolds discussed the cover-up of the criminal conduct of Harris, the Clark County defendants, and Meyer, Wolfe, Christel and Bank of America.
MF, HS, OJ, 14th Amendment – Curt Wyrick mailed or caused to be mailed several documents including an “Answer”, “Certificate of Mailing”, and “Motion to Dismiss” as part of the enterprises efforts to cover-up criminal conduct by the enterprise and deny Railsback his 14th Amendment rights to due process and property.
98-102- MF, HS, OJ, EX, 14th Amendment due process and property – Refusal of Reynolds to enter default judgment on 7/19/00, was MF, HS, EX, 14th Amendment violations. Reynolds directive to the Klickitat County Sheriff’s office to order Railsback’s arrest if Railsback did not immediately leave the courthouse violated Railsback’s 4th Amendment rights against unlawful seizures and was an unlawful imprisonment under Washington law. This was obstruction of justice. Reynolds faxing copies of the documents to Clark County on or about July 19, 2000, was done in furtherance of the scheme and artifice to defraud Railsback and was MF, HS, OJ, EX, and 14th Amendment violations. The mailing of documents by Scott Anders and other Clark County defendants on July 20, 2000, constituted the crimes of mail fraud, denial of Railsback’s intangible right to honest services, obstruction of justice, and 14th Amendment violations. There is plenty of evidence by that time Reynolds, Anders, Wyrick, Harris were conspiring to cover-up their crimes which would have surely been exposed if Railsback obtained the default judgment to which he was entitled. A $1.2 million judgment would have raised questions from the citizens of Clark County and their RICO activities related to Railsback and likely many other citizens would have been exposed.
103 – On July 25, 2000, the members of the Clark County Board of Commissioners were put on notice as to the crimes committed by that time by a number of the defendants during a public hearing and warned that they could very well be held civilly and criminally liable if they did not take appropriate steps to prevent the commission of these and future crimes. Based on this notice and many other instances, all three county commissioners knew that at least two acts of racketeering activity had already been committed and that Judge Reynolds and Scott Anders were going to commit additional crimes at a hearing scheduled for July 27, 2000. On this basis, each of the commissioners became guilty of at least a violation of Title 18 U.S.C. 1962(d) for violation of 1962(c). Lucas, Anders, and Johnson were also at this hearing. The commissioners had a duty under 42 U.S.C. 1986 to prevent the violation of Railsback’s rights under 1985(2) and (3).
104 – MF, HS, OJ, 14th Amendment – Reynolds and Anders conspired and actually denied Railsback’s right to the default judgment and committed the cited crimes. The mailing of the order denying the default judgment was mail fraud, the refusal to enter the judgment was a denial of Railsback’s intangible right to honest services, and their coordinated effort to deny entry of the default judgment was obstruction of justice.
106 – Defendant Andersen’s refusal to investigate or charge Reynolds with official misconduct based on Reynolds refusal to perform a duty imposed upon him by law, which resulted in theft-1 and obstruction of justice, was itself obstruction of justice and a denial of Railsback’s intangible right to honest services.
107 – Anderson committed an act of mail fraud by making a fraudulent excuse to not performing a duty imposed upon him by law in furtherance of the goals of the RICO enterprise.
108 – Obstruction of justice, and extortion by all persons named in 108.
109 – Defendant Bob Shannon was informed by Railsback regarding the attempt by the defendants in 108 to intimidate Railsback through the instigation of a malicious prosecution and after having been informed of the criminal nature of the conduct by those and many others, failed to take any action as required by law to bring those individuals to justice and thus committed the crimes of obstruction of justice and denied Railsback his intangible right to honest services.
110 – Obstruction of justice and witness tampering by Lucas and other defendants.
112 - 113– Obstruction of justice and witness tampering by Lucas and other defendants.
116 – Mail fraud by Andersen. Andersen was not a party to the mandamus action and had no legal right to make arguments for either Judge Reynolds or Clark County.
118 – The State of Washington never investigated the allegations in Railsback’s tort claim against the state and approximately one month after being filed, the state mailed a letter to Railsback claiming that there was no basis for Railsback’s claim, even though the state never conducted an investigation. This was an act of mail fraud, and a violation of Railsback’s intangible right to honest services. Defendants Locke, Gregoire, Billingslea, and Blonien had been put on notice on many occasions beginning in March, 2000, about the criminal acts of judges and other local officials in S.W. Washington and even though they were provided with irrefutable evidence on several occasions, claimed that neither the governor nor the attorney general had either the statutory or constitutional authority to investigate crimes committed by public officials in the state of Washington, which each of them knew to be a lie when they made these statements for themselves or a representatives of the Governor or AG. Other individuals within the offices of the Governor and AG also made similar claims at various times. Blonien and Billingslea even mailed letters to Railsback stating that they had none of this authority and thus committed the acts of mail fraud, denied Railsback his intangible right to honest services and obstructed justice in an effort to cover-up and conceal criminal conduct by themselves and other of the defendants in this RICO/Civil Rights action.
119 – Mail Fraud, Obstruction of Justice by Andersen.
121 – Clark County filed motion to intervene after Andersen, Merritt, Carpenter, Reynolds, or another defendant discussed the petition for the writ of mandamus, even though all the defendants knew that Clark County was not entitled to notice of the proceeding, and thus the defendants committed the crime of mail fraud, obstruction of justice, denied Railsback his intangible right to honest services, and denied Railsback his 14th Amendment rights to due process and property.
122 – 128 – Defendants Merritt, Carpenter, Crooks, and Guy, along with Clark County related defendants and Andersen and Reynolds, conspired to obstruct justice by denying Railsback a hearing and decision by the entire Supreme Court in his mandamus action as required by the Washington Constitution, RCW 7.16.150 et seq., and RAP 16.2. This resulted in obstruction of justice, a denial of Railsback’s intangible right to honest services, and denied Railsback his 14th Amendment rights to due process and property, as well as equal protection under the law.
MEANWHILE BACK AT THE RANCH
129-136 – Judges Rulli, Bennett, and Johnson committed the crimes of obstruction of justice, and denied Railsback his intangible right to honest services by refusing to enter the default judgment to which each of them knew Railsback was entitled to as a matter of law on the days cited for each of them. Johnson also committed mail fraud by returning the proposed judgment by mailing it to Railsback when she knew that she was required to file it with the court. Bennett obstructed justice when he talked to one or more individuals in Skamania County prior to informing Railsback he would not enter the judgment and once again the next day when he told Railsback that Harris would be assigning a judge to the case, even though Bennett knew that the case involved allegations of criminal conduct by Harris.
Judge Harris, Scott Anders or some other Clark County related defendant then discussed or in some other way communicated the problem Clark County was having with Railsback’s persistent attempts to obtain the default judgment to which he was entitled to as a matter of law with Judge Reynolds. This is obstruction of justice.
Shortly thereafter, Reynolds commits the crime of mail fraud by sending a letter to Judge Warning requesting that Warning handle the case and that all Clark County Superior Court Judges had recused themselves, which Reynolds knew to be a lie, a denial of Railsback’s intangible right to honest services and obstruction of justice. In fact, not one Clark County Superior Court Judge had recused themselves. Apparently, Judge Harris recused all of them on his own initiative in an effort to further conceal the conspiracy to obstruct justice and the RICO enterprise.
Warning proceeded to destroy documents delivered to him related to entry of the default judgment and thus committed the crime of obstruction of justice. Warning then fraudulently entered an order denying Railsback motion for default judgment and also imposed sanctions on Railsback and then mailed a copy to Railsback and Clark County. The crimes committed by Warning in this event are mail fraud, extortion, obstruction of justice, a denial of Railsback’s intangible right to honest services, and his 14th Amendment right to due process, and property.
135 What about this is not clear as it regards obstruction of justice by Andersen and Hollis, especially if one keeps Salinas in mind?
PETITION TO RECALL SHERIFF LUCAS
137-147 How can the court not see the obvious instances of mail fraud, obstruction of justice, the denials of Railsback’s intangible right to honest services related to the recall of Sheriff Lucas is beyond me. 138 shows clear obstruction of justice and extortion by Hunter. The failure to inform Railsback of the date of the hearing was obstruction of justice. Warning’s perjury related to the declarations was an obstruction of justice. The procurement of declarations that were actually written by Lucas’ attorney, Joseph Quinn, also obstructed justice in that Mr. Quinn actually drafted every one of the declarations himself. The declaration of Deputy Mike Harris was obtained through the crime of witness tampering and is punishable under both 18 U.S.C. 1503 and 1512. How does Railsback know this? Simple. The general and specific events that Mike Harris testified to never happened and Railsback at all times in brief conversations with Mike Harris never, ever, displayed anything other than an amazement that the racketeers could possibly ever think they would succeed in covering up their crimes. Based on other stories from other deputies, both current and former, it can come as no surprise that Lucas is a vindictive person who will do anything to ruin the lives and careers of any deputy who might even think of pointing out his unethical or illegal behavior.
Everything in this portion of the complaint reeks of obstruction of justice, due process violations, mail fraud, and the ongoing denial of Railsback’s intangible right to honest services and a denial of his 14th Amendment rights to due process, property and equal protection under the law.
RICO PREDICATE ACTS SINCE THE FILING OF COMPLAINT
The steady stream of RICO predicate acts has continued non-stop even after the complaint was filed on January 24, 2001, but as there are plenty prior to that time, the predicate acts since that time are surplus and may be introduced at trial to establish the ongoing criminal conduct of the defendants in their desperate, but failing attempt to avoid both criminal and civil liability.
CONCLUSIONS
1. Railsback has properly alleged all the elements of violations of 18 U.S.C. 1962(b),(c),and (d) and is supported by Salinas v. United States, United States v. Maloney, and Frega v. United States. Each and every defendant knew that at least two RICO predicate acts were taken and each of them agreed to facilitate the objectives of the various RICO enterprise(s) and thus are all guilty of at least section 1962(d) for violating (b) and (c).
2. Railsback has properly alleged violations of 42 U.S.C. 1983 and 1985(2),(3); and Judge Burgess’ claims to the contrary are fraudulent on their face and so outrageous that one must conclude his dismissals of defendants from these claims were a clear result of his malicious denial of Railsback’s intangible right to his honest services and a fraud upon the court, for which there is no time limitation period for seeking relief. Because Judge Burgess also knew there were at least two RICO predicate acts committed as part of a racketeering enterprise and has failed, not only to take action to report the criminal conduct, but has taken an active part to conceal it, cover it up, and thus facilitate it; and is thus is guilty of at least one count of 18 U.S.C. 1962(d). See Salinas.
3. Because no defendant has apparently investigated any of the factual allegations prior to May 25, 2001, after having each been put on notice on several occasions, the answers of all defendants in this case were fraudulently filed with the court and are thus a part of the RICO enterprise’s efforts to conceal the objectives and individuals involved in the RICO enterprise(s). Defendants such as Gov. Locke, AG Gregoire, Chief Justices Guy and Alexander, the various superior court judges, Sheriff Lucas, and the prosecutors and their deputies are all in positions of power and authority to take action and cause the prosecution of all the other defendants, had facts available to them to establish at least probable cause for the various RICO predicate acts and each of them failed to take any action. Therefore, each of these individuals, at a minimum, were in violation of 18 U.S.C. 1962(d). Because many of the facts are also relevant to violations of 42 U.S. C. 1983 and 1985 and they chose to do nothing, they are also guilty of violations of §§ 1983, 1985, and 1986. That they are guilty of violating 18 U.S.C. 1346 as I relates to their denial of Railsback’s intangible right to each of their honest services cannot possibly be questioned.
4. Because no defendant, nor the AG nor the Clark County Board of Commissioners have claimed to have investigated the allegations in the complaint, the determinations by the AG, and the Clark County Board of Commissioners and prosecuting attorney to indemnify employees of the state and county from 42 U.S.C. 1983, 1985, 1986 could not possibly have been made in good faith, they are personally liable for the 1983/1985 claims.
5. Because no defendant has been able to point to an order denying Railsback’s motion to vacate the arbitration award, nor to a date on which Railsback’s garnishment claims of exemptions was heard, and every defendant knew or should have known these facts prior to the filing of this lawsuit, they are all guilty of bank fraud, obstruction of justice, denial of Railsback’s intangible right to honest services, mail fraud, and Railsback’s 14th Amendment right to due process and property.
6. Because the county and state have accepted liability for the 1983/1985 violations of its officials, all individual defendants may be dismissed from the 1983/1985 claims, but must remain as defendants to the RICO causes of action. Because no public officials duties can possibly include the commission of crimes, each of the individual public officials are no longer entitled to a publicly paid defense and must either represent themselves or hire their own personal attorneys.
7. All defendants must be reinstated in the interest of justice.
8. When this pleading is combined with the complaint and other pleadings of the plaintiff and various defendants, there are no disputed material facts and the evidence is overwhelming and insurmountable. There is not just a preponderance of the evidence, not even just clear and convincing evidence. The evidence amounts to proof beyond a reasonable doubt, if not any doubt.
SUMMARY JUDGMENT IN SKAMANIA COUNTY CASE NO. 00-2-00090-3
IN FAVOR OF RAILSBACK IS REQUIRED
In consideration of the ongoing outrageousness, Railsback demands the relief requested in the original complaint. Regardless of what one may wish to think, there is absolutely no possible dispute that Railsback is entitled to an immediate partial summary judgment on the garnishment related issues and the $1.2 million judgment in the lawsuit filed against Clark County filed in Skamania County Case No. 00-2-00090-3 – Railsback v. Clark County. The application of CR 55 differs in a few ways from FRCP. In Washington:
1. “The action of the court, as held in Haynes v. Schwartz, 5 Wash 433. 32 Pac. 220, in granting default relates back to the time at which the motion for default was made.” Skidmore v. Pacific Creditors 18 Wash 2d 161, 138 P2d 664 (1943).
2. “The Court is required under CR 55(b)(1) to enter judgement upon motion and affidavit when the amount is certain or can by computation be made certain.” J-U-B Engineers v. Routsen, 69 Wn App 148, 848 P2d 733.
3. “[T]he White [White v. Holm , 73 Wn 2d 348, 438 P2d 581 (1968)] requirements are of equal importance and that the trial court was incorrect in concluding otherwise…The most that can be said is that Bankers acted with due diligence after it learned that the default judgement had been entered. That does not, however, provide it with a defense or excuse its neglect.” Prest v. American Banker’s Life Assurance Co., 79 Wn App 93, 900 P2d 595 (1995).
4. “The second factor considered under the “good cause” standard requires a showing of due diligence in making an appearance after the court enters order of default. Here, the trial court made no finding as to whether Curtis acted with due diligence because it already had determined that there was no excusable neglect. As there was no excusable neglect, we need not determine whether Curtis acted with due diligence”. Estate of Stevens, 94 Wn App 20, 971 P2d 58, citing Lindgren v. Lindgren, 58 Wn App 588, 794P2d 526 (1990).
5. “Where suit is for liquidated amount, default admits right to recover sum demanded.” Skidmore v. Pacific Creditors, 18 Wn 2d 157, 138 P2d 664 (1943).
Based on the clear application of Washington law, since: (1)Clark County failed to appear, answer, or otherwise defend within the statutory time limitation period; (2) Did not have excusable neglect and never even tried to assert excusable neglect; (3) Did not have a meritorious defense based on the Clark County’s claim, during a hearing on a petition to recall defendant Anders on May 25, 2001, that as of that date had never investigated the allegations in Railsback’s complaint served almost one year prior to that date and cannot possibly be construed as due diligence; (4) The claim was for a sum certain of one that could by calculation be made certain; (5) Even if there was no corruption and obstruction of justice by defendants related to Clark County, Judge Reynolds, and others; (6) Railsback is entitled to the amount of the demand in the complaint plus interests and costs, AS A MATTER OF LAW !!!!!!!.
SUMMARY JUDGMENT ON RICO CLAIMS IS ALSO REQUIRED
In reality, the same can be said for the RICO causes of action. There are no material facts in dispute. In fact, aside from claims that particular defendants lacked knowledge of the actions of some of the other defendants, no fact alleged by Railsback has been denied. The damages to which Railsback is entitled on the RICO causes of action require only a relatively simple effort to make them certain and do not need to go to a jury. All the court needs to do are some relatively simple calculations to arrive at the RICO damages portion of the complaint, including the trebling of the damages in the Skamania County lawsuit, loss of income Railsback would have otherwise earned and trebled, return of all funds garnished and their trebling, costs associated with the other various Washington court proceedings, plus interest on all these sums. How the damages should be divided amongst the defendants may require a jury or could be left for the court, especially since the damages require only a mere calculation and are subject to little, if any, discretion.
SUMMARY OR PARTIAL SUMMARY JUDGMENT ON CIVIL RIGHTS CAUSES
OF ACTION IS APPROPRIATE
Based on the vastness of the Civil Rights violations and the positions of power occupied by many of the defendants, an extremely large award is certainly justified. The amount demanded in the complaint should only serve as a starting point from which to go higher, especially in light of the attempts to conceal and further obstructions that have been perpetrated on Railsback and this Court since the complaint was filed on January 24, 2001. Liability on the Civil Rights claims is so obvious, only the damages need to be determined, and how they should be divided, needs to be submitted to a jury for determination.
Respectfully submitted this 10th day of July, 2001.
______________________________
Donald E. Railsback
Here is a document I will be filing in US District Court and a motion and with the 9th Circuit Court of Appealsas a petitin for a writ of mandamus or appeal:
RELIEF SOUGHT
1. Vacation of trial courts order to dismiss complaint in U.S. District Court Case No. C01-5052 FDB.
2. Summary judgment on claim related to Skamania County Superior Court Case No. 00-00090-3 in the amount of $1.2 million plus interests and costs.
3. Summary judgment on RICO damages in the amount of $2.4 million plus interest and costs.
4. Summary judgment on liability against all defendants on Civil Rights Claims in U.S. District Court Case No. C01-5052 FDB.
5. Direct that trial court conducts trial as to civil rights claims in U.S. District Court Case No. C01-5052 FDB.
6. Disqualification of U.S. District Court Judge Franklin D. Burgess from continuing to hear Case No. C01-5052 FDB.
ISSUES PRESENTED
1. Did trial court abuse its discretion in dismissing complaint for lack of subject matter jurisdiction?
2. Is petitioner ("Railsback") entitled to summary judgment related to claims in Skamania County Superior Court Case No. 00-00090-3 – Railsback v. Clark County as a matter of law?
3. If Railsback is entitled to summary judgment in ‘2’, is Railsback entitled to summary judgment on RICO damages as a matter of law?
4. Is Railsback entitled to partial summary judgment as to liability on the Civil Rights Causes of Action?
5. Should Judge Franklin D. Burgess be disqualified from hearing this case?
Issue #1 - Did trial court abuse its discretion in dismissing complaint for lack of subject matter jurisdiction?
The trial court abused its discretion by dismissing the complaint for lack of subject matter jurisdiction. Jurisdiction of the U.S. District Court for RICO actions is based on Title 18 USC 1964(c). For Civil Rights actions, jurisdiction is based on Title 42 USC 1981 et seq. At no time did the trial court or any defendant dispute the jurisdiction for these causes of action.
The trial court erred for the following reasons:
1. The alleged order of the Washington Supreme Court was written by an appellate court commissioner, a position for which there is no legal authority, and was dated April 26, 2000. Therefore, since there is no legal authority for appellate court commissioners, the order is void abinitio. This particular order was in regard to Clark County Superior Court Case No. 99-2-00334-2 – Hackett v. Railsback, involving an arbitration confirmation proceeding and a garnishment action. The fact is, there is no final judgment on the arbitration matter in the trial court, and there was no hearing on Railsback’s claims of exemption as required by law in the garnishment judgment. If there was no final judgment on the arbitration matter in the trial court, the garnishment judgment was unlawfully entered because there was no judgment on which to base a garnishment proceeding. Defendants Harris, Meyer, Christel, Wolfe, and Ramstead all knew this was true at the time Harris entered the unlawful garnishment judgment. Not one defendant has been able to point to a document that can be construed to be a final judgment of the trial court judge in Clark County Superior Court Case No. 99-2-00334-2 nor a date on which a hearing on Railsback’s claims of exemption in the garnishment action was conducted. Because the defendants cannot identify this information, it is also conclusive proof that Railsback’s rights to due process and property were violated.
2. Railsback’s causes of action for section 1983/1985/1986 violations and RICO claims were not conclusively established until after April 26, 2000; so it is an impossibility for these claims to have been litigated in state court.
3. Railsback was denied his Fourteenth Amendment right to substantive and procedural due process in Skamania County Case No. 00-2-00090-3 – Railsback v. Clark County; a tort claim against Clark County and was initiated on June 9, 2000; which is certainly after April 26, 2000. Railsback’s Fourteenth Amendment rights to due process were also violated in his petition for a writ of mandamus against Skamania County Superior Court Judge (defendant) E. Thompson Reynolds (Washington Supreme Court Case No. 69896-1). Washington Constitution (Article IV, Section 4 - SECTION 4 JURISDICTION. The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers [includes superior court judges]), the Washington Statutes (RCW 7.16.250 - Hearing. If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue immaterial statements not affecting the substantial rights of the party, the court must proceed to hear or fix a day for hearing the argument of the case.) Defendants conspired to deny Railsback a hearing in this matter as required by the Washington Constitution or to issue a written decision because if there had been a hearing and published opinion as required by the laws of the state of Washington, the Washington supreme court would have been forced to grant the writ and enter a judgment in favor of Railsback and against Clark County in the amount of $1.2 million plus costs and interest. Once a judgment would have been entered on the petition for a writ of mandamus, the attendant publicity would have eventually led to a public outcry concerning the corruption in the courts of Washington that extends all the way to the state supreme court. Railsback alleged in his complaint that individuals who operate and control the Washington supreme court utilize the illegal and unconstitutional commissioners to dispose of cases that they do not want the public to learn about as part of a scheme to defraud Railsback and the citizens of Washington so as to continue to operate control the courts of Washington through a pattern of racketeering activity. There is no final judgment on this matter in any Washington court on either the petition for a writ of mandamus or the underlying Skamania County Superior Court Case. That Railsback has never been granted a hearing on the petition for a writ of mandamus is conclusive proof that his rights to due process and property have been violated.
4. The trial court erred when it wrote that the only court to which Railsback could turn was the United States Supreme Court. The U.S. Supreme would have denied jurisdiction since there was no final judgment in the state courts, as can be seen from above, on any matter litigated in state court. "To be reviewable by this Court, a state-court judgment must be final in two senses: it must be subject of no further review or correction in any other state tribunal; it must be final as an effective determination of the litigation and not merely interlocutory or intermediate steps therein. It must be the final word of a final court." Market Street R. Co. v. Railroad Comm’n of Cal., 324 U.S. 548, 551 (1945); cited in Jefferson v. City of Tarrant, 522 U.S. 75. Since there never was a final decision on all the litigation in the state court, nor any litigation in the Washington courts, the U.S. Supreme Court would not have had jurisdiction, and jurisdiction for Railsback’s Civil Rights, RICO and related state claims are properly within the jurisdiction of the U.S. District Court.
5. Attached to this brief is a declaration by Railsback concerning a meeting Railsback had with Washington State Supreme Court Chief Justice (defendant) Gerry Alexander on August 12, 2002, in which Alexander admitted to a number of facts which clearly establish fraud upon the court. While this document is not a part of the record in the trial court, and Railsback has certainly clearly alleged fraud upon the court in his complaint in U.S. District Court. Judgments or orders obtained through fraud upon the court are void ab initio. It is also proof that Alexander and other defendants conspired to and actually did obstruct justice. Since the obstruction of justice also resulted in a denial of Railsback’s right to due process it is also proof of a violation of Railsback’s civil rights under Section 1983/1985.
6. The District Court’s reliance on District of Columbia Court of Appeals v. Feldman 460 U.S. 462, 482 (1983) is misplaced because as on can readily see above, Railsback’s federal claims were never litigated in the state courts, and there are no final judgment in any of the state court lawsuits. Feldman also makes no mention of Title 42 U.S.C 1983/1985 violations. Feldman certainly did not allege fraud upon the court nor violations of the federal RICO statutes.
7. The District Court’s reliance on Branson v. Nott, 62 F.2d 287 (9th Cir. 1995) is also misplaced. In Branson, there actually was a final determination in the California State Supreme Court on all the issues Branson attempted to raise in a federal lawsuit. Furthermore, it appears that Branson failed to allege any specific facts that could support a federal action based a denial of a fair and full hearing in the state court. This is certainly not the case with Railsback’s complaint.
8. MARTINEZ v NEWPORT BEACH CITY, 125 F.3d 777 (9th Cir. 1997) is much more relevant and directly on point
This circuit has repeatedly found that the "unflagging obligation of the federal courts to exercise the jurisdiction given to them . . . is particularly weighty when those seeking a hearing in federal court are asserting . . . their right to relief under 42 U.S.C. S 1983." Miofsky, 703 F.2d at 338, citing Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980). See also San Francisco County Democratic Cent. Committee v. Eu, 826 F.2d 814, 825 n.19 (9th Cir. 1987), aff'd, 489 U.S. 214 (1989) (district court's obligation to exercise jurisdiction and to abstain only in exceptional circumstances is particularly weighty in an action under S 1983). "Under such circumstances conflicting results, piecemeal litigation, and some duplication of judicial effort is the unavoidable price of preserving access to the federal relief which section 1983 assures." Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980), cited with approval in Signad, Inc. v. City of Sugar Land, 753 F.2d 1338, 1340 (5th Cir. 1985). There is good reason for the disfavor with which our circuit has approached the potential application of Younger/Colorado River abstention to suits under S 1983. The purpose of the S 1983 action is not well-served by the application of Younger abstention to situations where a parallel S 1983 action is pending in state court. Section 1983 was intended to provide a remedy in situations where states prohibit practices but provide inadequate remedies, and in instances where state remedies, though theoretically adequate, are unavailable in practice. Monroe v. Pape, 365 U.S. 167, 173 -74 (1961). The Court in Monroe held that a plaintiff may properly bring a S 1983 suit to federal court even if the state provides judicial remedies that appear completely adequate to redress the injuries. Id. at 183. In other words, a plaintiff need not exhaust state remedies before initiating a S 1983 suit in federal court. The Court declared that "[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Id. The importance of a federal forum to vindicate federal constitutional rights has since been reasserted at various times throughout the Court's history. See, e.g., Patsy v. Board of Regents of Florida, 457 U.S. 496, 503 (1982) (reaffirming Supreme Court precedent that S 1983 granted federal courts "a paramount role in protecting constitutional rights.").6 MARTINEZ v NEWPORT BEACH CITY, 125 F.3d 777 (9th Cir. 1997)
.
9. Allen v. McCurry, 449 U.S. 90 (1990) also makes it clear that where a plaintiff alleges that he did not have a full and fair hearing in state court. In other words, collateral estoppel does not apply in this case, even if there had been a final judgment in the state courts. The most readily obvious instance is the refusal of the state supreme court to hear Railsback’s petition for a writ of mandamus. When the state supreme court chief justice admits that the state supreme court was required by the Washington constitution to hear, decide and issue a written opinion sighed by at least five justices; tells Railsback that he was refusing to obey the constitution and the laws of Washington, it is obvious that Alexander would continue to deny Railsback his right to due process and continue to commit RICO predicate acts in doing so. That denial of due process made it clear that to continue on in the state court would be futile and that Railsback’s only available remedy would have to be in the federal courts.
In reviewing the legislative history of 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was [449 U.S. 90, 101] inadequate to allow full litigation of a constitutional claim, and where state procedural law, though adequate in theory, was inadequate in practice. 365 U.S., at 173 -174. In short, the federal courts could step in where the state courts were unable or unwilling to protect federal rights. Id., at 176. This understanding of 1983 might well support an exception to res judicata and collateral estoppel where state law did not provide fair procedures for the litigation of constitutional claims, or where a state court failed to even acknowledge the existence of the constitutional principle on which a litigant based his claim. Such an exception, however, would be essentially the same as the important general limit on rules of preclusion that already exists: Collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court. Allen v. McCurry, 449 U.S. 90, 100-101.
10. There is little doubt that in a desperate attempt to make this case go away, the defendants will attempt to claim that Railsback is too late with his appellate brief. This argument will have no merit because since there was never a decision on the merits and because the parties, and possibly Judge Burgess, committed fraud upon the court, res judicata does not apply. The Circuit Court of Appeals has taken a very aggressive stance when fraud upon the court has been alleged and established. Pumphrey v. KW Thompson Tool Co., 62 F.3d 1128 (9th Cir. 1995) and Levander v. Prober (9th Cir. 1999) are very relevant to this case.
To determine whether there has been fraud on the court, this circuit and others apply Professor Moore's definition: "Fraud upon the court" should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Gumport v. China Int'l Trust and Inv. Corp. (In re Intermagnetics Am., Inc.), 926 F.2d 912, 916 (9th Cir. 1991) (quoting 7 James Wm. Moore et al., Moore's Federal Practice P 60.33, at 515 (2d ed. 1978)).
Just as a court may use its inherent power to protect its integrity by vacating a judgment obtained by fraud, it also may amend a judgment for the same purpose. When a court vacates a judgment obtained by fraud, it not only rids itself of the defilement caused by the fraud, but also restores balance and fairness between the parties by removing the benefit gained by the party that committed the fraud. Amending a judgment serves these same goals by removing the benefit -- for example, the avoidance of a judgment against itself -- that the party gained by committing fraud on the court. Levander
There can be no serious question but that the defendants in this case, and the attorneys that are representing them have committed fraud upon either the state courts or the U.S. District Court, or both. It is also well established that there is no time limitation period on any judgment that has been obtained through fraud upon the court. There are numerous cases going back to at least Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). Federal Rule of Civil Procedure 60(b) is the appropriate rule in this case.
ISSUE No. 2 - Is petitioner ("Railsback") entitled to summary judgment related to claims in Skamania County Superior Court Case No. 00-00090-3 – Railsback v. Clark County as a matter of law?
Railsback filed this Skamania County Case against Clark County because the Clark County Sheriff and prosecutor refused to accept nor investigate a citizens report of criminal activity concerning the crimes being committed against Railsback by defendants Meyer, Christel, Wolfe, and defendant Clark County Superior Court Judge Robert L. Harris. This is a violation of Railsback’s constitutional right to petition the government
The complaint was for the amount of $1.2 million dollars and was properly served on the defendant Clark County. Clark County failed to appear, answer or otherwise defend within the statutory time limitation period, and therefore Railsback was entitled to a default judgment under Washington law in the amount demanded in the complaint. Defendant Judge Reynolds refused to enter the judgment as required by law when the defendant failed to appear, answer or otherwise defend within the statutory time limitation period and before the plaintiff files his motion and affidavit for default judgment. This was a violation of Railsback’s right to due process. The details the facts surrounding this can be found in Railsback’s original federal complaint. Railsback then proceeded to file a petition for a writ of mandamus in the Washington Supreme Court (Washington Supreme Court Case No. 69896-1) directing Judge Reynolds to enter the default judgment, Reynolds recused himself from the case because he knew that he had engaged in acts of conspiracy with the Clark County related defendants to obstruct justice, commit fraud upon the court and conspired with those individuals, especially defendants do deny Railsback his constitutional rights to due process, property and to petition the government. Reynolds numerous communications with Clark County officials were designed for the purpose of obstructing justice and was part of an effort to illegally shield Clark County from a judgment he knew he was required to enter as a matter of law. His obstructions of justice were also designed to protect defendant Judge Robert L. Harris’ position as the presiding Superior Court Judge so he could continue to control and operate the Clark County Superior court along with other superior court judges through a pattern of racketeering activity. Judge Reynolds’ recusal must be construed to be an admission that he engaged in acts in concert with the Clark County prosecutor’s office and Judge Harris to deny Railsback his right to due process, and to obstruct justice. If this were not the case, why did Reynolds recuse himself? There is no other explanation.
As Railsback’s complaint clearly points out, Washington State Chief Justice (and defendant) Alexander conspired with at least defendants Merritt, Crooke, Carpenter, Harris, Anders, Reynolds, and defendant Skamania County Prosecutor Andersen to deny Railsback a hearing on his petition for a writ of mandamus, a hearing which, to this date, has never been heard; over two years later.
The only reasonable explanation for this denial of Railsback’s right to due process, is because (as explained in Railsback’s complaint and Motion for Summary Judgment) the Washington Supreme Court would have been required to grant the writ for judgment in favor of Railsback in the amount of $1.2 million plus costs and interest. Once that were to occur, it would only be a short time before the fact of the entry of the judgment would have led to wide-spread exposure of the corruption and racketeering in the Clark County Superior courts, the Washington Court of Appeals, and even the Washington Supreme Court. The exposure of the fraud committed upon the courts through the use of unconstitutional officials exercising judicial authority in the appellate courts of Washington would create a public outrage and threaten or actually put an end to the operation of various courts in the state of Washington through a pattern of racketeering activity. It would also expose many of the racketeers to the very real possibility of criminal prosecution once these facts were exposed to the light of day, threatening the ability of public officials to continue to operate their various offices through a pattern of racketeering activity. While this does touch on the issue of the RICO causes of action, it is obvious that all the defendants conspired together to deny Railsback his rights to due process and his property in the form of an approximately $3,500 garnishment judgment and his property right to a $1.2 million judgment plus costs and interest.
The defendants cannot maintain that Railsback did not state a claim for which relief could be granted in the state court action. Every court and judicial officer who had the matter before them determined in every instance that Railsback had stated a claim for which relief could be granted, including the beloved and unconstitutional state supreme court commissioner, defendant Crooks. If even corrupt judicial officers recognized that Railsback had stated a claim for which relief could be granted in his state court lawsuit, the defendants certainly cannot question those rulings now after over two years have passed.
Recall of Anders
In May of 2001, Railsback filed a petition in Clark County Superior Court (Case No. 01-2-01947-7 to recall defendant Anders who had been appointed to an elected position as a Clark County District Court Judge and previously was the deputy prosecutor representing Clark County in Railsback’s lawsuit against Clark County initiated almost one year prior to the recall action. Attorney Joseph Quinn represented Anders and Clark County during the hearing on the petition to recall Anders, stated in his ‘Memorandum in Opposition to Recall’ that "Railsback attempted to file a complaint about the Judge (Harris) with the Clark County Sheriff’s Office, but they found his charges so lacking in merit or factual support they declined to file a report or investigate." This is an admission that while Defendant Anders was still a deputy prosecutor; none of the defendants had investigated the factual allegations alleged in Railsback’s report of criminal activity by defendants Harris, Meyer, Christel, and Wolfe. If there was no investigation, how could the County possible conclude there was no merit to the allegations? There was no investigation and there is no report of an investigation because all the defendants know that every one of the allegations is true.
The problem for the Clark County is that Anders was the deputy prosecutor representing the county in Railsback’s lawsuit against Clark County. Almost one year later, Anders, through his attorney alleges that the County never investigated the claims in Railsback’s tort claim or his lawsuit against Clark County. The County clearly did not have excusable neglect or almost one year later could the County possibly claim to have a meritorious defense. How could they if they never investigated the claims?
Summary as to issue #2
The principle of collateral estoppel must be applied in this situation and this court is required to enter judgment in favor of Railsback based on his entitlement to a default judgment of $1.2 million plus costs and interests on his claim related to his Skamania County lawsuit against Clark County. Clark County failed to answer, appear or otherwise defend within the statutory time limitation period and did not have excusable neglect (nor did they ever even argue they had excusable neglect) nor can they now maintain that they established a meritorious defense (how can you if they never investigated the claims a year later. Furthermore, no defendant opposed nor submitted documents or affidavits in opposition to Railsback’s motion for summary judgment (CP #65) as required by FRCivP 56 on this issue, because the uncontroverted facts and the law can lead to no other result. See Railsback’s Motion for summary Judgment for further legal argument.
Railsback filed a motion for summary judgment (CP #65) and no defendant has filed an affidavit denying any of the factual allegations in the complaint. Because they did not, the court must accept as true all uncontroverted factual statements contained in the complaint and motion for summary judgment. There is good reason none of the defendants did filed affidavits; they all know that if they had denied the factual allegations under the penalty of perjury, Railsback has the evidence to prove that those statements would have knowingly false.
There is one fact that simply cannot be explained away. If Railsback was not entitled to the default judgment as a matter of law, why have so many of the defendants conspired to do everything possible to prevent Railsback from having a full and fair hearing on his petition for a writ of mandamus? If Railsback were wrong on the law, it would have been a simple matter for the Washington Supreme Court to hear oral arguments as required by law and issue a written decision on the case? The answer is obvious. Every one of the defendants knew that the facts and the law were so clear the Washington Supreme Court would have been forced to grant Railsback the writ he requested. It is as plain and simple as that, so the defendants conspired to simply refuse to hear the case in the desperate hope that Railsback would simply go away. There is no other reasonable interpretation or conclusion.
Because no defendant has complied with FRCivP 56 (e) and submitted affidavits in opposition to summary judgment, Railsback’s allegations of fact must be construed to be true.
e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affinant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Railsback met his burden in his motion for summary judgment, thus shifting the burden to the defense. Since no defendant has submitted an affidavit and has offered nothing more than a general denial, the defendants have not set forth specific facts showing there is a genuine issue for trial. To the contrary, the only thing the defendants have done is to make general claims denying liability. Since they have not met their burden, and Railsback has met his, Railsback is entitled to summary judgment.
Issue #3 - If Railsback is entitled to summary judgment in ‘2’, is Railsback entitled to summary judgment on RICO damages as a matter of law?
If the defendant engages in a pattern of racketeering activity in a manner forbidden by these provisions, and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a claim under 1964(c)…A violation of 1962(c), the section on which Sedima relies, requires (1) conduct (2) of an enterprise (3) through a pattern 14 (4) of racketeering activity. The plaintiff must, of course, allege each of these elements to state a claim. SEDIMA, S. P. R. L. v. IMREX CO., 473 U.S. 479 (1985)
No reasonable person can dispute that Railsback has been damaged in his business or property in that Railsback had an illegal debt in the form of a garnishment judgment in the amount of approximately $3,500, nor for the attempt by the defendants to collect another approximately $50,000 related to the arbitration matter. Based on Railsback’s complaint, Motion for Summary Judgment (CP #65), affidavits other pleadings in this case, and the argument related to issue #2 of this brief, Railsback has also been damaged/injured in the amount of $1.2 million plus costs and interest related to the judgment he was entitled to as a matter of law in Skamania County Superior Court Case No. 00-2-00090-3 – Railsback v. Clark County. This meets the injury requirement in order to maintain a civil RICO action.
Conduct
There is no dispute that the various government employed defendants control, operate, manage or participate in their respective governmental or judicial offices. There is also no reasonable conclusion but that the non-government employee defendants knew of and facilitated the operation of the Clark County Superior courts through a pattern of racketeering activity. This is especially true in that each of them had actual knowledge that there was no final judgment on the arbitration matter and there never was a hearing conducted on Railsback’s claims of exemptions in the garnishment proceeding, yet they stood by and did nothing. This clearly establishes the conduct element of a civil RICO action.
Enterprise
The enterprise element is also obviously met. The following are the enterprises related to this complaint: The office of the Governor of the State of Washington; The Office of the Attorney General of the State of Washington; The Supreme Court of the State of Washington: The Court of Appeals –Division II; the Clark County Superior Court; the Office of the Board of Commissioners for Clark County, WA; the Office of Prosecutor for Clark County, WA; the Office of Sheriff for Clark County; The Skamania County Superior Court; the Office of the Clerk for Skamania County; The Office of Prosecutor for Skamania County; the Office of the Administrator of the Courts for the State of Washington; and the Superior Court of Cowlitz County, WA. Each one of these qualifies as an entity/enterprise for RICO purposes. On top of that, the complaint also alleged an associates-in-fact enterprise encompassing all defendants. The non-government employees being at least liable in the operation, control, or participation in the conduct of the Clark County Superior Court. The enterprises in which the government-employed racketeers is easily deduce by referring to the original complaint. The enterprise element is met.
Pattern
The pattern element requires at least two racketeering predicates. Railsback has certainly alleged far, far more than more than two. Railsback has alleged a significant number of mail fraud predicates, a number of obstruction of justice predicates, and several extortion predicates. All the racketeering predicates are related to one another and pose a threat of continued criminal activity, and no reasonable person could conclude otherwise. These allegations of facts are readily identified and specifically pled in Railsback’s complaint and Motion for Summary Judgment, along with the other pleadings in this case. Thus the pattern element is met
Racketeering Activity
Racketeering activity includes obstruction of justice, mail fraud, extortion, and bank fraud. RICO predicates alleged are very numerous, and really don’t include all the RICO predicates that could have been alleged. After all, how many must one allege to establish to establish a pattern? Certainly a number that is far less than the number alleged in this case.
Apparently the only RICO predicate acts that any of the defendants question are those related to mail fraud, and specifically the mailing of documents to various courts. Based on USA v. Frega the various defendants raising this argument are simply wrong.
Frega, Adams and Malkus were also charged with eighteen counts of mail fraud in violation of 18 U.S.C. SS 1341 and 1346. The mail fraud counts specifically related to mailings done in furtherance of the defendants' alleged scheme to defraud the people of the State of California by depriving them of their right to the honest services of judges of the Superior Court. Most of the mailings listed in the Indictment related to an investigation of the defendants' actions conducted by the California Commission on Judicial Performance and involved documents sent to the Commission by Frega and the judges.2 A few related to proceedings in the Superior Court. USA v. Frega 179 F.3d 793 (9th Cir., 1999).
All that is required is that there be a scheme to defraud and that documents related to and in furtherance of that fraud be placed in the mail. The defendants simply have no argument to counter this obvious fact and attempts to argue a contrary view under the facts of this case must be rejected. Even if this was arguable, and it isn’t, whether any particular mailing was a RICO predicate is a question of fact that must go to a jury. This is true of all other allegations of RICO predicates as well.
Relationship between Pattern and Racketeering elements
"RICO's legislative history reveals Congress' intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H. J. INC. v. NORTHWESTERN BELL TELEPHONE CO., 492 U.S. 229, 239 (1989). "Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case. " "A RICO pattern may surely be established if the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit." H. J. INC. at 242.
As long as the government employed defendants operate, manage, control or participate in the conduct of their respective enterprises, there is a distinct threat of continuing long term racketeering activity. This is especially true of those defendants who are judges and justices in the courts of the state of Washington. The fact that the courts that the pubic should be able to rely upon when seeking justice, and that they are not in Clark County and probably many other counties in the state of Washington; and worst of all, the State Supreme Court, is proof that there is a threat of continued racketeering activity. No reasonable person could possibly question this conclusion, especially when the Chief Justice of the Washington Supreme Court admitted to Railsback during their meeting of August 10, 2002, that the Supreme Court routinely ignores the law. This is especially true involving a case that would expose judicial and governmental corruption and thus threaten the control over those entities by racketeers.
Clearly, all the elements of a civil RICO cause of action for violation of Title 18 U.S.C. 1962 (c) and (d) have been sufficiently alleged and proven.
RICO renders criminally and civilly liable "any person" who uses or invests income derived "from a pattern of racketeering activity" to acquire an interest in or to operate an enterprise engaged in interstate commerce, 1962(a); who acquires or maintains an interest in or control of such an enterprise "through a pattern of racketeering activity," 1962(b); who, being employed by or associated with such an enterprise, conducts or participates in the conduct of its affairs [492 U.S. 229, 233] "through a pattern of racketeering activity," 1962(c); or, finally, who conspires to violate the first three subsections of 1962, 1962(d). RICO provides for drastic remedies: conviction for a violation of RICO carries severe criminal penalties and forfeiture of illegal proceeds, 18 U.S.C. 1963 (1982 ed., Supp. V); and a person found in a private civil action to have violated RICO is liable for treble damages, costs, and attorney's fees, 18 U.S.C. 1964(c). H. J. INC. v. NORTHWESTERN BELL TELEPHONE CO., 492 U.S. 229 (1989)
A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself. See Callanan v. United States, 364 U.S. 587, 594 (1961).
It makes no difference that the substantive offense under subsection (c) requires two or more predicate acts. The interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense. True, though an "enterprise" under §1962(c) can exist with only one actor to conduct it, in most instances it will be conducted by more than one person or entity; and this in turn may make it somewhat difficult to determine just where the enterprise ends and the conspiracy begins, or, on the other hand, whether the two crimes are coincident in their factual circumstances. In some cases the connection the defendant had to the alleged enterprise or to the conspiracy to further it may be tenuous enough so that his own commission of two predicate acts may become an important part of the Government's case. Perhaps these were the considerations leading some of the Circuits to require in conspiracy cases that each conspirator himself commit or agree to commit two or more predicate acts. Nevertheless, that proposition cannot be sustained as a definition of the conspiracy offense, for it is contrary to the principles we have discussed.
In the case before us, even if Salinas did not accept or agree to accept two bribes, there was ample evidence that he conspired to violate subsection (c). The evidence showed that Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under §1962(d). Salinas v. U.S., 522 U.S. 522 (1997)
Based on Salinas, anyone who facilitates the control or operation of an enterprise through a pattern or racketeering activity is also liable.
As with ‘2’, no defendant has complied with FRCivP 56 and bothered to submit an affidavit in opposition to Railsback’s motion for summary judgment on the RICO claims. Mere reliance of general denials cannot defeat a well plead motion for summary judgment. No defendant has denied that they that they participated in, managed, controlled, operated or were employed by an enterprise through a pattern or racketeering activity. Not one allegation of fact has been denied, nor facts presented in opposition. The fact that all defendants have been served and not one has taken any action to disassociate him/herself from the other racketeers means they have continued to facilitate violations of 18 U.S.C. 1962 (a), (b), and (c) and are thus liable pursuant to 1962 (a), (b), (c) and (d) for damages available pursuant to 1964(c). Thus, Railsback has met his burden and is entitled to summary judgment on the RICO causes of action in the amount of approximately $2.4 million plus interest and costs plus the $1.2 million plus interest and costs to which Railsback is entitled on issue #2 as a matter of law. Railsback is also entitled to treble damages related to the garnishment action in the amount of approximately $3,500, which is to be trebled to $10,500 plus interest and costs.
Issue # 4 - Is Railsback entitled to summary judgment as to liability on the Civil Rights Causes of Action?
No defendant has denied even one factual allegation related to the civil rights claims and no defendant complied with FRCivP 56 in responding to Railsback’s Motion for Summary Judgment. Instead, every defendant has decided to rely on a defense of Absolute immunity or qualified immunity.
Absolute Immunity
This Court has refused to extend absolute immunity beyond a very limited class of officials, including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions, "whose special functions or constitutional status requires complete protection from suit." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) HAFER v. MELO, 502 U.S. 21 (1991)
What is clear from Harlow is that absolute immunity is very limited in scope and available to a very limited class of officials, and then only limited to specific functions. In the present case, Clark County Commissioners were not engaging in legislative activity, and there is no mention of absolute immunity for state or local officials for their discretionary acts. As for judges, those acts that are not specific to the carrying out of their judicial functions are not entitled to absolute immunity to 1983/1985/1986 claims. Prosecutors might have some degree of immunity, but as appellants brief will show, most of the acts of the defendants employed as prosecutors are not absolutely immune. Neither Governor Locke and nor AG Gregoire are entitled to absolute immunity. All other individual defendants clearly have no claim to absolute immunity.
Qualified immunity
To the extent that Hafer argues from the Eleventh Amendment itself, she makes a claim that failed in Scheuer v. Rhodes, supra. In Scheuer, personal representatives of the estates of three students who died at Kent State University in May 1970, sought damages from the Governor of Ohio and other state officials. The District Court dismissed their complaints on the theory that the suits, although brought against state officials in their personal capacities, were in substance actions against the State of Ohio, and therefore barred by the Eleventh Amendment.
We rejected this view. "[S]ince Ex parte Young, 209 U.S. 123 (1908)," we said, "it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law." Scheuer, supra, at 237. While the doctrine of Ex parte Young does not apply where a plaintiff seeks damages from the public treasury, damages awards against individual defendants in federal courts "are a permissible remedy in some circumstances notwithstanding the fact that they hold public office." 416 U.S., at 238 . That is, the Eleventh Amendment does not erect a barrier [502 U.S. 21, 31] against suits to impose "individual and personal liability" on state officials under 1983.
We hold that state officials, sued in their individual capacities, are "persons" within the meaning of 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under 1983 solely by virtue of the "official" nature of their acts. HAFER v. MELO, 502 U.S. 21 (1991)
Railsback sued each and every one of the individual defendants in their personal capacity, therefore none of the defendants can claim more than qualified immunity. If the U.S. Supreme Court held that a Governor is not immune from suit for the discretionary exercise of an "official" act in Scheuer v. Rhodes, 416 U.S. 232, 243 (1974), the Gary Locke, the Governor of the State of Washington is not immune from suit in his personal capacity, either.
"By contrast, officers sued in their personal capacity come to court as individuals". HAFER v. MELO, 502 U.S. 21, 27 (1991). Given that all the defendants were sued in their individual/personal capacity, the court must question why the State of Washington and Clark County are providing attorneys for individuals being sued in their personal capacity when there is no entitlement to government provided attorneys to none government employees when sued in civil actions? The reason the state and county are providing government attorneys is it is the only way that they can control the litigation and prevent lower level employees from coming forward to the court and plaintiff with the truth about the criminal and civil violations being perpetrated by those at the top. This ploy is simply another way to help maintain control of various entities through a pattern of racketeering activity.
The state cannot claim immunity under the Eleventh Amendment because pursuant to a provision in the Washington Constitution the state has waived sovereign immunity. One only need to look to 127 Wn.2d 434, SAVAGE v. STATE
Article II, 26 of the Washington State Constitution provides: "[t]he legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." In 1961, the Legislature waived the State's sovereign immunity from civil liability. Laws of 1961, ch. 136, 1 (codified as RCW 4.92.090). As subsequently amended, that section provides:
The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. 127 Wn.2d 434, SAVAGE v. STATE 435
Clearly, the state has waived immunity from suit in Civil Rights or any other action. That the state and county has chosen to indemnify government employees can in no way be construed to grant individual employees immunity from suit in 1983/1985/1986 actions or RICO lawsuits. By providing legal counsel to the government employee defendants, the state and county are in effect agreeing that the actions of each of the government employee defendants were compatible with the customs and policies of the state and county governments. As absurd as it may sound at first glance, that is the exact effect.
State Liability for 42 U.S.C. 1981 et seq claims against state employees
The state can hardly claim that it has not waived immunity from claims alleging violations of Title 42 U.S.C. 1981 et seq. when the legislature passed in :
RCW 4.92.130
Tortious conduct of state -- Liability account -- Purpose.
A liability account in the custody of the treasurer is hereby created as a nonappropriated account to be used solely and exclusively for the payment of liability settlements and judgments against the state under 42 U.S.C. Sec. 1981 et seq. or for the tortious conduct of its officers, employees, and volunteers and all related legal defense costs.
If this is not conclusive as to the liability of the state for violations of sections 1983/1985/1986 by employees of the state, Railsback can certainly not improve upon it.
The legislature of the state of Washington also enacted the following statute in 1999:
RCW 4.92.070
Actions against state officers, employees, volunteers, or foster parents -- Defense by attorney general -- Legal expenses.
If the attorney general shall find that said officer, employee, or volunteer's acts or omissions were, or were purported to be in good faith, within the scope of that person's official duties, or, in the case of a foster parent, that the occurrence arose from the good faith provision of foster care services, said request shall be granted, in which event the necessary expenses of the defense of said action or proceeding relating to a state officer, employee, or volunteer shall be paid as provided in RCW 4.92.130.
The question that cannot be escaped is just how could the attorney general find that state officers and employees acts or omissions were in good faith, when the attorney general claims to have never investigated the allegations in any of Railsback’s petitions to the state or the county? If the attorney general did not investigate the allegations, the attorney general indemnified the state government employees in bad faith. There is no other conclusion. This creates a serious problem for the attorney general. If Gregoire indemnified ate employees in bad faith, she is personally liable for damages to both the state and to Railsback.
Clark County Liability for violations of 28 U.S.C. 1981 et seq by county employees
The legislature of Washington has passed similar statutes concerning the liability of counties for section 1981 et seq lawsuits.
RCW 4.24.470
Liability of officials and members of governing body of public agency -- Definitions.
(1) An appointed or elected official or member of the governing body of a public agency is immune from civil liability for damages for any discretionary decision or failure to make a discretionary decision within his or her official capacity, but liability shall remain on the public agency for the tortious conduct of its officials or members of the governing body.
(2) For purposes of this section:
(a) "Public agency" means any state agency, board, commission, department, institution of higher education, school district, political subdivision, or unit of local government of this state including but not limited to municipal corporations, quasi-municipal corporations, special purpose districts, and local service districts.
(b) "Governing body" means the policy-making body of a public agency.
RCW 4.96.010
Tortious conduct of local governmental entities -- Liability for damages.
(1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.
(2) Unless the context clearly requires otherwise, for the purposes of this chapter, "local governmental entity" means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, or public hospital.
(3) For the purposes of this chapter, "volunteer" is defined according to RCW 51.12.035.
RCW 4.96.041
Action or proceeding against officer, employee, or volunteer of local governmental entity -- Payment of damages and expenses of defense.
(1) Whenever an action or proceeding for damages is brought against any past or present officer, employee, or volunteer of a local governmental entity of this state, arising from acts or omissions while performing or in good faith purporting to perform his or her official duties, such officer, employee, or volunteer may request the local governmental entity to authorize the defense of the action or proceeding at the expense of the local governmental entity.
(2) If the legislative authority of the local governmental entity, or the local governmental entity using a procedure created by ordinance or resolution, finds that the acts or omissions of the officer, employee, or volunteer were, or in good faith purported to be, within the scope of his or her official duties, the request shall be granted. If the request is granted, the necessary expenses of defending the action or proceeding shall be paid by the local governmental entity. Any monetary judgment against the officer, employee, or volunteer shall be paid on approval of the legislative authority of the local governmental entity or by a procedure for approval created by ordinance or resolution.
(3) The necessary expenses of defending an elective officer of the local governmental entity in a judicial hearing to determine the sufficiency of a recall charge as provided in RCW 29.82.023 shall be paid by the local governmental entity if the officer requests such defense and approval is granted by both the legislative authority of the local governmental entity and the attorney representing the local governmental entity. The expenses paid by the local governmental entity may include costs associated with an appeal of the decision rendered by the superior court concerning the sufficiency of the recall charge.
(4) When an officer, employee, or volunteer of the local governmental entity has been represented at the expense of the local governmental entity under subsection (1) of this section and the court hearing the action has found that the officer, employee, or volunteer was acting within the scope of his or her official duties, and a judgment has been entered against the officer, employee, or volunteer under chapter 4.96 RCW or 42 U.S.C. Sec. 1981 et seq., thereafter the judgment creditor shall seek satisfaction for nonpunitive damages only from the local governmental entity, and judgment for nonpunitive damages shall not become a lien upon any property of such officer, employee, or volunteer. The legislative authority of a local governmental entity may, pursuant to a procedure created by ordinance or resolution, agree to pay an award for punitive damages.
Once again, just as in the case with the state employed defendants, how could the county claim that all Clark County employed defendants were acting in good faith when county claims they never conducted any investigation into Railsback’s tort claim against the county, Railsback’s lawsuit against the county, and Railsback’s federal Civil Rights/ RICO complaint?
BUCKLEY v. FITZSIMMONS, 509 U.S. 259 (1993):
Since Tenney, we have recognized two kinds of immunities under 1983. Most public officials are entitled only to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Butz v. Economou, 438 U.S. 478, 508 (1978). Under this form of immunity, government officials are not subject to damages liability for the performance of their discretionary functions when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S., at 818
In determining whether particular actions of government officials fit within a common law tradition of absolute immunity, or only the more general standard of qualified immunity, we have applied a "functional approach," see, e.g., Burns, 500 U.S., at 486 , which looks to "the nature of the function performed, not the identity of the actor who performed it." Forrester v. White, 484 U.S., at 229 .
To be sure, Burns made explicit the point we had reserved in Imbler, 424 U.S., at 430 -431, and n. 33: a prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. See Burns, 500 U.S., at 494 -496. BUCKLEY v. FITZSIMMONS, 509 U.S. 259 (1993)
Memorandum in Support of State Defendants’ Motion for Dismissal for Failure to State a Claim (CP #68)
This is as good a point to address the lame excuses of the state defendants’ desire for dismissal of this case.
Page 4 – Eleventh Amendment argument. There is no need to spend much time on this issue. As this court can readily see from the statutes cited above, the state of Washington has obviously waived sovereign immunity in general and for section 1981 et seq claims specifically. Nothing more need be said.
Page 5 – Rooker- Feldman Doctrine – See argument in discussion of Issue #1 above, which more than adequately addresses this desperate attempt. Clearly, the Rooker Feldman excuse just isn’t going to fly under the facts of this case.
Page 8 – Absolute Immunity – Defendants totally ignore the clearly established principle that immunity goes with function, and not with the person or the position which they hold. The argument by the state’s attorney is meant to intentionally mislead Railsback and the court, and at best can only be called dishonest.
Page 8 - Judges and Judicial Immunity – There are certainly a few acts for which some of the judges are immune to civil liability in the instances where the acts committed are judicial in nature. However, there are many acts committed by some of the judges that are not judicial in nature, for which they are only entitled to qualified immunity. More on this later.
Page 9 – Prosecutorial immunity for Governor, Attorney General and their assistants – These four individuals were sued in their individual capacities and none of them were involved in representing any party in any lawsuit or in any way performing any act closely associated with any judicial proceeding. If so, they should cite the case in which they were representing any party. HAFER v. MELO, 502 U.S. 21, cited earlier in this brief puts to rest this weakest of arguments.
Page 11 – Doctrine of Quasi-Judicial immunity – The state offers up this very creative excuse yet fails to identify any defendant to which such a doctrine would apply. Furthermore, the state only cites state court cases, not federal appellate court decisions. In any event, a state cannot create an immunity for state employees that is not available in federal Section 1981 et seq actions. On top of that, the state has waived immunity to 1981 et seq actions. The only immunities available to any defendant are those available through federal statutes and the common law as decided by the federal appellate courts. This sorry excuse must be rejected since the state defendants can cite no federal authority for such a basis of immunity.
Page 12 – Failure to State a Claim Under 42 U.S.C. 1983 – This is nothing more than wishful thinking on the part of the state defendants.
Page 12 – Plaintiff fails to state claims against defendants in their official capacity – Counsel for state defendants is either unaware, or simply ignored HAFER v. MELO, 502 U.S. 21. Had counsel bothered to do a simple search for cases citing Will v. Michigan, 491 U.S. 58 (1989) counsel would have been directly almost immediately to Hafer. Railsback has sued the individuals in their personal capacity and was not required to sue them in their official capacity. Had Railsback sued the state defendants in their official capacity in a state that had not waived sovereign immunity, the defendants might have had an argument for dismissal since a suit against a state official is a suit against the state. Since Washington has waived sovereign immunity for Section 1981 et seq, it really made no difference whether the state defendants were sued in either their personal or official capacities. Hafer certainly trumps the state defendants’ misconstruction of Will.
Page 13 – Plaintiff fails to state how each defendant personally caused a deprivation of his rights. This is absurd on its face, but nevertheless Railsback will identify specific acts and individuals associated with those acts that constitute a deprivation of his civil rights. In any event the state of Washington has waived immunity to civil rights actions and permits a person to sue the state in the same manner as a person, so all Railsback has to prove is that his civil rights were violated by the state; an easy task given the facts of this case.
Page 14 – Qualified immunity bars plaintiff’s Section 1983 claims – Huh? All states counsel accomplishes in this section is to finally cite a case and principle that is actually correct and it only took 14 pages to get one right. The issue case is whether the conduct of the state defendants violated clearly established statutory or constitutional rights that a reasonable person would have known. A defendant who is entitled to qualified immunity is not immune from liability where constitutional rights are clearly established. The defendants’ counsel ‘s comments in this section are pointless and simply state the obvious. It does not address he facts of the case.
Page 14 – Plaintiff fails to state a claim under 42 U.S.C. 1985 – Railsback certainly has sufficiently alleged that he has a claim under Section 1985(2) and (3). There is no requirement mentioned in the statute that requires a plaintiff to allege a class-based. In essence 1985 covers conspiracies to violate the corresponding sections of 1983. Plaintiff seems to simply rely on the clear abuse of discretion by the District Court rather than citing the statute or appropriate cases. The 1985 issues were addressed in Railsback’s motion to reinstate defendant Meyer.
Page 14 - Plaintiff Failed to state a Claim Under 42 U.S.C. 1986, 1987, 1988. Railsback certainly has sufficiently alleged a cause of action under 1986. This statute has a very direct application to a large number of defendants, including Gov. Locke, AG Gregoire, Sheriff Lucas and his subordinates, Clark County Prosecutor Curtis and his subordinates, some judges, Skamania County Prosecutor Andersen, and the three Clark County commissioners. As to this claim, counsel for state defendants relies on nothing more than the abuse of discretion of the trial court judge.
Page 15 – RICO Claims – These issues were briefed in the Issue #3 portion of this brief.
Page 16 – Service on Blonien and Crooks – Rather than getting into a big argument on this matter, Railsback will simply have them re-served in the very near future.
Motion to dismiss Clark County employee defendants
All arguments made Clark County defendants mirror those of the state employee defendants and Railsback’s response to them would be identical to those that addressed the state defendants excuses.
All defendants claim to have had no duty to investigate the allegations that were contained in Railsback’s sworn declaration of March 2 , 2000; Railsback’s tort claim against Clark County related to the refusal of the Sheriff’s office filed with the County on March 20, 2000; nor to investigate or provide a meritorious defense to Railsback’s lawsuit against Clark County initiated on June 9, 2000.
In the State related defendants’ Memorandum in Support of Dismissal of Complaint (CP 68, pg. 10) counsel admits that defendants Locke and Gregoire took no action to investigate crimes alleged by Railsback against a number of the other defendants in this case.
In May of 2001, Railsback filed a petition in Clark County Superior Court (Case No. 01-2-01947-7 to recall defendant Anders who had been appointed to an elected position as a Clark County District Court Judge and previously was the deputy prosecutor representing Clark County in Railsback’s lawsuit against Clark County initiated almost one year prior to the recall action. Attorney Joseph Quinn represented Anders and Clark County during the hearing on the petition to recall Anders, stated in his ‘Memorandum in Opposition to Recall’ that "Railsback attempted to file a complaint about the Judge (Harris) with the Clark County Sheriff’s Office, but they found his charges so lacking in merit or factual support they declined to file a report or investigate." This is an admission that while Defendant Anders was still a deputy prosecutor, none of the defendants had investigated the factual allegations alleged in Railsback’s report of criminal activity by defendants Harris, Meyer, Christel, and Wolfe. If there was no investigation, how could the County possible conclude there was no merit to the allegations? There was no investigation and there is no report of an investigation because all the defendants know that every one of the allegations is true.
All defendants appear to claim that there never was an investigation conducted related to Railsback’s tort claim and lawsuit against Clark County. This can hardly be the truth, especially since Anders met with Judge Harris on July 18, 2000 to discuss the fact related to Railsback’s lawsuit against Clark County. To the extent that Anders was investigating the case, he has no immunity from a 1983 action.
The hearing on the recall of Anders occurred approximates five months after Railsback initiated his U.S. District Court Case lawsuit. Based on the evidence, it appears that no defendant has investigated the allegations, or at least there is no report of any investigation.
On or about July 22, 2002, Railsback submitted public records requests to a number of Clark County agencies which, in part, requested copies of all reports and investigations related to Railsback’s various complaints and court cases, including investigative reports related to Railsback’s U.S. District Court complaint. Their response was no surprise. There is no report regarding Railsback’s tort claim against the County, no report related to any investigation related to Railsback’s lawsuit against Clark County, and no report related to Railsback’s declaration related to criminal conduct by Judge Harris and others related to Clark County Superior Court Case No. 99-2-00334-2 – Hackett v. Railsback.
Once again, there is only one reasonable conclusion. All of Railsback’s allegations of fact are true. If they weren’t, why would no defendant bother to investigate the allegations. The reason is, they didn’t have to because they all know the allegations are true. The attorneys for the defendants can hardly claim ignorance since they each represent a large number of defendants. Their collective feigned ignorance of the facts and their failure to inform the court of what they know to be true is fraud upon the U.S. District Court, and also the courts of the State of Washington.
All the immunity arguments, for both the individual defendants and the various government agencies have no merit whatsoever. One only need to look at State v. Savage:
Clearly, the legislature has waived all immunity for acts of employees of the state. The legislature has merely stated that the state is liable for the tortious acts of its employees. Based on Savage, even if individual employees were immune from liability, the state is not. Furthermore, the state cannot grant immunity to its employees that is not available in 1983/1985 actions in federal or state court.
We have emphasized time and again that "[t]he touchstone of due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g. , Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (the procedural due process guarantee protects against "arbitrary takings"), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g. , Daniels v. Williams , 474 U.S., at 331 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised). While due process protection in the substantive sense limits what the government may do in both its legislative, see, e.g. , Griswold v. Connecticut, 381 U.S. 479 (1965), and its executive capacities, see, e.g. , Rochin v. California, 342 U.S. 165 (1952) , criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.
Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be "arbitrary in the constitutional sense," Collins v. Harker Heights, 503 U.S., at 129 , thereby recognizing the point made in different circumstances by Chief Justice Marshall, " 'that it is a constitution we are expounding,' " Daniels v. Williams , supra , at 332 (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials " 'from abusing [their] power, or employing it as an instrument of oppression.' " 503 U.S., at 126 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S., at 196 (quoting Davidson v. Cannon , 474 U.S., at 348 )).
To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v. California, supra, at 172-173, where we found the forced pumping of a suspect's stomach enough to offend due process as conduct "that shocks the conscience" and violates the "decencies of civilized conduct." In the intervening years we have repeatedly adhered to Rochin 's benchmark. See, e.g. , Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (reiterating that conduct that " 'shocked the conscience' and was so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency" would violate substantive due process); Whitley v. Albers, 475 U.S. 312, 327 (1986) (same); United States v. Salerno, 481 U.S. 739, 746 (1987) ("So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' . . . or interferes with rights 'implicit in the concept of ordered liberty' ") (quoting Rochin v. California , supra , at 172, and Palko v. Connecticut , 302 U.S. 319, 325 -326 (1937)). Most recently, in Collins v. Harker Heights, supra , at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, "poin[t] the way." Johnson v. Glick , 481 F. 2d 1028, 1033 (CA2), cert. denied, 414 U.S. 1033 (1973). 8 It should not be surprising that the constitutional concept of conscience-shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability. Thus, we have made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. In Paul v. Davis, 424 U.S. 693, 701 (1976), for example, we explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, 474 U.S., at 332 , we reaffirmed the point that "[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. See Daniels v. Williams, supra , at 328; see also Davidson v. Cannon, 474 U.S. 344, 348 (1986) (clarifying that Daniels applies to substantive, as well as procedural, due process). It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. See Daniels v. Williams , 474 U.S., at 331 ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property") (emphasis in original). Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but "less than intentional conduct, such as recklessness or 'gross negligence,' " id. , at 334, n. 3, is a matter for closer calls. 9
To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, ibid. , and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239 (1983), that "the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner." Id., at 244 (citing Bell v. Wolfish, 441 U.S. 520, 535 , n. 16, 545 (1979)). Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, see Estelle v. Gamble, 429 U.S. 97, 104 (1976), it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial, see, e.g. , Barrie v. Grand County, Utah , 119 F. 3d 862, 867 (CA10 1997); Weyant v. Okst , 101 F. 3d 845, 856 (CA2 1996). 10 Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking. COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
The conduct of all defendants in this case display deliberate indifference is so egregious that it easily reaches the level of conscious-shocking. Their conduct is so egregious that it even reaches the level of gross negligence, since they each had a duty to investigate the allegations Railsback has made and refused to do so (so they claim). What could possibly be more conscious shocking?
Deliberate indifference was first defined in FARMER v. BRENNAN, ___ U.S. ___ (1994)
With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness. 4 See, e.g., LaMarca v. Turner, 995 F.2d 1526, 1535 (CA11 1993); Manarite v. Springfield, 957 F.2d 953, 957 (CA1); Redman v. County of San Diego, 942 F.2d 1435, 1443 (CA9 1991); McGill v. Duckworth, 944 F.2d, at 347; Miltier v. Beorn, 896 F.2d 848, 851-852 (CA4 1990); Martin v. White, 742 F.2d 469, 474 (CA8 1984); see also Springfield v. Kibbe, 480 U.S. 257, 269 (1987) (O'CONNOR, J., dissenting). It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.
That does not, however, fully answer the pending question about the level of culpability deliberate indifference entails, for the term recklessness [ FARMER v. BRENNAN, ___ U.S. ___ (1994) , 10] is not self-defining. The civil law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.
Based on the facts of this case, all defendants acted with purpose and knowledge to deny Railsback his Fourteenth Amendment right to due process Fourth Amendment right related to unlawful restraint, and Fifth Amendment right to his property. The risk of harm to Railsback was known or so obvious that it should have been known. One must question why none of the defendants claimed to have investigated any of the factual allegations Railsback has asserted over the past three or so years. If Railsback was wrong on the facts, a simple investigation and report would have disclosed that and saved all the defendants a great deal of time and effort. The reality is that all the facts alleged by Railsback are true and all the defendants know it. There are no reports of investigations because if there were, they would have confirmed Railsback’s allegations. What all the defendants have done over the past three years is simply to stonewall and do nothing in the hopes that Railsback would eventually just go away.
Based on the pleadings, and arguments in Railsback’s complaint, motion for summary judgment and all other pleadings, including this brief, Railsback is entitled to summary judgment as to liability on the Section 1983/1985/1986 causes of action and the Circuit court should remand these causes to the District Court solely for a trial on the damages.
Issue #5 - Should Judge Franklin D. Burgess be disqualified from hearing this case?
Based on the pleadings, the facts, and the rulings of Judge Burgess in this case, it is clear that Judge Burgess is hopelessly biased against Railsback and that Judge Burgess has abused every discretion a U.S. District court judge has in an effort to help obstruct justice and deny Railsback his constitutional rights to due process. He has done this in a effort to protect state court judges and other state officials from the consequences of their acts intended to cover-up violations of Railsback’s constitutional rights and to protect them from the consequences of their criminal acts in their violations of the federal RICO statutes. Judge Burgess began his fraud upon the court by dismissing defendant Meyer by proclaiming that Meyer was not a state actor when he knew and it was pointed out to hie that an attorney who conspires with a judge to deny a person his constitutional rights is a state actor. See Dennis v. Sparks, 449 U.S. 24, 29 ("Private parties who corruptly conspire with a judge in connection with such conduct are thus acting under color of state law within the meaning of 1983 as it has been construed in our prior cases"). When Railsback pointed this out in his motion to reconsider, Burgess simply denied the motion by citing a local court rule, which stated that motions for consideration are generally denied. Burgess knew Railsback was correct on the law and intentionally disregarded the law as he knew it to be in his effort to cover-up the crimes of the defendants. From this one intentional blatant abuse of discretion, Judge Burgess and the remaining defendants continued on a course to unlawfully dismiss each and every defendant. When confronted with the law and the facts in Railsback’s motion for reinstatement of all defendants and for summary judgment, Judge Burgess realized that Railsback was entitled to the relief requested, because there was no possible justification to deny the relief demanded, and simply decided that the last remaining hope to protect the defendants from liability for their crimes and violations of Railsback’s constitutional rights was to dismiss the case for lack of jurisdiction.
Quite frankly, Judge Burgess is now just as guilty of the RICO violations (See Salinas) as are all the named defendants. The only other possible conclusion is that Judge Burgess is so hopelessly incompetent and ignorant that he has no business being a U.S. District Court Judge. Railsback fails to see how a U.S. District Court Judge could possibly have simply made the errors he has made in this case unless many, if not all, were made with the intent to deliberately obstruct justice. Either way, Judge Burgess must be removed from this case.
FRAUD UPON THE COURT
There is little doubt that in a desperate attempt to make this case go away, the defendants will attempt to claim that Railsback is too late with his appellate brief. This argument will have no merit because since there was never a decision on the merits and because the parties, and possibly Judge Burgess, committed fraud upon the court, res judicata does not apply. The Circuit Court of Appeals has taken a very aggressive stance when fraud upon the court has been alleged and established. Pumphrey v. KW Thompson Tool Co., 62 F.3d 1128 (9th Cir. 1995) and Levander v. Prober (9th Cir. 1999) are very relevant to this case.
To determine whether there has been fraud on the court, this circuit and others apply Professor Moore's definition: "Fraud upon the court" should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Gumport v. China Int'l Trust and Inv. Corp. (In re Inter- magnetics Am., Inc.), 926 F.2d 912, 916 (9th Cir. 1991) (quoting 7 James Wm. Moore et al., Moore's Federal Practice P 60.33, at 515 (2d ed. 1978)).
Just as a court may use its inherent power to protect its integrity by vacating a judgment obtained by fraud, it also may amend a judgment for the same purpose. When a court vacates a judgment obtained by fraud, it not only rids itself of the defilement caused by the fraud, but also restores balance and fairness between the parties by removing the benefit gained by the party that committed the fraud. Amending a judgment serves these same goals by removing the benefit -- for example, the avoidance of a judgment against itself -- that the party gained by committing fraud on the court. Levander
There can be no serious question but that the defendants in this case, and the attorneys that are representing them have committed fraud upon either the state courts or the U.S. District Court, or both. It is also well established that there is no time limitation period on any judgment that has been obtained through fraud upon the court. There are numerous cases going back to at least Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). Federal Rule of Civil Procedure 60(b) is the appropriate rule in this case.
Since it is quite obvious that the trial judge has had no qualms about ignoring what he knows the law to be, it is the duty of the Circuit Court to either investigate this fraud upon the court, or to simply remand the case to another judge with directions to enter judgment on the state court claim against Clark County, the RICO damages, and judgment as to liability on the Civil Rights causes of action, with damages for the civil rights actions to be determined by a jury.
DATED this ____ of December 2002.
_____________________________
Donald E. Railsback
Plaintiff-appellant
On August 12, 2002, Railsback met with defendant Washington State Supreme Court Chief Justice Gerry Alexander. Railsback suspects Justice Alexander agree to meet with Railsback because he likely learned that on August 8, 2002, Skamania County Undersheriff David L. Cox had forwarded a criminal report to the Vancouver, WA, FBI office for investigation criminal RICO and Civil Rights violations. During Railsback’s meeting with Justice Alexander, Justice Alexander:
1. Admitted that a law enforcement office is required by statute to accept reports of criminal activity from citizens and to issue a case number at that time. He also stated that a law enforcement officer has a duty to investigate allegations of criminal conduct, especially when the alleged criminal conduct is by public officials.
2. Admitted that Railsback had properly serve a summons and complaint against Clark County in Skamania County Case No. 00-00090 – Railsback v. Clark County, and that it was for a sum certain.
3. Admitted that Railsback did file a petition for a writ of mandamus in a timely manner regarding Railsback’s entitlement to a default judgment as a matter of law in his lawsuit against Clark County.
4. Admitted that the constitution of the state of Washington states that petitions for writs of mandamus against state officers have original jurisdiction in the state supreme court, and that the Washington statutes governing writs of mandamus require that a hearing and oral arguments be conducted.
5. Admitted that Railsback had yet to have his petition for a writ of mandamus scheduled for a hearing almost two years after it had been filed.
6. When challenged, that there is no constitutional basis for the position of appellate court commissioners in the appellate courts of the State of Washington. Alexander also admitted that there wasn’t even a statutory basis for the position of appellate court commissioners.
7. Admitted that the Washington constitution and statutes required the Washington Supreme Court to publish all decisions; and that there has never been a decision related to Railsback’s petition for a writ of mandamus published.
8. Admitted that all decisions and opinions in cases that come before the Washington Supreme Court require the signatures of at least five justices before a decision can be issued. Alexander agreed that there is no such decision or opinion related to Railsback’s petition for a writ of mandamus.
9. Admitted that it is a common practice for the Supreme Court to not publish all decisions as required by the Washington Constitution and statutes.
10. Admitted that the Washington Supreme Court allows ‘court commissioners’ to rule on the merits of cases even though there is no authority for appellate court commissioners and therefore they have no jurisdiction to hear any case and any alleged ruling they make is void ab initio and therefore has no legal effect.
11. Admitted that he wrote the Court of Appeals – Division II opinion in Prest v. Bankers Life, 79 Wn. App. 93, 900P2d 595, which stated that the plaintiff was entitled to default judgment if the defendant could not establish both excusable neglect and a meritorious defense. Failure of either entitled the defendant to judgment as a matter of law. Alexander further admitted that in Railsback’s suit against Clark County that there was no way the county could establish excusable neglect. Railsback then informed Alexander that he had declarations sign under the penalty of perjury of Clark County Sheriff Gary Lucas, and then Clark County District Court Scott Anders (Anders was a deputy prosecutor representing Clark County when this lawsuit was filed) in which they stated that they had never investigated any of the allegations in Railsback’s lawsuit against Clark County. When asked how Clark County, if there had never been an investigation of the facts conducted, could possibly establish a meritorious defense, Alexander had no answer.
12. Despite all the above admissions and facts presented to Alexander by Railsback, Alexander stated that he would not do anything about it. Railsback then informed Alexander that he had an obligation under 18 U.S.C. Section 4 – Misprison of Felony, to report the crimes for which he could no longer deny having information.
13. When presented with a copy of Clark County Sheriff’s Report No: 00014966, dated 12/5/2000 concerning the commission of the crime of perjury committed by Cowlitz County Superior Court Judge Stephen M. Warning during a hearing on Railsback’s petition to recall Clark County Sheriff Garry Lucas, and further being informed that the Clark County Prosecutor’s office listed the suspect as having the first name of ‘NONE’, and the last name of ‘NONE’, even though it would be impossible for the suspect to be anyone other than Judge Stephen M. Warning; Alexander stated that he would not do anything about it.
14. When Railsback demanded that Alexander refer Warning to the Attorney General’s office for prosecution because the Clark County Prosecutor refused to do so, Alexander said "It would be inappropriate for me to involve myself in the affairs of the Attorney General." When Railsback demanded that Alexander refer the matter to the state Commission on Judicial Conduct and that under the Code of Judicial conduct, Alexander had a duty to make a report to the commission, Alexander said he would not do so.
I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Dated this 2nd day of September 2003 in Vancouver WA,
______________________________
Donald E. Railsback