General Comments Mar 2022

So, a little update on my registry fee challenge in Utah.

This resulted from the State taking my tax return through administrative garnishment in 2013 and 2019. In 2013 I timely requested an administrative hearing prior to garnishment, but the State failed to ever set the hearing. In 2019 the State actually set a hearing and I raised affirmative defenses that the garnishment statute and fee violated due process, and that the fee was an ex post facto law. The administrative law judge dismissed the constitutional affirmative defenses because he did not have jurisdiction to rule on constitutional questions.

Utah law allows you to appeal to the district court where you get a trail de novo (an new trial not based on the record, a complete redo) where the district court judge can rule on constitutional questions. Although a trail de novo, Utah caselaw still sees the matter as a direct appeal (similar to an appeal from justice or small claims court).

So because the ALJ said the State (executive) had no jurisdiction over the constitutional questions, I filed an appeal directly with the district court in 2019, without appealing to the agency (who admitted they did not have jurisdiction on constitutional defenses). Because it is an appeal of an agency decision and challenging statutes, a state attorney is representing the agency.

Right out the gate, the State approached the case as a “suit” against them, even though I was the defendant below, and have tried tirelessly to argue that they are immune to suit under the eleventh amendment and UGIA, that my claims are time-barred, and that my affirmative defenses (declaratory relief) are not allowed under the Administrative Procedures Act.

The judge stated that the State violated the law by not scheduling, but I had waited to long to bring this up so he dismissed the 2013 defenses and he refused to equitably toll any perceived deadline (I disagree and believe caselaw disagrees, but that will have to be settled on appeal).

The judge then stated that because I brought up the issue of a statute-of-limitations defense below, and failed to appeal that decision to the agency, I have forfeited any right to relief on state constitutional questions by not exhausting administrative remedies. My argument was that by using administrative proceedings, the state was reviving otherwise time-barred claims, in violation of due process (See, Mitchell v. Roberts (Utah 2020)). But, the judge saw the statute-of-limitations argument as a statutory question within the executive’s jurisdiction to decide. Because that question could have been appealed to the agency, and could have possibly been decided in my favor, and I didn’t try – I cannot pursue state constitutional defenses on appeal. (I disagree, but again that is a matter for appeal)

The judge did however, leave my federal constitutional challenges intact, as the state’s administrative exhaustion requirement does not apply to federal constitutional questions. I cannot pursue a case in federal court due to Rooker-Feldman, and the Tax Injunction Act.

I was allowed to Amend the Petition for Judicial Review, and the State is still arguing that it is immune even though I am clearly the defendant and they are pursuing their claims against me. It is noted they don’t have a judgment against me, just an statutory lien for non-payment of the registry fee they say I owe (enacted 3 years after my conviction). The Judge also ruled that the State was not immune under the UGIA.

Also during this case, they again tried to take a tax refund, I requested a hearing and they denied it. I filed a Motion for for Leave to File a Supplemental Petition under Rule 65B (Extraordinary Writ). The State then refunded the money to prevent “complicating current litigation.” However, the law is clear that they must schedule the hearing or Release the Lien(s) if no hearing is scheduled. They must relinquish their Lien rights. They didn’t send a signed and binding Release of Lien(s) (“Waiver”) nor schedule the hearing, so I moved forward with the Motion which was granted.

The State has since filed a Motion to Dismiss the Petition for Extraordinary Relief for an Order compelling them to Release the Lien(s) or schedule the statutorily required hearing. If they complete the Release of Lien(s) they can never come after my tax returns again. If they schedule a hearing I can exhaust my administrative remedies and revive my state constitutional defenses. I in turn filed a Motion for Summary Judgment for Extraordinary Relief.

They have also filed for Dismissal of the Amended Petition (“Appeal”) for Judicial Review of the case in chief, arguing that my affirmative defenses are time-barred, that the Court lacks jurisdiction to issue declaratory relief (even though the Statute says I get a trial de novo), and that they are immune from this Appeal under the Eleventh Amendment (even though Cohens v. Virginia made clear immunity does not apply to appeals). Also, they picked up a new reason for dismissal not previously argued, that the case should be dismissed because I (the defendant) failed to join a necessary party. The State debt collection office is separate from the DOC (who administers the registry), and because the DOC was not joined, the appeal must be dismissed. The DOC was not a party in the below administrative action the State initiated against me, in which my tax refund was taken, so no they apparently are not a necessary party.

We have a hearing on all three Motion this coming week. Based on the presidential caselaw I have put in the briefs I would say I will survive the Motions for Dismissal, but you never know.

See their ya go praying is good even the faith of a mustard seed is a good faith and than we grow. Guess after all these years something is sinking in and all these sex sights wanted to debase the facts. Guess one can also debase the database if they don’t have truth.Many times conflicting matters are best handled with truth but were “only human” as billy Joel would say.

Surely, this soon-to-be parolee and his cohorts, who buried 26 little kids alive, will have to spend his life on the public registry, right?

https://www.cnn.com/2022/03/28/us/chowchilla-bus-kidnapper-parole/index.html

Personally, I’m not sure how any of the kidnappers are still breathing.

Another RSO Murdered.. San Diego Jail by his cell mate (assault) and later died after ftr..
https://www.sdsheriff.gov/Home/Components/News/News/1046/514

Hawley introducing bill to ensure strong penalties for child porn possession

So, I played a round of golf today (as that is my relaxing hobby and has been for 20+ years) and was randomly paired up with a retired district attorney who had over 25 years of time as a prosecutor in San Diego. Of course, I didn’t mention my personal experience with the criminal legal system, but it was rather enlightening to hear the prospective of the other side. We didn’t talk about RSOs specifically but must kept to talking about hearing his perspective on people in general that “it is impossible to predict future behavior but the best indicator is past behavior. ” I’d bring up recidivism rates, talking about murderers and such, and I’d hear the reply about horrific facts and circumstances, we should never let people have a second chance, etc. It was interesting to have a 5 hour conversation diving deep into the other side perspective that everything in the legal system is right and just. He was a pro death penalty, pro juvenile lwop, type person.