Scheidler v. Avery et al, No. 3:2012cv05996 - Document 115 (W.D. Wash. 2015)
Court Description: ORDER denying 68 Motion to Amend. granting 76 Motion to Dismiss Party; granting 77 Motion to Dismiss; granting 79 Motion to Dismiss; granting 100 Motion to Dismiss: All of Scheidlers claims against all defendants are baseles s and they cannot be saved by additional amendment. They are DISMISSED with prejudice and without leave to amend. The BoTAs decision denying Scheidlers property tax exemption applications for 2007-2010 is AFFIRMED. Scheidlers BoTA appeal is DISMISSED with prejudice and without leave to amend by Judge Ronald B. Leighton.(JAB)
Download PDF
<![CDATA[
Scheidler v. Avery et al Doc. 115 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 WILLIAM SCHEIDLER, CASE NO. C12-5996 RBL 9 Plaintiff, ORDER 10 v. [Dkt. #s 68, 76, 77, 79 & 100] 11 JAMES AVERY, et al., 12 Defendants. 13 14 THIS MATTER is before the Court on five Motions: 15 1. Plaintiff Scheidler’s Motion to Amend his Complaint for a third time, by replacing the 16 34 page “RICO statement” appended to his Second Amended Complaint [Dkt. #58-11] with a 17 new, 129 page RICO statement. [Dkt. #68] 18 2. Defendants Washington State Board of Tax Appeals (and its chair, Slonum’s) Motion 19 to Dismiss. [Dkt. #76] 20 3. County Defendants Avery, George, Haberly and Miles’s Motion to Dismiss. [Dkt. 21 #77] 22 4. Defendants Washington State Bar Association (and associates Congalton and 23 Mosner’s) Motion to Dismiss. [Dkt. #79] and 24 ORDER - 1 Dockets.Justia.com 1 5. Clerk of the Court Defendants Carlson and Ponzoha’s Motion to Dismiss. [Dkt. #100] 2 A. Procedural History. 3 Scheidler claims that he is a retired, disabled person eligible for a property tax 1 4 exemption under Chapter 84.36 RCW. That statute permits such relief in some cases, 5 depending in part on the applicant’s “disposable income”—which is his Adjusted Gross Income 6 plus additional amounts listed in RCW 84.36.383(5). Generally, those with disposable incomes 7 greater than $35,000 are not eligible for an exemption: 8 9 10 11 12 A person who otherwise qualifies under this section and has a combined disposable income of thirty-five thousand dollars or less but greater than thirty thousand dollars is exempt from all regular property taxes on the greater of fifty thousand dollars or thirty-five percent of the valuation of his or her residence, but not to exceed seventy thousand dollars of the valuation of his or her residence[.] RCW 84.36.381(b)(i) (emphasis added). Scheidler sued Assessor Avery in Kitsap County Superior Court in 2008, complaining 13 that the Assessor’s calculation of “disposable income” in connection with such exemptions was 14 inconsistent with Washington law. [See Dkt. #1-2 at 5] Defendant attorney Miles represented 15 16 17 18 19 20 21 22 23 1 The early part of this history is taken from Scheidler’s original complaint [Dkt. #1-2] and the exhibits to it. Scheidler’s subsequent filings admit he has been chasing this white whale since at least 1998. See Dkt. #58 at 9, 13, blaming “17 years” of “cascading unfortunate events” on the prior Kitsap County Assessor’s failure to grant the property tax exemption he apparently sought at that time. Scheidler also blames Scott Ellerby, an attorney who represented him in those earlier proceedings. Id. “This case and every event touching this case, has its beginning in the misrepresentations of Scott Ellerby, WSBA # 16277, and the lies he told[.]” [Dkt. # 89 at 11] Scheidler filed a bar complaint against Ellerby, which was dismissed. In 2009, Scheidler sued Ellerby over his 1998 representation, and lost. Scheidler appealed, and Judge Hartman’s dismissal of his claims on summary judgment was affirmed. Scheidler v. Ellerby, 2012 WL 2899730 [Dkt. # 102 at Ex. 1] The players in the Ellerby lawsuit (Judge Hartman, Ellerby, and his attorney, Jeff Downer) all appear in Scheidler’s second amended complaint in this case [Dkt. #58], as well as his proposed amended RICO statement [Dkt. #68]. 24 ORDER - 2 1 Defendant Assessor Avery, and in January 2009, Defendant Judge Haberly dismissed Scheidler’s 2 complaint on Miles’s Motion. Scheidler appealed, and in May, 2010, the Court of Appeals 3 affirmed. It held that there was no justiciable controversy, because Scheidler had not yet actually 4 applied for a property tax exemption. See Scheidler v. Kitsap County Assessor, 2010 WL 5 19727802. 6 In June, 2010, Scheidler filed property tax exemption applications for the 2007, 2008, 7 2009 and 2010 tax years, based on his income in each prior year. [Dkt. #1-2 at 38-45]. He sent 8 the forms under a June 10 cover letter to Assessor Avery, explaining that he was forced to sign 9 the forms “UNDER DURESS.” [Dkt. #1-2 at 47] He continued to claim that Kitsap County’s 10 instructions for filling out the forms were contrary to the law (and an invasion of privacy), 11 because they did not permit him to count some losses in determining his disposable income. 12 Scheidler claimed that his disposable income3 in each relevant year was under the 13 $35,000 limit: 14 15 16 17 18 19 20 2 Scheidler’s complaints all reference, discuss, and rely on his various prior lawsuits and 21 their allegedly fraudulent, criminal and otherwise unlawful resolution. But not all of the referenced orders or opinions are included in his exhibits. The court takes judicial notice of the 22 actual outcomes where they are available. 23 3 William Scheidler alone is the pro se plaintiff, but the tax exemption applications that triggered this litigation were also filed on behalf of his wife, Mary. 24 ORDER - 3 1 [Dkt. 1-2 at 48] Scheidler attached a “Combined Disposable Income Worksheet” for each year. 2 These worksheets showed that in 2006, Scheidler’s “Total Combined Disposable Income Less 3 Allowable Deductions” was $112,457. [Dkt. #1-2 at 39] For 2007, it was $75,190; for 2008, 4 $51,495; and for 2009, $23,539. [See Dkt. #1-2 at 41, 43, and 45] 5 Avery denied Scheidler’s exemption applications for 2007-2009, but agreed that he was 6 at least partially exempt for 2010. In September, 2010, Scheidler appealed all four 7 determinations to the Board of Equalization, by filing form “Taxpayer Petitions to the Kitsap 8 County Board of Equalization for Review of Senior Citizen/Disabled Person Exemption or 9 Deferral Determination” for 2006, 2007, 2008 and 2009. [See Dkt. #1-2 at 33 to 36]. Scheidler 10 claimed that his applications were “fraud” because they misstate the law. [Dkt. #1-2 at 6] 11 Scheidler’s BOE appeal was denied, and he appealed to the Washington State Board of 12 Tax Appeals4. On September 6, 2012, the Chair of the Board (Defendant Slonum) issued an 13 Order Granting the Assessor’s (Defendant Avery’s) Motion for Summary Judgment, dismissing 14 the four appeals. [Dkt. #1-2 at 52-55]. Slonum explained that BoTA did not have jurisdiction 15 over Scheidler’s “various5 Causes of Action,” and that it could address only Scheidler’s appeal 16 of his eligibility for the property tax exemptions. Slonum recognized that Scheidler disagreed 17 with the disposable income calculation, but described his interpretation as “erroneous.” Instead, 18 she held that the Assessor’s computations of Scheidler’s disposable income were correct, and 19 that there were no questions of fact in light of Scheidler’s income tax returns: 20 21 4 24 5 Scheidler’s original complaint “incorporates by reference” the “record on review in BoTA #11-507-510” [Dkt. #1-2 at 6], but only portions of that record are attached to his 22 pleadings. Indeed, most of the Exhibits listed in Dkt. #1-2 are not attached to the complaint on the Court’s electronic (CM/ECF) docket: A-1, A-5, parts of A-6, A-7 to A-27, and A31-A33 are 23 not included. Scheidler sought declaratory relief and a jury trial from the BoTA. [Dkt. #1-2 at 6] ORDER - 4 1 2 3 4 5 6 7 8 [Dkt. #1-2 at 54]. Slonum denied the Assessor’s request for Rule 11 sanctions, because (and 9 only because) she did not have “the power of the superior court” to do so. Id. 10 Meanwhile, Scheidler filed a bar complaint against Miles, “based on his inconsistent 11 legal arguments.” Defendant WSBA dismissed the grievance. [Dkt. #1-2 at 7] 12 After the BoTA decision, Scheidler sought relief from Judge Haberly in the already- 13 affirmed and -closed Scheidler v. Kitsap County Assessor (08-2-02882-0) case. Those efforts 14 were denied, and Judge Haberly forced Scheidler to pay the Assessor’s costs. [Dkt. #1-2 at 7; 15 citing Exhibit A-30 thereto (which is not the cited Order).] Judge Haberly denied Scheidler’s 16 Motion for Reconsideration on September 21, 2012. [Dkt #1-2 at 57] 17 Two weeks later, Scheidler filed a lawsuit in Kitsap County against the four primary 18 characters who had recently advocated or decided against him: James Avery (the Kitsap County 19 Assessor), Alan Miles (Avery’s attorney, a Kitsap County Deputy Prosecutor), Karlynn Haberly 20 (the Kitsap County Superior Court Judge) and Kay Slonum (the Board of Tax Appeals Chair). 21 He broadly claimed that each had violated a long list of criminal statutes, engaged in fraud, and 22 23 24 ORDER - 5 1 generally6 infringed his constitutional rights. [Dkt. #1-2] Before he served his complaint, 2 Scheidler filed an amended complaint [Dkt. # 1-3], though it is clear that he intended the 3 amendment to supplement, rather than replace, the original. [See Dkt. # 1-3 at 2] Scheidler 4 served his amended complaint, and the Defendants timely removed the case here. [Dkt. #s 1-2, 5 1-3]. 6 Scheidler moved for remand (and for disqualification of the attorneys who removed the 7 case on behalf of their clients) [Dkt. #9], and for disqualification of the court [Dkt. #11]. The 8 Defendants moved to dismiss. 9 This Court denied the motions to remand and to recuse. It dismissed all of the claims 10 with prejudice, and without leave to amend, because the claims Scheidler asserted and the “facts” 11 they were based on were not viable or plausible as a matter of law—suing a superior court judge 12 for deciding against you has never been a viable claim in this Circuit (or anywhere else). [See 13 Dkt. #38] 14 Scheidler appealed. The Ninth Circuit affirmed the denial of Scheidler’s motions to 15 remand and recuse, and affirmed the dismissal of all of Scheidler’s previously-asserted claims. 16 But it held that the Court should have given Scheidler an opportunity to amend his complaint in 17 an attempt to assert a viable claim. [Dkt. #51, citing United States v. Corinthian Colleges, 655 18 F.3d 984, 995 (9th Cir. 2011) (“Dismissal without leave to amend is improper unless it is clear, 19 upon de novo review, that the complaint could not be saved by any amendment. . . . Here, we can 20 conceive of additional facts that could, if formally alleged, support the claims that Corinthian 21 made false statements[.]”)] 22 23 6 Slonum counted 28 claims against her in Scheidler’s amended complaint, the majority of them alleging violations of criminal statutes. [Dkt. #8 at 2-3] 24 ORDER - 6 1 The Ninth Circuit provided no guidance as to the facts or claims it conceived Scheidler 2 might plausibly assert against the Judge, the Assessor, his attorney, or the chair of the non-party 3 BoTA. Nevertheless, it remanded the case to give Scheidler an opportunity to try, and to pursue 4 the BoTA appeal he “incorporated by reference” into his initial complaint. 5 In response7, Scheidler filed a second amended8 complaint. It is 60 pages long, with 6 more than 200 pages of exhibits. [Dkt. #58] Scheidler repeats many conclusory allegations and 7 accusations about the original defendants’ conduct, but he also adds seven new defendants and a 8 host of new claims, based on entirely new factual allegations. 9 Scheidler now alleges a massive RICO conspiracy: 10 11 12 13 14 15 16 17 18 7 Since remand, Scheidler has continued his efforts to disqualify this Court (and any other 19 with a connection to the WSBA). Those efforts were consistently denied, but rather than seek an interlocutory appeal, Scheidler filed a “Writ of Mandamus” in the Ninth Circuit, which is 20 apparently still pending. [Dkt. # 114] Such a filing does not deprive this Court of jurisdiction, and the pending Motions are ready for decision. 21 8 The Clerk Defendants point out that Scheidler did not seek or obtain leave of Court to 22 add new parties. [Dkt. #100] Leave to amend in lieu of dismissal under Fed. R. Civ. P. 12(b)(6) permits a plaintiff to cure deficiencies (usually factual) in his existing pleading; it is not an 23 invitation to assert different claims against new parties arising out of wholly unrelated factual allegations. 24 ORDER - 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 [Dkt. #58 at 2] Scheidler also asserts: 15 • Section1983 claims for violations of “due proc ss and conspiracy to interfere with civil e 16 rights” ($10,000,000 per defendant); 17 • Fraud claims (fraud, intrinsic fraud, and fraud upon the Court); 18 • Violations of state law crimin statutes regarding perjury, forgery and trading in public al 19 office; 20 • Violations of “criminal code andthe anti-SLAPP statute (RCW 4.24.525)”; 21 • Violations of criminalcode Chapter 9.73 RCW ($3,000,000); 22 • Violations of the criminal profiteeringstatute (state RICO) (Chapter 9A.82 RCW) 23 ($3,000,000); 24 ORDER - 8 1 • A ($3,000,000) damages claimunder Chapter 7.56 RCW; 2 • Anti-trust violations under 15 U.S.C. §1 (the Sherman Act); 3 • Violations ofthe ADA ($1,000,000); and, 4 • An “Administrative Procedures Act”appeal under Chapter 34.05 RCW (what he 5 describes as the property tax appeal). 6 • Various injunctions, including the creation ofa $1 billion fund to reimburse those, like 7 him, who have allegedly been forced to over-pay property taxes. 8 [Dkt. #58] Each defendant seeks dismissal, and Scheidler seeks to amend his complaint to 9 include a more expansive RICO statement. [Dkt. #68] In his responses to the defendants’ 10 motions, Scheidler seeks yet another opportunity to amend his complaint, to correct what he 11 concedes might be “minor” “procedural” deficiencies. [Dkt. # 89 at 3, 14; #108] 12 B. Fed. R. Civ. P. 12(b)(6) Standard. 13 The adequacy of a pleading in the United States District Courts is governed by the 9 14 Federal Rules of Civil Procedure . Dismissal under Fed R. Civ. P. 12(b)(6) may be based on 15 either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a 16 cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 17 A plaintiff’s complaint must allege facts to state a claim for relief that is plausible on its face. 18 See Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (emphasis added). A claim has “facial 19 20 9 Scheidler argues that state law “pre-empts” the Iqbal/Twombly standard [Dkt. # 89 at 4], 21 based on his reading of a Washington case holding that the federal standard does not apply to state court pleadings in state court cases under the Washington State Rules of Civil Procedure. 22 See McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 102 (2010) (“The Supreme Court’s plausibility standard is predicated on policy determinations specific to the federal trial courts.”) 23 This is a federal trial court, and its jurisdiction is based on Scheidler’s allegations of 24 violations of myriad federal laws. Scheidler’s reading of McCurry is simply wrong. ORDER - 9 1 plausibility” when the party seeking relief “pleads factual content that allows the court to draw 2 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although 3 the Court must accept as true the complaint’s well-pled facts, conclusory allegations of law and 4 unwarranted inferences will not defeat a Rule 12 motion. Vazquez v. L. A. County, 487 F.3d 5 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 6 2001) (emphasis added). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 7 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 8 of a cause of action will not do. Factual allegations must be enough to raise a right to relief 9 above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 10 and footnotes omitted) (emphasis added). This requires a plaintiff to plead more than “an 11 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 129 S. Ct. at 1949 12 (citing Twombly) (emphasis added). 13 On a 12(b)(6) motion, “a district court should grant leave to amend even if no request to 14 amend the pleading was made, unless it determines that the pleading could not possibly be cured 15 by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 16 247 (9th Cir. 1990) (emphasis added). However, where the facts are not in dispute, and the sole 17 issue is whether there is liability as a matter of substantive law, the court may deny leave to 18 amend. Albrecht v. Lund, 845 F.2d 193, 195–96 (9th Cir. 1988). 19 C. Scheidler has not stated (and cannot plausibly state) a claim against the County Defendants. 20 Scheidler’s second amended complaint does not meaningfully change the factual basis 21 for his claims against the County Defendants: Assessor Avery; his attorney, Miles; and Judge 22 Haberly, who dismissed Scheidler’s 2008 case. Instead, it adds attorney Ione George, who 23 represents these parties in this case. Scheidler alleges only that George removed the case, sought 24 ORDER - 10 1 its dismissal, and refused to agree with his remand efforts. [See Dkt. #s 58, 77 at 4] These facts 2 are not disputed. 3 In what can be recognized as a theme in Scheidler’s submissions over time, he repeats his 4 conclusory claims that those disagreeing with him in any context violated various laws, oaths 5 and duties by refusing to agree with him. George opposed him and was predictably named10 in 6 the next iteration of his complaint. This Court’s dismissal of the prior claims (and its denial of 7 Scheidler’s motion to remand) has already been affirmed by the Ninth Circuit. These factual 8 allegations do not support any of Scheidler’s numerous claims against George. 9 Stripped of the conclusory accusations, each of Scheidler’s complaints contains very little 10 in the way of factual allegations related to any County Defendant. Scheidler simply but 11 vehemently disagrees with the way the decision-makers (and their attorneys) read the property 12 tax exemption statute and its calculation of “disposable income” vis a vis capital losses. From 13 this, Scheidler infers and alleges a vast and growing conspiracy to defraud anyone who is not a 14 WSBA member (or, as he alleges in his RICO statements, anyone who is a member but is an 15 “enemy” of the organization). 16 Scheidler fundamentally misapprehends the duties of attorneys generally, and of those 17 opposing him in this and prior cases. He claims that the defendants have “statutory obligations 18 to remedy Scheidler’s pleadings” [Dkt. # 89 at 2 (emphasis in original)], and he repeats that 19 lawyers have a “fiduciary duty” to “take the case of” and “rescue” the “oppressed.” [Id.] Thus, 20 by labeling himself as “oppressed,” he can unilaterally foist upon the defendants a fiduciary duty 21 to protect him from whatever evils he can imagine. Scheidler claims elsewhere that the 22 10 If past is prologue, Scheidler’s Response to the State Court Defendants’ Motion suggests that their attorney will be his next target. [See Dkt. #108 at 2, 12 (claiming that 24 Liabraaten is “in violation of her code” and that “she must be disbarred.”)]. 23 ORDER - 11 1 defendants “must fix” any deficiencies in his complaint, and that the WSBA “delegated to 2 Scheidler” the “TASK of documenting corruption of WSBA lawyers.” [Dkt. #89 at 15 3 (emphasis in original); Dkt. #108 at 5 (emphasis in original)] These assertions do not accurately 4 describe any attorney’s duty. 5 Scheidler also claims that by removing the case, the original defendants and new 6 defendant George engaged in unlawful “forum shopping,” and that filing a Rule 12(b)(6) Motion 7 to Dismiss is “on its face” a “limitation of Scheidler’s civil action,” and “in that regard is back8 door legalization of ‘unauthorized or invalid acts’ of government officials.” [Dkt. #89 at 7] 9 These claims are baseless, and there is no conceivable additional fact that can be pled to make 10 them cognizable or plausible. 11 Scheidler’s §1983 claims, based on alleged violations of the Washington Constitution (or 12 other state laws), are not viable as a matter of law, and cannot be made plausible by the 13 allegation of additional or different facts. See Peters v Vinatieri, 102 Wn. App. 641, 649 (2000), 14 and other authority accurately summarized in Defendants’ Motion to Dismiss [Dkt. # 77 at 5-6]. 15 Similarly, Scheidler’s claims that the County Defendants violated various criminal 16 statutes are not cognizable under §1983 or any other vehicle, because none of those laws provide 17 for a private right of action. See Thompson v. Thompson, 484 U.S. 174, 179 (1988); see also 18 Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir.1964) (only the U.S. Attorney can initiate 19 criminal proceedings in federal court.) 20 Scheidler claims that the County Defendants violated the United States Constitution, but 21 other than naming constitutional provisions, he does not (and cannot) articulate or plead facts 22 that would plausibly support such a claim. He does not address the various immunities that 23 would preclude such claims. Judge Haberly, for example, was and is absolutely judicially 24 ORDER - 12 1 immune from Scheidler’s claims. See Lallas v. Skagit County, 167 Wn.2d 861, 865 (2009). 2 Scheidler’s constitutional claims against these defendants are nothing more than “unadorned, 3 the-defendant-unlawfully-harmed-me-accusations,” and they are not viable as a matter of law. 4 Scheidler’s new RICO and other claims are similarly, fatally defective. Disagreeing with 5 a taxpayer’s analysis of the applicability of a statutory property tax exemption—or representing 6 one who so disagrees—does not violate RICO, the Sherman Act, the ADA or any other federal 7 or state statute giving rise to personal liability11 to the taxpayer. 8 The facts are not in dispute, and there is no potential liability as a matter of substantive 9 law. Scheidler cannot conceivably plead additional facts to make these claims viable or 10 plausible. The County Defendants’ Motion to Dismiss [Dkt. #77] is GRANTED, and all of 11 Scheidler’s claims against them are DISMISSED WITH PREJUDICE and WITHOUT LEAVE 12 TO AMEND. 13 D. Scheidler has not stated (and cannot plausibly state) a claim against the WSBA Defendants. 14 Scheidler’s second amended complaint adds the Washington State Bar Association and 15 two of its agents. He claims the WSBA has a duty to ensure that its attorney members “protect 16 and maintain Scheidler’s individual rights,” and that it is a “RICO enterprise” with the “common 17 purpose of commandeering Washington’s judicial branch,” in order to protect “RICO 18 associations in fact,” so as to “defraud and extort citizens of their money, rights and property.” 19 [Dkt. #58 at 31] 20 Scheidler’s primary factual support of this bold claim is a lengthy re-hashing of attorney 21 disciplinary proceedings to which he was not a party, and which have already been resolved, 22 11 Properly pled and pursued, an appeal of an adverse BoTA decision does not seek damages from the Assessor, his attorney, or the administrative decision-maker; it instead seeks a 24 reversal of the property tax exemption decision. Scheidler’s tax appeal is discussed below. 23 ORDER - 13 1 coupled with conclusory accusations of dishonesty, corruption, criminal conduct, extortion, 2 perjury, ethical violations, and the like. [Dkt. #s 58, 68, 89] His complaint appears to stem 3 primarily from the WSBA’s failure to discipline attorneys against whom he has previously filed 4 grievances, and from his negative experiences with lawyers and courts generally. 5 Scheidler also sued Zachary Mosner (a WSBA “Conflicts Review Officer” volunteer, 6 who allegedly failed to investigate Scheidler’s bar compliant against his prior attorney, Ellerby), 7 and—for the second time—Felice Congalton (a WSBA employee in the Office of Disciplinary 8 Counsel, who dismissed Scheidler’s prior grievances against other attorneys). 9 The WSBA Defendants seek dismissal with prejudice and without leave to amend. [Dkt. 10 #79] They argue that Scheidler has no standing to complain about the results of his grievances 11 and that this court accordingly does not have subject matter jurisdiction over these claims. 12 Scheidler must establish standing: 13 The irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” The party invoking federal jurisdiction bears the burden of establishing these elements. 14 15 16 17 18 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added). He cannot meet this 19 burden. Scheidler’s complaint is not that the Bar did something to him, but that they failed to do 20 something to someone else—the lawyers against whom he filed grievances. Like any other 21 private citizen, Scheidler does not have standing to force a prosecutor to prosecute a third party: 22 23 The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither 24 ORDER - 14 1 prosecuted nor threatened with prosecution…. [A]private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. 2 See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Doyle v Oklahoma Bar Ass’n, 3 998 F.2d 1559, 1567 (10th Cir. 1993) (private plaintiff has standing because he has no right to 4 compel disciplinary proceeding; the only person who stands to suffer direct injury is the lawyer 5 involved). The WSBA cites numerous other cases for this same proposition. [Dkt. #79 at 8-9] 6 Scheidler’s Response [Dkt. # 89] does not address his standing to sue under these 7 authorities. He has not met his burden of establishing standing. 8 The WSBA defendants also argue that they are entitled to absolute quasi-judicial 9 immunity—not just from damages, but from suit. See Mireles v. Waco, 502 U.S. 9 (1991); Hirsh 10 v. Justices of the Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (bar judges and 11 prosecutors have quasi-judicial immunity); and cases discussed in the WSBA’s Motion [Dkt. #79 12 at 10-12.] Indeed, this issue was squarely and recently addressed in the case from which 13 Scheidler’s complaint appears to draw its inspiration12—Scannell v. Washington State Bar 14 Association, Western District of Washington Cause No. C12 - 0693 SJO. [See Order Granting 15 Motion to Dismiss, Dkt. #94 in that case] 16 Scheidler argues that the Defendants’ claimed immunity is “prohibited” under the 17 Washington Constitution. He claims that “any holding by any court granting privileges and 18 immunities to defendants is void under WA common law RCW 4.04.010[.]” [Dkt. # 89 at 6, 19 citing Scheidler’s second amended complaint, Dkt. #58]. 20 21 12 Scannell’s disciplinary proceeding is discussed at length in Scheidler’s RICO 22 statement(s), and Scannell’s subsequent (and since dismissed) RICO lawsuit bears a strong resemblance to Scheidler’s proposed amended RICO statement. [Cf. Dkt. #68 in this case to 23 Dkt. #74 in Scannell’s]. Scannell, unlike Scheidler, was a disciplined attorney and he at least partly sought to vindicate his own alleged injuries. Nevertheless, his claim was dismissed and is 24 on appeal. ORDER - 15 1 This argument is not persuasive. The WSBA defendants are entitled to absolute quasi- 2 judicial immunity as a matter of law. 3 The WSBA Defendants also argue that Scheidler’s claims against them are barred by res 4 judicata, because his prior, similar Kitsap County lawsuit against Congalton was dismissed with 5 prejudice. See Scheidler v Callner, Kitsap Superior Court Cause No. 14-2-00042-3 [Dkt. #79-1 6 (complaint) and #79-2 and -3 (orders dismissing Congalton and Callner, respectively)]. 7 Scheidler did not appeal. 8 The doctrine of res judicata precludes re-litigation of claims that were raised in a prior 9 action, or which could have been raised in a prior action. W. Radio Servs. Co. v. Glickman, 123 10 F.3d 1189, 1192 (9th Cir. 1997) (emphasis added). An action is barred by res judicata when an 11 earlier suit: (1) involved the same claim or cause of action as the later suit; (2) involved the 12 same parties; and (3) reached a final judgment on the merits. Mpoyo v. Litton Electro-Optical 13 Sys., 430 F.3d 985, 987 (9th Cir. 2005). 14 Scheidler argues that the prior case is “VOID for fraud,” and that there is no such thing as 15 res judicata in any event: “Res Judicata can never be claimed as only a “jury verdict” terminates 16 a case.” [Dkt. # 89 at 12 (emphasis in original)] These arguments are unsupportable and 17 frivolous. He already sued Congalton for the very conduct he alleges against her here, and lost. 18 His attempt at a second, bigger bite at the apple is barred as a matter of law. 19 The WSBA’s remaining arguments are similarly persuasive, and are to some extent 20 addressed in the discussion of the other defendants’ motions. Scheidler’s §1983 claim is flawed 21 because the WSBA is not a “person,” and his Sherman Act claim is barred by the state action 22 doctrine. [See Dkt. #s 79 and 92] 23 24 ORDER - 16 1 The flaws in Scheidler’s claims against the WSBA Defendants are substantive, not 2 procedural, and there is no conceivable set of facts that he could plead to make them plausible or 3 viable. The WSBA Defendants’ Motion to Dismiss [Dkt. #79] is GRANTED and Scheidler’s 4 claims against them are DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO 5 AMEND. 6 E. Scheidler has not stated (and cannot plausibly state) a claim against the Court Clerk Defendants. 7 Scheidler’s second amended complaint adds as new parties the Clerk of the Court of 8 Appeals (David Ponzoha) and the Clerk of the Supreme Court (Susan Carlson). His complaint 9 against these parties is long on labels and conclusions, but short on facts. He alleges that each 10 defendant refused to accept his proposed appellate pleadings in prior cases, and that his appeals 11 were dismissed as a result: 12 13 14 15 16 17 18 19 20 21 22 23 24 [Dkt. #58 at 32-33] ORDER - 17 1 Scheidler claims that Carlson rejected his filing because he refused to pay the filing fee: 2 3 4 5 6 7 [Dkt. #108 at 4]. 8 Scheidler claims that Ponzoha rejected his Ellerby13 Brief because he (falsely) claimed it 14 9 did not conform to the Rules of Appellate Procedure. [See Dkt. #108 at 6; Dkt. #58-8 (Brief); 10 Dkt. #102 Ex. 3 (Ponzoha’s letter).] 11 The Court Defendants argue persuasively that Scheidler’s claims are “an unshielded 12 attempt at a de facto appeal of his State Court cases.” [Dkt. #100 at 9] They argue that such an 13 effort is flatly prohibited: 14 15 The Rooker-Feldman doctrine precludes “cases brought by state-court losers complaining of injuries caused by state-court judgments . . . and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 1521, 161 L. Ed. 2d 454 (2005). 16 17 18 19 20 [W]hen a losing plaintiff in state court brings a suit in federal district court asserting as legal wrongs the allegedly erroneous legal rulings of the state court and seeks to vacate or set aside the judgment of that court, the federal suit is a forbidden de facto appeal. Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir.2003); Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2008); see e.g. Giampa v. Duckworth, 586 F. App’x 284 (9th Cir. 2014) (Affirming dismissal of claims 13 The Court of Appeals affirmed the dismissal of Scheidler’s claims against Ellerby in 21 July 2012. It reversed the attorneys’ fee award, and remanded for a revised award. On remand, Scheidler sought additional relief, which was denied, and he appealed again. Scheidler’s claims 22 against Ponzoha relate to this second Ellerby appeal. 14 A review of Scheidler’s proposed brief makes it clear that at least three of the five cited deficiencies existed. Scheidler did not file an amended brief, was sanctioned, and failed to pay 24 the sanction. Scheidler’s second appeal was dismissed. [See Dkt. #102 and Exhibits thereto]. 23 ORDER - 18 1 2 against judges, court clerks, state agencies, and prosecutors; claim against clerks for refusing to accept filings was improper collateral challenge to state court orders under Rooker-Feldman). 3 [Dkt. # 100 at 9-10]. Scheidler argues that he is not seeking to re-litigate anything (and is 4 instead suing these wrong-doers for the first time), and that Rooker-Feldman is no longer the rule 5 after Saudi Basic. As to the latter, he is legally wrong. No authority permits this court to review 6 and reverse state appellate court decisions. 7 And as to the former argument, Scheidler is factually wrong. He does claim that because 8 Ponzoha breached various duties, the prior state court adjudication of his second Ellerby appeal 9 is “void”—he seeks to undo it: 10 11 12 13 14 15 [Dkt. #108 at 12] See also Scheidler’s state court “Motion to Modify,” similarly accusing 16 Ponzoha of corruption, fraud and dishonesty, and seeking the same relief: “vacation” of the prior 17 dismissal as a “fraud on the court.” [Dkt. # 108-1, Ex. 3 at 9-15] 18 Rooker Feldman bars Scheidler’s effort to obtain relief from or to overturn the prior 19 adjudications. There are no conceivable additional or different facts that he could plead to make 20 this claim plausible. 21 Scheidler’s second set of claims—seeking millions in damages against the Court 22 Defendants personally under §1983, RICO, the Sherman Act and other statutes—is also 23 irrevocably flawed. The Clerks are entitled to quasi-judicial immunity from all such claims. 24 ORDER - 19 1 Mireles v. Waco, 502 U.S. 9 (1991); Ashelman v. Pope, 793 F.2d 1072, 1074 (9th Cir. 1986); 2 Giampa, supra, (clerk has quasi-judicial immunity). 3 To the extent Scheidler seeks retrospective relief for the conduct he alleges—money 4 damages and other punishment as redress for past wrongs—the Clerks are also entitled to 5 Eleventh Amendment immunity. See Puerto Rico Aqueduct and Sewer Auth. V. Metcalf & Eddy, 6 Inc., 506 U.S. 139, 146 (1993) (Ex Parte Young exception to Eleventh Amendment immunity is 7 narrow and applies only to purely prospective relief; does not permit judgments against state 8 officers declaring that the violated federal law in the past.) See also Ex Parte Young, 209 U.S. 9 123 (1908), and cases cited and discussed in Defendants’ Motion. [Dkt. #100 at 12-15] 10 Despite his current claims to the contrary, it is clear that the relief Scheidler seeks from 11 these defendants is retrospective. See Dkt. #58 at 54-60. He does seek “injunctive relief,” but 12 the injunction he seeks is not general; he seeks an injunction to prevent recognition (or 13 enforcement) of prior orders adverse to him. [See Dkt. #s 58, 108] Simply labeling the relief he 14 seeks “prospective” does not defeat immunity. 15 Scheidler’s claims against the Court Defendants seek to overturn (or preclude 16 enforcement of) past court decisions adverse to him, or to hold the decision-makers personally 17 liable for ruling against him. Such relief is not available as a matter of law, and there are no 18 conceivable additional facts or claims that he could plead that would change that conclusion. 19 The State Court Defendants’ Motion to Dismiss [Dkt. #100] is GRANTED and all of 20 Scheidler’s claims against them are DISMISSED WITH PREJUDICE and WITHOUT LEAVE 21 TO AMEND. 22 23 24 ORDER - 20 1 F. Scheidler has not stated (and cannot plausibly state) a claim against the BoTA Defendants. 2 Scheidler’s second amended complaint reiterates his claims against Kay Slonum (the 3 Board of Tax Appeals Chair), and it also asserts all of his new claims against her. But he adds 4 no material factual support for his claims. Scheidler also adds the BoTA as a defendant, though 5 it is not clear that he seeks more from it than a reversal of its property tax exemption decision. 6 BoTA does not read Scheidler’s second amended complaint as asserting a RICO claim against it. 7 Other than the fact they are “defendants”—Scheidler broadly accuses “the defendants” of 8 §1983, RICO, Sherman Act, ADA and numerous criminal violations—his second amended 9 complaint [Dkt. #58] and his Response to the Motion [Dkt #89] contain very little in the way of 10 factual allegations against BoTA or Slonum. 11 The BoTA Defendants seek dismissal of all Scheidler’s claims against them. They argue 12 that his allegations of criminal violations have already been dismissed, and repeating or revising 13 them does not change the fact that none of the cited criminal statues give rise to a civil tort claim. 14 This is correct; Scheidler cannot prosecute the alleged crimes as a private person. 15 The BOTA Defendants also argue that the civil claims against them—§1983, RICO, 16 Sherman Act, ADA —have no factual support. This too is correct. Scheidler does not actually 17 allege that BoTA did anything other than have Slonum as its chair. And it alleges only that 18 Slonum decided against him15, that she “supported” Avery and she is a RICO defendant in “an 19 association-in fact with the Bar Defendants and Avery.” [Dkt. #58 at 3] 20 21 15 Scheidler repeatedly claims that Slonum “dismissed his appeal for lack of jurisdiction,” [See, e.g., Dkt. # 1-2 at 7] but that is demonstrably untrue. She considered and denied the appeal 23 on the merits because Scheidler’s reading of the statute and the Assessor’s form was wrong. She did not consider his “other” causes of action because the BoTA lacked of jurisdiction over them. 24 [Dkt. #1-2 at 52-55] 22 ORDER - 21 1 Scheidler has failed to articulate any plausible connection between these defendants and 2 any of his claims for relief. Instead, they claim, Scheidler’s complaint is akin to the one 3 dismissed in McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996): It contains nothing more 4 than “narrative ramblings and political griping.” They accurately cite McHenry for the 5 proposition that “prolix, confusing complaints such as the ones plaintiffs filed in this case impose 6 unfair burdens on litigants and judges.” Id. 7 Scheidler’s Response does not address these arguments, and the Court agrees that the 8 claims are without merit. Scheidler’s efforts to hold Slonum personally liable for her alleged 9 failure to properly handle his BOE appeal to the BoTA were, and are, without merit. And there 10 are no conceivable additional or different facts (or claims) that Scheidler could assert against the 11 BoTA defendants that would change this conclusion. 12 The BoTA Defendants’ Motion to Dismiss [Dkt. # 76] is GRANTED, and Scheidler’s 13 claims against them are DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO 14 AMEND. 15 G. Scheidler’s motion to amend his complaint a fourth (or fifth) time is denied. 16 Scheidler seeks leave to amend his complaint to incorporate an expanded RICO statement 17 [Dkt. #68]. In response to the defendants’ motions to dismiss, he seeks an additional opportunity 18 to amend. [Dkt. #s 89 and 108] He has already filed three complaints and a fourth proposed 19 amended complaint, in this case. [Dkt. #s 1-2, 1-3, 58, and 68] 20 Leave to amend a complaint under Rule 15(a) “shall be freely given when justice so 21 requires.” Carvalho v. Equifax Info. Services, LLC, 629 F.3d 876, 892 (9th Cir. 2010) (citing 22 Forman v. Davis, 371 U.S. 178, 182 (1962)). This policy is “to be applied with extreme 23 liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) 24 (citations omitted). In determining whether to grant leave under Rule 15, courts consider five ORDER - 22 1 factors: “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and 2 whether the plaintiff has previously amended the complaint.” United States v. Corinthian 3 Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (emphasis added). Among these factors, prejudice 4 to the opposing party carries the greatest weight. Eminence Capital, 316 F.3d at 1052. 5 A proposed amendment is futile “if no set of facts can be proved under the amendment to 6 the pleadings that would constitute a valid and sufficient claim or defense.” Gaskill v. Travelers 7 Ins. Co., No. 11-cv-05847-RJB, 2012 WL 1605221, at *2 (W.D. Wash. May 8, 2012) (citing 8 Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1393 (9th Cir.1997)). 9 10 Scheidler’s motions for leave to amend fail under each of these considerations. Scheidler’s proposed amended RICO statement is a 129-page narrative wholly unrelated 11 to the property tax exemption appeal, or to the conduct of any of the original defendants. It 12 appears instead to be a long list of lawyers who faced (or who Scheidler claims should have 13 faced) disciplinary proceedings in this state. These disciplinary proceedings facially have 14 nothing to do with Scheidler, the named defendants, or this case. Indeed, many of the allegations 15 appear to be copied from some other document or pleading, filed on behalf of some other party 16 in some other proceeding. 17 The proposed amendment would not cure the deficiencies discussed above, and it is futile 18 as a matter of law. Scheidler’s attempts to re-litigate completed disciplinary proceedings to 19 which he is not a party face at least the following insurmountable hurdles: Scheidler has no 20 standing to pursue claims against or on behalf of these non-parties. He has no ability as a non21 attorney pro se litigant to represent these entities, and even if he were an attorney, there is no 22 evidence any of these attorneys consented to his representation. Scheidler cannot prosecute 23 alleged criminal violations as a private citizen. Only the U.S. Attorney can initiate criminal 24 ORDER - 23 1 proceedings in federal court. See Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir.1964). Private 2 parties cannot pursue charges for violations of criminal provisions; only prosecutors can. 3 Fritcher v. USDA Forest Serv., No. 1:12-CV-02033-LJO, 2013 WL 593688, at *3 (E.D. Cal. 4 Feb. 14, 2013). 5 Scheidler’s attempts to re-litigate prior adjudications are also barred by res judicata or 6 collateral estoppel. And despite what appears to be a conscious effort to not date the events, it is 7 clear that most of them occurred many years ago, and are time-barred in any event: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 [Dkt. #68 at 6, 16] 22 This court does not have jurisdiction to review state court proceedings under Rooker- 23 Feldman. A district court must give full faith and credit to state court judgments, even if the 24 ORDER - 24 1 state court erred by refusing to consider a party’s federal claims. See Exxon Mobil Corp. v. 2 Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005). 3 Scheidler’s second amended complaint and his proposed third amended complaint do not 4 articulate any claim (no matter how liberally construed) that any defendant could fairly be 5 expected to reasonably answer. It is therefore prejudicial to them. It would be prejudicial to 6 make any party re-litigate the details of every disciplinary proceeding that Scheidler claims 7 should have been resolved differently. None of the defendants can, or should be required to, 8 address Scheidler’s wide-ranging, wild conspiracy allegations on behalf of, or against, non9 parties. 10 Furthermore, the Court cannot conclude that Scheidler is litigating in good faith. A plain- 11 vanilla 1998 property tax dispute has exploded into a RICO conspiracy involving every lawyer 12 and judge in the state. Scheidler does not appear to believe in reasonable disagreements; if 13 someone decides against him, or advocates against him on behalf of her client, she is corrupt and 14 criminal, and promptly sued. He has no reasonable expectation of a billion dollar judgment, but 15 he must realize that responding to hundreds of pages of accusations costs time and money—his 16 lawsuits are, themselves, a form of punishment for those he repeatedly sues. 17 Finally, Scheidler has had ample opportunity to state a viable, plausible claim, and has 18 repeatedly failed to do so. He has filed three complaints so far in this case, and he has filed at 19 least as many cases in other courts against the same parties, for the same conduct, over the years. 20 Scheidler’s proposed amendments do not address the many fatal flaws in his claims, and a fifth 21 opportunity to amend in this case would be prejudicial, and futile. It is not warranted as a matter 22 of law. Scheidler’s Motion to Amend [Dkt. #68] is DENIED, and his general request for leave to 23 amend again (contained in his responses [Dkt. #s 89 and 108]) is DENIED. 24 ORDER - 25 1 H. Scheidler’s property tax appeal is denied, and the BoTA’s determination is affirmed. 2 The remaining, original issue is Scheidler’s appeal of the BoTA’s decision that Avery 3 correctly determined that he is not entitled to a property tax exemption for 2007-2010, based on 4 his “disposable income” for the preceding years. 5 Slonum argued in her first Motion to Dismiss [Dkt. #8]—which was granted [Dkt. #38], 6 and affirmed [Dkt. #51]—that she was not a proper defendant for an appeal of an adverse 7 property tax decision, and that an “APA (Chapter 34.05 RCW) claim” seeking damages from her 8 (or Avery) personally, for real or perceived errors, was not a viable route to the property tax 9 relief Scheidler sought. Instead, as she pointed out, the statutory authority for judicial review of 10 a BoTA decision is RCW 82.03.180. These claims are correct, and Scheidler’s claims on these 11 bases are dismissed with prejudice above. 12 Scheidler second amended complaint repeats these claims, reiterates his claim for relief 13 against the defendants personally under the APA, and does not mention RCW 82.03.180. 14 Instead he argues that “the core” of his claim is that Avery committed fraud (and crimes) by 15 forced him to sign his property tax exemption applications “under duress.” [Dkt. #58 at 27; see 16 also Dkt. #15-12 (same).] This claim is spurious. 17 Avery’s current Motion to Dismiss seeks dismissal of the APA claim, calling it “nothing 18 more than a tort claim or claim for declaratory relief labeled as an ‘administrative appeal.’” 19 [Dkt. #77 at 8] This characterization is not unfair: Scheidler is seemingly incapable of separating 20 his (potentially viable) claim for property tax relief from his (irrevocably flawed) claims that the 21 decision-makers were not just legally wrong, but also dishonest, corrupt, criminals personally 22 liable to him. 23 Nevertheless, Scheidler’s “Ninth Cause of Action: Administrative Appeal Per 34.50” 24 does seek an “award of his rightful property tax reduction.” [Dkt. #58 at 54] The Court will ORDER - 26 1 address the merits of the Scheidler’s effort to overturn the denial of his property tax exemption 2 applications, based on the arguments and documents16 in this case. 3 Retired or disabled Washington taxpayers with disposable incomes less than $35,000 are 4 entitled to a property tax exemption. RCW 84.36.381; see Chapter 84.36 RCW. The statute 5 describes how to determine “disposable income” in detail: 6 7 8 9 10 11 12 13 14 15 16 (5) “Disposable income” means adjusted gross income as defined in the federal internal revenue code[] plus all of the following items to the extent they are not included in or have been deducted from adjusted gross income: (a) Capital gains, other than gain excluded from income under section 121 of the federal internal revenue code to the extent it is reinvested in a new principal residence; (b) Amounts deducted for loss; (c) Amounts deducted for depreciation; (d) Pension and annuity receipts; (e) Military pay and benefits other than attendant-care and medical-aid payments; (f) Veterans benefits, other than: (i) Attendant-care payments; (ii) Medical-aid payments; (iii) Disability compensation, as defined in Title 38, part 3, section 3.4 of the code of federal regulations, as of January 1, 2008; and (iv) Dependency and indemnity compensation, as defined in Title 38, part 3, section 3.5 of the code of federal regulations, as of January 1, 2008; (g) Federal social security act and railroad retirement benefits; (h) Dividend receipts; and (i) Interest received on state and municipal bonds. 17 RCW 84.36.383(5) (emphasis added). 18 A taxpayer’s “disposable income” for purposes of the state property tax exemption is 19 therefore often greater than the “AGI” he calculated for purposes of paying federal income tax. 20 If the taxpayer was able to avoid including capital gains in his AGI, those gains are added to the 21 22 16 These include (but are not limited to) Scheidler’s original complaint, with attachments 23 [Dkt. #1-2]; his Response to Avery’s first Motion to Dismiss, with attachments [Dkt. #15]; his second amended complaint, with attachments [Dkt. #58]; and his Response to Avery’s second 24 Motion to Dismiss [Dkt. #89]. ORDER - 27 1 AGI in calculating his disposable income. Similarly, if the taxpayer was able to reduce his AGI 2 calculation by deducting losses (or depreciation), those amounts are included—they are added 3 back into—the state law disposable income calculation, used to determine his eligibility for a 4 property tax exemption. However, if the AGI already includes the capital gains (or if the losses 5 were not used to reduce the AGI), then they are not added back for purposes of the disposable 6 income calculation. 7 RCW 84.36.383(4) also permits a taxpayer to then subtract from his “disposable income” 8 three specific categories of expenses often incurred by the retired or disabled: 9 (a) Drugs supplied by prescription of a medical practitioner authorized by the laws of this state or another jurisdiction to issue prescriptions; 10 11 12 (b) The treatment or care of either person received in the home or in a nursing home, assisted living facility, or adult family home; and (c) Health care insurance premiums for medicare under Title XVIII of the social security act. 13 RCW 84.36.383(4). 14 In simple terms, a taxpayer’s “disposable income” is: his AGI, plus certain kinds of 15 “income” not already included in the AGI, plus certain deductions which were included in the 16 AGI, minus a limited class of expenses. 17 The genesis for Scheidler’s various lawsuits over the past two decades is his belief that 18 the Kitsap County Assessor’s form for determining disposable income (specifically, its 19 instructions) is contrary to this statute. Scheidler has prepared a side-by-side comparison that he 20 claims demonstrates the error: 21 22 23 24 ORDER - 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 [Dkt. #15 at 9. Scheidler includes an exemplar exemption application packet at Dkt. #15- 22 1] 23 24 ORDER - 29 1 As an initial matter, Scheidler’s claim that the instructions “leave out the conditional 2 analysis” is simply not correct. The very first word of the disputed instructions is “If.” The 3 Kitsap County form correctly instructs that if certain income was excluded from the AGI 4 calculation, or if various deductions were included in it, then those amounts “must be reported on 5 your application for purposes of this exemption program.” [See Dkt. #15-1 at 4, mirroring the 6 list in RCW 84.36.383(5).] 7 Scheidler’s second claim—that this statutory scheme “INCREASES a person’s presumed 8 income”— is absolutely correct. That is the point. Eligibility for the state property tax 9 exemption is not based on the taxpayer’s AGI; it is based on his “disposable income.” The 10 statutory scheme reflects a conscious policy decision to count as “disposable income” some 11 capital gains and other receipts that the IRS does not require the taxpayer to include in his AGI. 12 It similarly disallows deductions for losses or depreciation that the IRS does allow the taxpayer 13 to deduct from his AGI. It specifically does not permit a property tax payer to offset capital 14 gains with other losses. 15 Scheidler’s submissions include an undated and untitled document that he claims is 16 evidence that the Department of Revenue is “involved in the Assessor’s fraud.” [Dkt. # 58-4] 17 The source of this document is unknown, but it appears to be a handout from a state Assessors’ 18 “administrative workshop,” intended to address the question raised by Scheidler here: “why can’t 19 losses offset gains?”: 20 21 22 23 24 ORDER - 30 1 2 3 4 5 6 *** 7 8 9 *** 10 11 12 13 14 15 16 17 18 19 20 21 [Dkt. #58-4] This analysis is not evidence of some fraud or conspiracy; it is additional evidence that Scheidler’s position is wrong. It too is exactly consistent with the statutory scheme, and to the extent it accurately reflects the Department of Revenue’s position, the DOR is correct. Scheidler’s June 2010 letter to Avery suggests that even he realizes that his dispute is not really with the Kitsap County Assessor’s form, but with the 35-year-old state statute that expressly makes the distinctions he complains about. That letter acknowledges that the property tax exemption is based on a measure of “income” that is different than the income upon which the taxpayer must pay federal income tax: 22 23 24 ORDER - 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 [Dkt. #15-2 at 2] The “rationale” for not permitting the taxpayer to use losses to offset gains for purposes of determining his “disposable income”—even though the IRS allows such an offset— is to avoid having other property tax payers subsidize those losses. And it is the legislature’s rationale, not Avery’s. This issue has been correctly determined by prior Kitsap County Assessor, Assessor Avery, the Board of Equalization, and the Washington State Board of Tax Appeals. Kitsap County’s property tax exemption form (like Pierce17 County’s and King County’s) expressly and correctly does not permit a taxpayer to use losses to offset capital gains. That is the law in this state. RCW 84.36.383(5). Scheidler’s appeal of the Board of Tax Appeal’s September 6, 2012 decision [Dkt. #1-2 at 54] is DENIED and that decision is AFFIRMED. 18 19 20 17 Pierce and King County’s property tax exemption application forms are available online, through these links: https://www.co.pierce.wa.us/index.aspx?nid=702 22 http://www.kingcounty.gov/depts/assessor/Forms.aspx Like Kitsap’s, each county’s instructions specifically and consistently do not permit the 23 applicant to offset income with losses in calculating his disposable income. 24 21 ORDER - 32 1 2 CONCLUSION All of Scheidler’s claims against all defendants are baseless and they cannot be saved by 3 additional amendment. They are DISMISSED with prejudice and without leave to amend. The 4 BoTA’s decision denying Scheidler’s property tax exemption applications for 2007-2010 is 5 AFFIRMED. Scheidler’s BoTA appeal is DISMISSED with prejudice and without leave to 6 amend. IT IS SO ORDERED. 7 Dated this 17th day of November A 8 9 Ronald B. Leighton United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER - 33
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
