Good question. Two problems:
First, I pleaded gross negligence at length. The Department of Taxation, now after three years all of a sudden removes the liens. They did that based on no new evidence - during no less than three sets of state and federal court proceedings, I served them with sworn affidavits and trade records showing I had no income. They refused to give me any administrative remedy during federal court proceedings, in fact argued that I was time-barred from filing for any, because in VA there's a time limit of 90 days from a notice of assessment to file. Problem with that is they never served me with any notice back in March 02 as they claimed. I asked them for a copy of the assessment and notice a year ago and they said that all they had were "some notes." Then they turn around in state court and say they offered me an administrative remedy all along - a total and complete brazen lie, I have e-mails and briefs filed in the Courts proving they lied. In fact, they said in the Circuit Court that well if he wants an administrative remedy then since he missed the deadline he has to post $1.7 million bond first, whereat the judge basically bawled them out and said I don't think so, he's going to be able to send you a tax return (BTW NOT required under the VA Code) and if the liens are not removed he can come back here and get a permanent injunction against you by Court order. In Court, when I said I never received any notice so how could I meet the 90-day deadline, the judge said OK OAG where is a copy of the notice? They say, "The Department doesn't record notices." (Yeah RIGHT, if that were true they could seize assets without any proof you were warned, kind of like if OAG would criminally indict someone and not tell them about it, get a default guilty finding, and send you off to jail - and then say so sorry we don't have to provide any proof he knew about the indictment.) Then the judge said well OK you don't keep any records then at least tell me where you sent the notice? Then they say, "We updated his address when he sued." So they conveniently don't keep records of the notice and don't even know where it was sent - and the Court is supposed to take them at their word. The Judge gave me a look pretty much saying OK they're lying but how to prove it? I'm now arguing I don't have to prove anything; the burden is theirs to prove they had lawful authority to go after me assets, and if they can't then that's it, they violated constitutional due process. Of course it's pleaded more comprehensively than that, but you get the idea.
So, only after they finally lose in Court, after 19 months of litigation during which they tried to seize my assets AGAIN - in fact they had a collection agency send me a $1.7 mill payment demand that said, "We accept Discover, VISA and Mastercard (LOL - they have nerve, as if I have a $2 mill credit card after what they did) - now all of a sudden they effectively say "So sorry, you don't owe the taxes after all." I don't think so. Not an any new evidence they completely reverse their positions, and that proves gross negligence right there. And they're worried about this because I just got a letter saying all liens are removed including those sent all over Wall Street (they said they "expired" - what is this, a carton of milk?), and that they "maintain" they sent me a notice in 02. They can maintain all they like, but, as a matter of law, if they can't prove it then there is no notice, end of story.
Now if all of this isn't gross negligence then I don't know what is.
Finally, the Chief Circuit Court judge had these allegations in hand - he said in Court he read my pleadings very carefully, went so far as to admonish OAG, asking if they did (implying their defenses were inappropriate) - and based on them said I don't think so there is no immunity under the Civil Rights Act. That was loud and clear and now OAG go right ahead defying his ruling and re-file an immunity defense when they know very well it's been barred by the Court already.
2/25/05 obviously not a good day for them, but a very good day for me, and in my position those are hard-won., to put it mildly, I don't have the resources OAG does, and I'm solo, no colleagues double-checking my pleadings.
I could file for sanctions against the Tax Commissioner, the Department and OAG, just like I could have in Texas proceedings for Rea's perjury but, if the guilty parties are listening, I don't make the same mistakes twice, learned from what happened in the Eastern District of Virginia when I went for sanctions, learned they're basically the equivalent of a yelling demand for what you want and should be reserved in extreme circumstances only, keep that powder dry always, so I'm not filing for any (notice Berber/Moor and VSA both tried for sanctions/injunctions already and neither got them). What VA is now doing serves to support the main goal here which is, barring settlement adequate to their escalating, outrageous statements and conduct, which has raised the stakes dramatically, a successful trial.
Hope this answers your question. We'll see how they explain ignoring the judge and ignoring their own legal opinion. Incidentally, even ignoring those two, gross negligence is a matter to be determined at trial, not the pleading stage, so for that reason also a plea of sovereign immunity on 42 U.S.C. 1983 claims is premature in law and motion.
Wouldn't you assume they filed the plea of sovereign immunity while at the same time taking the position that there was no gross negligence, intentional wrongdoing, or acts performed outside the employee’s scope of employment?
I'm not suggesting they will prevail, but based on your post it would seem the two positions are mutually inclusive. Has there been a court finding of gross negligence, intentional wrongdoing, or acts performed outside the employee’s scope of employment? |
