AGO1

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Zackery D. Shaw #8999
Assistant Attorney General
Mark L. Shurtleff #4666
Attorney General
Attorneys for Respondents
160 East 300 South, Fifth Floor
P O Box 140874
Salt Lake City, Utah 84114-874
Telephone (801) 366-0375
______________________________________________________________________________

IN THE SUPREME COURT OF UTAH
______________________________________________________________________________

STATE OF UTAH Ex, Rel., Thomas B. Ginter, Jr.,
Petitioner,

vs.

WEST VALLEY CITY, et al.
Respondents.


RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF PROHIBITION

Case No. 20050475-SC ____________________________________________________________________________

State of Utah Respondents, Jon M. Huntsman, Jr., Governor of the State of Utah; Gary R. Herbert, Lieutenant Governor of the State of Utah; Auston G. Johnson, Auditor of the State of Utah; Edward T. Alter, Treasurer of the State of Utah; Mark A. Shurtleff, Attorney General of the State of Utah; the Utah State Tax Commission; Pam Hendrickson, R. Bruce Johnson, Palmer DePaulis, and Mark B. Johnson, Commissioners of the Utah State Tax Commission; D’Arcy Dixon Pignanelli, Director of Administrative Services for the State of Utah; and Patricia Smith-Mansfield, Director of Division of Archives for the State of Utah, by and through their undersigned representative, submit the following Response to Petitioner’s Writ of Prohibition.

MEMORANDUM IN SUPPORT OF RESPONSE
1. PETITION SOULD BE DISMISSED BECAUSE IT
DOES NOT SATISFY THE PROCEDURAL EQUIREMENTS
OF A PETITION FOR EXTRAORDINARY RELIEF

According to Rule 65B (a) of the Utah Rules of Civil Procedure, “[w]here no other plain, speedy and adequate remedy is available, a person may petition this court for extraordinary relief.” However, “[o]n review of the petition, if it is apparent to the court that the legality of the restraint has already been adjudicated in a prior proceeding, or if for any other reason any claim in the petition shall appear frivolous on its face, the court shall forthwith issue an order dismissing the claim.” (Emphasis added). Petitioner has not clearly stated the relief that he is seeking and he has not made a valid argument as to why hid petition should be granted. Therefore, Petitioner’s Petition for Writ of Prohibition appears frivolous on its face and the Supreme Court should issue an order dismissing Petitioner’s claim.

In addition to Utah Rules of Civil Pro. 65B, Utah Rules of Appellate Pro. 19 outlines the procedures to be taken for petitions of extraordinary writs. A petition for extraordinary relief shall contain: [a] statement of the issues presented and the relief sought;, [a] statement of the facts necessary to an understanding of the issues presented by the petition; [and a] statement of the reasons why no other plain, speedy, or adequate remedy exist.” Utah Rules of Appellate Pro. 19(b). Petitioner’s writ should be dismissed because Petitioner has not included a clear statement of the facts, the issues presented, and the relief sought in order to place the Respondents on notice. In addition, from Petitioner’s unclear statement of facts, it is difficult to know what relief is sought and how each of the defendants represented by the undersigned are implicated in the relief sought. Also, Petitioner has not included a statement of the reasons why no other plain, speedy, or adequate remedy exist. Utah Rules of Appellate Procedure 19B (5) also requires that the petition include “[a] statement explaining why it is impractical or inappropriate to file the petition for a writ in the district court.” Petitioner has not included a statement explaining why it is impractical or inappropriate to file the petition for a writ in the district court. Petitioner has not included any procedural history of this case or dispute to put any of the defendants represented by the undersigned on notice as to how they are implicated in this case. Thus, Petitioner’s Writ of Prohibition should be dismissed because it does not satisfy the procedural requirements for writs of extraordinary relief.

II PETITIONER’S LEGAL ARGUMENTS ARE WITHOUT MERIT

Although the Petitioner does not state the relief he is requesting, or the relevant facts or issues relating to his petition, he does make a number of frivolous arguments that the named defendants do not have authority to take any action against the Petitioner. First, Petitioner argues that “[n]o state has power to demand any thing but gold and silver coin as a payment of any debt or money obligation.” Petitioner’s Writ of Prohibition, at 4. Petitioner further contends that “If the relater in this petition is not required to pay gold and silver coin as a payment for a license plate then he is not required to obtain a license plate….. If these people who claim to be public officials are attempting to lay and collect taxes in any thing but gold and silver coins, they are not acting with the power of the State or any political subdivision thereof….” Id. Courts have uniformly rejected that argument. For example, in United States v. Rickman, the court affirmed the conviction for willfully failing to file a return and rejected the taxpayer’s argument the “the Federal Reserve Notes in which he was paid were not lawful money within the meaning of Art. 1, § 8, United States Constitution.” 638 F.2d 182, 184 (10th Cir. 1980); see also United States v. Rifen, 577 F.2d 1111, 1112 (8th Cir. 1978) Congress has declared “Federal Reserve Notes legal tender, 31 U.S.C. §. 392, and federal reserve notes are taxable dollars.”), United States v. Cando, 741 F.2d 238, 239 (9th Cir. 1984) (rejecting as frivolous the argument that “Federal Reserve notes are not valid currency”), United States v. Daly, 481 F.2d 28, 30 ( 8th Cir. 1973).

(Defendant’s “apparent thesis is that only “Legal Tender Dollars” are those which contain a mixture of gold and silver and that only those dollars may be constitutionally taxed. This contention is clearly frivolous”). Thus, Petitioner’s argument is contrary to well established case law and should be rejected.

Second, Petitioner contends that none of the named defendants have any authority to act because they have not filed their respective oaths of office. This argument has been considered and soundly rejected by this court. In State of Utah v. Sawyer, 819 P.2d 806 ( Utah 1981), the Court rejected the appellant’s argument that the county attorney did not have authority to prosecute him, and consequently that the district court did not have jurisdiction over his criminal case, because the prosecuting county attorney had not complied with the statutory requirements qualifying him to hold office. The Court held that under the de facto doctrine, the acts of one who assumes official authority and exercises duties under color of a valid appointment or election are valid where the community acquiesces to his authority. Id. at 808 (citing State of Utah v. Gambrell, 814 P.2d 1156, (Ut. Ct. App. 1991). Under this holding, all of the individual defendants named in the petition, who have each been either validly elected or appointed, have authority to act within the scope of their duties pursuant to the de facto doctrine. Accordingly, Petitioner’s argument is without merit and should be rejected.

CONCLUSION

For all of the preceding reasons, this Court should dismiss Petitioner’s Writ of Prohibition against those defendants represented by the undersigned.

Respectfully submitted this 2nd day of June, 2005.

(Facsimile) Zackery D. Shaw

Zackery D. Shaw

Assistant Attorney General