Ocean View resident Wally Brown dropped a bombshell on town council members at their Wednesday, May 7, meeting, revealing his intention to file a lawsuit against council members over the town’s requirement for all property owners to connect to the town’s new central water system.
Brown had actually filed the suit in U.S. District Court back in March, prior to taking part in a high-profile election that saw Gordon Wood take over as mayor and Planning & Zoning Commissioner Perry Mitchell move onto the council.
Brown himself came in a distant fourth among four candidates for the council seat in the April 12 elections, but he told the Coastal Point in March, just after his initial filing of the suit, that he had already filed it. Brown said at the time that he was concerned that if he lost in the election, the perception would be that he was filing the suit out of “sour grapes.”
With the election behind him, Brown’s attention turned back to his lawsuit against the town, which was recently put before a District Court judge. That judge subsequently threw it out on what Brown this week called his failure “to dot my I’s and cross my T’s.” A key element was his choice to file suit against the town council, rather than its individual members or the mayor — a choice he has since rectified in his filing documents.
The judge’s action on his initial filing left Brown with a decision to make: re-file the suit and wait for it to be served on the town, as before; or, give the town and new mayor Wood a heads up and a chance to resolve the issue with him directly, outside of court.
Brown opted for the latter on May 7, using his time during the traditional “citizens’ privilege” to notice Wood on his plans to re-file the suit if the town cannot respond to his complaint. He told the Coastal Point this week that he had been sensitive to Wood’s new role as mayor.
“He’s only been there a month,” Brown said. “I didn’t want it to be a total surprise.”
In his revised suit, Brown asked the court to subpoena members of the town council — specifically the mayor — to personally answer the complaint, which asserts that: “The elected members of the Ocean View Town Council, acting outside their responsibility, in a conspiratorial manner, and in contravention of the constitution, has violated their oath of office, and the rights of the (Constitutional) citizens of Ocean View…”
The filing alleges that the council members have “committed several illegal acts upon the people of Ocean View,” including:
• denial of guaranteed Constitutional rights,
• confiscation of private property,
• right to contract (or not),
• color of law,
• attempt to sell into involuntary servitude and/or bondage,
• exercise of guaranteed constitutional right being made a crime,
• denial of use of private property,
• deliberately enacting ordinances that are contrary to guaranteed constitutional rights,
• threatening monetary punishment for failure to pay extortion, and
• disregarding their responsibility and the people’s sovereignty as the only proper constituted authority.
Case focuses on historical law, rights assertions
Underlying those charges are Brown’s assertions that the town council does not have the authority to make many of the decisions it has in recent years, including the decision to create a public water system for the town and to require property owners to hook up to the town, at the risk of ever-increasing fines if they do not do so by March 1, 2009.
Brown cites the U.S. Constitution, the Constitution of the State of Delaware and the town’s own charter, as well as numerous amendments to U.S. constitutional law and several court cases, in making his claim that the town council did not have the authority to create the water system and pass the costs on to users who were required to hook up to it.
Pointing to case law as far back as 1796, Brown asserts — as he has often done in letters to the editor sent to local newspapers — that government is responsible to the people and can act by their will alone.
In Hertado v California, 110 U.S. 516, Brown notes, the decision stated that “The state [town, Brown adds parenthetically] cannot diminish the rights of the people. Linked to that assertion is property-rights law and taxation positions under Redfield v Fisher (1930): “The individual, unlike the corporation, cannot be taxed for the mere privilege of existing. The corporation is an artificial entity which owes its existence and charter powers to the state; but the individual rights to live and own property are natural rights for the enjoyment of which a tax cannot be imposed.”
In Jerome H. Sheip Co. v Amos, Brown points out, the decision says, in part, “To acquire and possess property is a right, not a privilege.” “Property includes money,” Brown adds in his filing.
Notably, Brown has previously expressed his opposition to taxes in his letters to the editor, a position he did not emphasize during his run for council but which he has since once again embraced publicly.
Brown has also annually delivered a written “notice of retention of rights” to the town, seeking to cement his objections to many of the town’s claimed rights, such as making the decisions regarding the water system and the fees, fines and penalties associated therewith.
“I just want to be left alone,” Brown emphasized to the Coastal Point this week. “They can’t make me connect to the water system, and it’s illegal for them to think they could make me.”
Brown said part of the point of his suit was an effort to establish that the town government is not operating legally.
“Mostly, I object to the way they run our town. It’s not legal,” he asserted. “We were granted a form of government to which they are not adhering.”
Town stunned by suit, awaiting legal review
Mitchell commented on Brown’s suit in a newsletter sent to town residents after the May 7 meeting.
“The Council sat there in shock at what was transpiring,” Mitchell recounted. “The supposed legal basis to gain federal jurisdiction was federal civil rights laws.
“He is also arguing that the town has illegally taxed him for this purpose,” Mitchell said. “He was forced to withdraw it because of procedural errors and is asking the council for redress. If he is not granted redress he will sue the Town again.
“I believe his claim is frivolous, and it is unfortunate that the council may have to spend money for attorneys for this issue,” Mitchell stated.
Wood, reached by the Coastal Point on May 14, said the town had no official comment on the case as yet, having not yet received back a review by Town Solicitor Dennis Schraeder.
“He faces some procedural issues,” Wood, himself an attorney, noted of Brown’s case. “It’s difficult when you’re being your own lawyer.”
Wood emphasized that he would not be making any comment on the merits of Brown’s case at this time.