Memorandum of Law in Support of Petition for Writ of Mandamus by lakejames

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									        IN THE SUPREME COURT OF THE STATE OF OREGON


CRYSTAL SALVADOR,
         Petitioner-Adverse Party,   SC No.
               v.                    Relating to Columbia County Circuit
                                     Court No. 11-3425
NARCISO GARZA VEJAR,
          Respondent,                MEMORANDUM OF LAW IN
                                     SUPPORT OF RELATOR’S
                      and            PETITION FOR PEREMPTORY OR
                                     AN ALTERNATIVE WRIT OF
JAVIER ALVAREZ,                      MANDAMUS
           Non-Party Relator.        MANDAMUS PROCEEDING




Lake James H. Perriguey, OSB No.983213
Law Works LLC
618 NW Glisan #203, Suite 203
Portland, OR 97209
(503) 334-2340
lake@law-works.com
Attorneys for Relators

Crystal Linscott
33691 SE Santosh Road
Scappoose, OR 97056
(503) 396-9049

Narciso Garza Vejar
Domicilio Conocido
Petatlan Guerrero
MEXICO 40830



                                                                 August 2012
                                                                                                               i




                                  TABLE OF CONTENTS
                                                                                                         Page
TABLE OF AUTHORITIES............................................................................iv

        A.      Question Presented........................................................................ 1
        B.      Proposed Rule of Law................................................................... 1
        C.      Summary of Argument ................................................................. 1
        D.      Statement of Facts......................................................................... 2
        E.      Argument ..................................................................................... .5
        F.      Conclusion .................................................................................... 9
                                                                                                             ii




                                TABLE OF AUTHORITIES


                                                                                                   Page
Cases

Bunch v. High Springs Bank, 76 Fla. 546, 80 So. 319, 321 (1918)................ 8

Forte v. Page, 172 Or 645 (1943) ................................................................ 21

Port of Morrow v. Aylett, 186 Or App 70, 76 (2003), ................................ 6,7

Soldal v. Cook County, 506 U.S. 56 (1992) .................................................. 9

State ex rel. Keisling v. Norblad, 317 Or 615, (1993); .................................. 5

State v. Petersen, 347 Or 199 (2009). ............................................................ 9

US National Bank v. Chavez 281 Or. 329 (1978)....................................... 6,8

Constitutional Provisions

US Const, Amend IV...................................................................................... 5

Other Authorities

Amar, Akhil Reed, "The Fourth Amendment, Boston, and the Writs
  of Assistance" (1996). Faculty Scholarship Series. Paper 1000.
  http://digitalcommons.law.yale.edu/fss_papers/1000 ............................... 9

Black’s Law Dictionary (9th ed. 2009). ........................................................ 5
                                                                                  1



    A.     Question Presented

      Does a trial court have authority to Order a Writ of Assistance without

notice to seize property owned by and in the possession of a non-party to the

underlying litigation, without notice and an opportunity for a hearing, because

of the judge’s sympathy for a former litigant when doing so does nothing to

enforce the underlying judgment.

      B.     Proposed Rule of Law

      A trial judge may not order a Writ of Assistance when doing so does

nothing to enforce the underlying judgment and violates a non-party’s rights

under the 4th Amendment to the US Constitution.

      C.     Summary of Argument

      A trial court has no “inherent power” to order Writs of Assistance for

purposes other than to enforce an underlying judgment. An Order for a Writ of

Assistance that reaches outside of an underlying judgment and orders the

State’s police power to dispossess a non-party in another jurisdiction without

notice or due process is a violation of the 4th Amendment to the United State

Constitution.

      Judge Grove erred in ordering a Writ of Assistance which was not

intended to, nor effective to, enforce an underlying judgment merely because he

feels sympathy for a woman who had appeared in his court six months ago in an

unrelated divorce.
                                                                                  2




      D.     Statement of Facts

      In October 2007, Non-Party Relator Alvarez cosigned on a bank loan for

a Chevy Impala at the request of Petitioner-Adverse Party Crystal Linscott fka

Salvador with the agreement that if Linscott failed to make the car payments to

the bank, Alvarez would take possession of the Impala and continue payments

so as to ensure that his credit was not adversely affected by Linscott’s

impecuniousness. App-2.

      Within a few months, Linscott was late on the payments and Alvarez

took possession of the Impala and continued making the payments. He retained

possession of the Impala for several years. Last month Linscott decided to

retake possession of the Impala. Id.

      Over several years, Alvarez has made approximately 45 payments on the

car loan. Linscott has made approximately 10. Id.

      Alvarez and Linscott are both registered owners of the vehicle. App-2-3.

      Linscott’s former husband was never a registered owner of the Impala,

though he had a marital interest by virtue of his former marriage to Linscott.

      Six months ago, on February 14, 2012, Liscott obtained a default divorce

judgment in Columbia County Court, signed by Circuit Court Judge Ted Grove,

awarding Linscott all of her husband’s marital interest in the Impala. ER – 3-5.
                                                                                     3



      Relator Alvarez was never party to Linscott’s divorce case nor was he

identified in the default judgment. App-6.

      Alvarez has never lived in Columbia County or been made subject to its

jurisdiction.

      A case is pending in Multnomah County Circuit Court, No. 1205-06737,

for the partition and/or sale of the Impala. A trial date is set for January 2012.

Judge Nan Waller declined to issue an order to show cause on a preliminary

injunction as to the immediate possession of the vehicle pending trial. ER-13-

14.

      On August 14, 2012, Linscott filed a pre-printed affidvit in her divorce

case requesting an Order for Writ of Assistance to help her get the Impala

because she is a mother of four with a sick relative. ER - 2.

      On August 14, 2012, Judge Grove phoned Francisca Alvarez, Relator

Alvarez’ wife and told her that she must “bring the Impala to the courthouse.”

App-1.

      Francisca informed the judge that her husband was an owner of the

vehicle, that her husband was not part of the divorce proceeding, that there was

a proceeding in Multnomah County to determine the relative interests of the

Impala and that her husband had a lawyer. Id.

      Judge Grove told Francisca to tell Alvarez’ counsel to call him. Id.
                                                                                   4



      On August 14, 2012, Lake Perriguey, counsel for Alvarez, phoned Judge

Grove and explained that Judge Grove had no authority to issue an Order for

Writ of Assistance because it would not be enforcing the underlying divorce

judgment, that Alvarez is not Linscott’s husband and was never a party to the

underlying judgment and that Alvarez was a registered co-owner of the Impala.

App-4.

      Judge Grove said that he did not like the fact that Relator Alvarez’ legal

repossession of the Impala left a mother and four children without a car. Id.

      Aside from articulating his negative feelings about Mr. Alvarez’ legal

repossession of a vehicle in which he is an owner, Judge Grove refused to offer

any legal authority or other rationale on which he could legally Order a Writ of

Assistance if not to enforce a judgment. Id.

      Judge Grove said that he was going to issue the Writ and if Attorney

Perriguey didn’t like it he could take it up with another court. Judge Grove

invited Lake Perriguey to fax a copy of the ownership registration. Id.

      On August 14, 2012, Lake Perriguey submitted to Judge Grove a request

for reconsideration with a copy of the DMV Impala registration, documenting

the conversation and another letter Requesting a Stay, which was filed with the

court. ER – 4-5.

      Thereafter, on August 14, 2012, Judge Grove signed an Order for Writ of

Assistance, crossing out the word “Respondent” writing in “Javier Alvarez” and
                                                                                    5



directing the adjacent Multnomah County Sheriff to assist in the seizure of the

Impala. ER-1.

      Thereafter a request for stay was filed with Judge Grove. ER- 10-12.

      Thus far the Request for Stay has been ignored.

      This petition followed.

E.    ARGUMENT

       The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized. U.S. Constitution, IV Amendment.

      A petition for a writ of mandamus is the appropriate method to challenge

a trial court’s discretionary or equitable rulings when the trial court’s actions

are outside the permissible range of discretionary choices available to the trial

court. State ex rel. Keisling v. Norblad, 317 Or 615, 623, (1993); Forte v. Page,

172 Or 645, 655–656, 143 P2d 669 (1943). “[A] claim of fundamental legal

error underlying a trial court’s exercise of discretion . . . may be raised on

mandamus.” State ex rel. Keisling, 317 Or at 623.

      A writ of assistance is issued “to enforce a court’s decree transferring real

property, the title of which has been previously adjudicated.” Black’s Law

Dictionary 1748-1749 (9th ed. 2009).
                                                                                    6



      “A writ of assistance is an equitable remedy; the power to order one

stems from the equity court's need to be able to enforce its own decrees. US

National Bank v. Chavez 281 Or. 329 (1978).

       In Port of Morrow v. Aylett, 186 Or App 70, 76 (2003), the court

observed that although a court of equity has broad discretion in crafting relief,

the court may not award relief that represents a substantial departure from the

pleadings and the legal theories relied on by the parties. (emphasis added).

      In the present matter, Hon. Ted Grove, a Circuit Court judge in Columbia

County, has improperly issued a Writ of Assistance to seize a Chevy Impala

that is co-owned by Petitioner, Crystal Salvador and Relator Javier Alvarez.

Judge Grove issued the Order for the Writ, in connection to Petitioner’s

Salvador’s divorce and based upon the affidavit of Petitioner Salvador. ER- 1-

2.

      The judgment below merely awarded Linscott her husband’s marital

rights in the Impala. The Judgment did nothing to affect Relator’s ownership

rights in the Impala.

      “The writ of assistance is a summary proceeding resorted to under the

rules of chancery practice to give effect to the decree, and presupposes that the

rights of the parties are only such as follow upon the decree….” Chavez at 331.

      In the present matter, the rights to possession of the Impala, vis-à-vis

Relator and Linscott, do not in any way “follow upon the decree.” The divorce
                                                                                  7



judgment serves only to cut off the husband’s marital rights to the Impala and

award the husbands rights to Petitioner Crystal Salvador. The judgment does

not affect (nor can a divorce judgment affect) the rights of third parties,

including Relator Avarez or the lending bank, Santander.

      Judge Grove’s Order for Writ of Assistance would follow from the

judgment if the order were to recover the Impala from Linscott’s husband.

      In the preprinted line for Respondent, in which the husband’s name

would properly be written, Judge Grove crossed it out and wrote in Relator’s

name. This is not permissible.

      The underlying judgment did not address Relator’s rights in the Chevy

Impala. ER – 3-4. The underlying judgment did not articulate the rights of the

lending institution who has the title to the Impala, either.

      Similarly, if Relator had not made the 45 payments on the Impala over

the past several years and the bank repossessed the Impala, Judge Grove could

not issue an Order for a Writ of Assistance on Ms. Linscott’s marital judgment

to seize the Impala from the bank’s storage facility.

      After having been provided a copy of the Oregon DMV Registration, and

despite the rule laid out in Port of Morrow v. Aylett that a “court may not award

relief that represents a substantial departure from the pleadings and the legal

theories relied on by the parties” Judge Grove issued an Order for a Writ of
                                                                                     8



Assistance directing a neighboring county sheriff’s force to enter on Relator’s

private property to seize the Impala. ER- 4, ER -1.

      Judge Grove’s Writ of Assistance is a substantial departure from the

pleadings and the judgment itself in that it affects Relator’s possessory rights to

his Chevy Impala.

      A fortiori, the Petitioner’s Affidavit on which it is based relates to the fact

that her mother is ill and that she has four children. Such facts, though certainly

compelling, do not authorize a judge to effect a seizure of personal property

without the due process guarantees afforded by the 4th Amendment to the US

Constitution.

      “The issuance of such a writ is summary because it is merely an order

directing the sheriff to enforce the rights of a party as determined by an already

fully adjudicated decree. Thus, a writ of assistance is proper only "where the

right of the applicant against whom the writ is sought to be issued is clear, and

where the right is doubtful the writ will be refused." Bunch v. High Springs

Bank, 76 Fla. 546, 80 So. 319, 321 (1918). US National Bank v. Chavez, 281

Or. 329 (1978)

      Judge Groves’ Writ of Assistance does not “enforce its own decree” nor

is it proper because the rights of Linscott against whom the writ is sought to be

issued, Relator Alvarez, are not clear, nor have they been fully adjudicated, as

this Court deemed necessary in Chavez.
                                                                                    9



      A judge’s emotional response to a legal realty is an insufficient basis on

which to interfere with the constitutional property rights of a non-litigant over

whom the court has no jurisdiction.

      In Soldal v. Cook County, 506 U.S. 56 (1992), the United States Supreme

Court held that even absent a search or an arrest, a seizure of property

implicates the Fourth Amendment. The Court also held that the Amendment

protects property as well as privacy interests, in both criminal as well as civil

contexts.

      Mandamus has been used to correct court action that infringes on the

relator’s constitutional rights. State v. Petersen, 347 Or 199, 201 (2009).

      Judge Grove’s Order for Writ of Assistance implicates Relator’s property

and his possessory rights to the Chevy Impala. These rights are protected by

the guarantees provided by the 4th Amendment to the US Constitution. Judge

Grove issued the Order for Writ of Assistance during an ex parte proceeding.

He did not provide Relator notice nor an opportunity for a hearing prior to

ordering the Sheriff in another jurisdiction to seize Relator’s property.

      Indeed, it was abuses of this kind in the issuance of Writs of Assistance

that provided the impetus for the development of the 4th Amendment to the

U.S. Constitution. Amar, Akhil Reed, "The Fourth Amendment, Boston, and

the Writs of Assistance" (1996). Faculty Scholarship Series. Paper 1000.

http://digitalcommons.law.yale.edu/fss_papers/1000
                                                                                  10



F.    CONCLUSION

      Non-Party Relator Javier Alvarez requests that the Court issue a

peremptory or alternative writ of mandamus to correct this legal error. Circuit

court judges must be made aware that their power to order sheriff’s officers to

enter onto private land and to seize property pursuant to a Writ of Assistance

are limited to acts that will enforce the underlying judgment.



      August 18, 2012.

                                Respectfully submitted,


                                /s/ Lake James H. Perriguey
                                Lake James H. Perriguey, OSB No. 983213
                                Law Works LLC

                                        Attorneys for Non Party-Relator
                                                                                   11



                      CERTIFICATE OF COMPLIANCE
                          WITH ORAP 5.05(2)(d)


Brief length

      I certify that (1) this brief complies with the word-count limitation in

ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP

5.05(2)(a)) is 2,079 words.



Type size

      I certify that the size of the type in this brief is not smaller than 14 point

for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).



      /s/ Lake James H. Perriguey_________

      Lake James H. Perriguey, OSB No. 983213
                                                                               12



                            CERTIFICATE OF SERVICE

       I hereby certify that on August 18, 2012, I served the foregoing

MEMORANDUM OF LAW IN SUPPORT OF RELATOR’S PETITION

FOR PEREMPTORY OR ALTERNATIVE WRIT OF MANDAMUS by

mailing two copies by first-class mail through the U.S. Postal Service to each of

them at the following addresses:

The Honorable Ted Grove                   Crystal Linscott
230 Strand Street                         33691 SE Santosh Road
St. Helens, OR 97051                      Scappoose, OR 97056
                                          (503) 396-9049
Narciso Garza Vejar
Domicilio Conocido
Petatlan Guerrero
MEXICO 40830




       DATED: August 18, 2012.

                                       /s/ Lake James Perriguey
                                       Lake James H. Perriguey, OSB No.
                                       983213
                                       Of Attorneys for Relator
70302065v.2 0057220-00005

								
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