Anderton v. Bannock County et al

Filing 33

ORDER denying as moot 11 Andertons Petition to Remove State Cases to U.S. Federal Court; denying as moot 12 Andertons Petition for Injunction; granting 27 Defendant Bannock Countys Motion for Summary Disposition; granting 28 Defendant Bannock Countys Motion for Summary Disposition; denying 29 Defendant Bannock Countys Motion for Sanctions; granting 30 Defendant State of Idahos Motion for Judgment on the Pleadings. All claims against Defendant State of Idaho are DISMISSED WITH PREJUD ICE. The second claim for relief against Bannock County is DISMISSED WITHOUT PREJUCICE. For the reasons explained above, Anderton may file an amended complaint within 21 days of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BARDELL JOSEPH ANDERTON,
Case No. 4:14-cv-00114-BLW
Plaintiff,
v.

ORDER

BANNOCK COUNTY & STATE OF
IDAHO and other unknown or as yet
unnamed parties 1-100,
Defendants.

Pending before the Court are the following motions: (1) Defendant Bannock
County’s Motion for Summary Disposition; (2) Bannock County’s Motion for Rule 11
Sanctions; and (3) Defendant State of Idaho’s Motion for Judgment on the Pleadings.
See Dkts. 27, 29, and 30, respectively. Additionally, Plaintiff Bardell Anderton has filed
a “Petition to Remove State Cases” and a “Petition for Injunction.” See Dkts. 11, 12.
For the reasons expressed below, the Court will dismiss all claims against the State
of Idaho. The claims against Bannock County will also be dismissed, though the Court
will grant Anderton the opportunity to file an amended complaint. The Court will deny
Bannock County’s Motion for Sanctions. It will also deny Anderton’s pending petitions.
MEMORANDUM DECISION & ORDER - 1

BACKGROUND
Pro se plaintiff Bardell Anderton alleges a variety of wrongs, including perjury,
treason, fraud, deceit, extortion, conspiracy, and malfeasance. Am. Compl., Dkt. 4, at 3,
4, 9, 26. 1 Given these wide-ranging allegations, the Court cannot be entirely sure of the
precise nature and scope of the claims plaintiff is attempting to allege. But Anderton’s
chief complaint is defendants’ alleged imposition and collection of “unlawful” property
taxes. Id. at 3, 4, 9, 22, 26, 28. Anderton also alleges that in September 2013, Bannock
County wrongly auctioned off his real property to a third party, Net Prophet LLC. Id. at
10.
Anderton alleges that at some unspecified point (presumably before the September
2013 sale), he asked Bannock County to tell him the balance owed for all “purported
Taxes, Interest and Penalties and etc.” Id. at 9. Anderton then “drew a Promissory
Note . . . and sent it to the Tax Collector of Bannock County” as payment. Id. The
County verbally refused payment, but nevertheless “never returned [Anderton’s] Note or
rejected it in writing!” Id. Anderton’s theory is that he paid his property taxes, which he
believes to be unconstitutional, with a promissory note.
Based on these facts, Anderton appears to be alleging claims for: (1) unlawful
assessment and collection of taxes; (2) unlawful taking of property, based on Bannock
County’s refusal to accept Anderton’s promissory note as payment for property taxes,

1

When citing to the amended complaint, the Court will cite to the page numbers shown on the bottom of the
complaint’s pages, as opposed to the docketing numbers reflected at the top of the page.

MEMORANDUM DECISION & ORDER - 2

and (3) due-process violations. 2
In his prayer for relief, Anderton asks for, among other things:
(1) a “Judgment and Order quashing the QUIT CLAIM DEEDS issued
by the County of Bannock to Net Prophet LLC, declaring their
sale/purchase illegal, null and voice based upon the Constitution of
the United States of America and Bill of Rights”;
(2) a “Judgment upholding the Validity of Allodial Land Title;”
(3) a “Judgment declaring the Actions of the Legislature Null and Void
for passing Unconstitutional Taxing Laws; regarding Real Estate of
Plaintiff . . . .”; and
(4) a “Judgment . . . to determine the UNLAWFUL of taking Money for
Real Property Taxes, Interest, Penalties and Costs since and
including 1955 . . . .”
Id. at 28.
ANALYSIS
Plaintiff has not responded to defendants’ pending motions. As such, the Court
could simply grant the motions and dismiss plaintiff’s complaint with prejudice. See
Idaho Dist. L. R. 7.1(e)(1) (“if an adverse party fails to timely file any response
documents required to be filed under this rule, such failure may be deemed to constitute a
consent to . . . the granting of said motion . . . .”). The Court will, however, address the
substance of plaintiff’s complaint.
ANALYSIS
1.

Sovereign Immunity
The Court will first address the State of Idaho’s global argument that it is immune

2

The amended complaint on file with the Court is missing various pages, and Anderton has not responded
to the Court’s request that he file the missing pages with the Court. See Dec. 30, 2014 Order, Dkt. 32
(requesting that missing pages be filed by Jan. 13, 2015).
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from suit under the Eleventh Amendment. The Eleventh Amendment bars suits in federal
court against a state and its agencies brought by its own citizens and citizens of other
states. U.S. Const. amend. XI; See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). A
state may waive its sovereign immunity, but Idaho has not waived sovereign immunity
for state or federal constitutional violations. See Edelman v. Jordan, 415 U.S. 651, 663
(1974); Hickman v. Idaho State Sch. & Hosp., 339 F. Supp. 463 (D. Idaho 1972).
Anderton’s constitutional claims against the State are thus barred as a matter of law.
2.

Idaho’s Tort Claims Act
The next global argument is Bannock County’s contention that Anderton’s

complaint is barred because he did not comply with the notice requirements of Idaho’s
Tort Claims Act. See Idaho Code § 6-906. The Court is not persuaded. Anderton is not
alleging state-law claims. Rather, he is attempting to allege federal constitutional claims.
Anderton is not required to file a tort claim to move forward on these claims – assuming
they are adequately alleged. See Hallstrom v. City of Garden City, 991 F.2d 1473, 1479
n. 9 (9th Cir. 1993) (affirming federal district court’s dismissal of state-law claims for
failing to file timely notice under the Idaho Tort Claims Act, but allowing the federal
constitutional claims to move forward on the merits); BHA Invs., Inc. v. City of Boise,
108 P.3d 315 (Idaho 2004) (failure to comply with notice requirements of Idaho Tort
Claim Act does not bar . . . [plaintiff’s] claim based upon the Takings Clause in the
Constitution of the United States”). Thus, the key question presented is whether Anderton
has sufficiently alleged that Bannock County violated any of his federal constitutional
rights.
MEMORANDUM DECISION & ORDER - 4

3.

Anderton’s Challenge to the Constitutionality of Property Taxes
As noted above, Anderton’s key complaint is that the County has unlawfully

imposed and collected taxes. The County contends that the Court does not have subjectmatter jurisdiction over such a claim, and thus moves for dismissal under Federal Rule of
Civil Procedure 12(b)(1).
There are two types of Rule 12(b)(1) motions: facial and factual. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). “In a facial
attack, the challenger asserts that the allegations contained in a complaint are insufficient
on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves, would otherwise invoke federal
jurisdiction.” Id.
If the defendant launches a facial attack, the Court accepts as true all factual
allegations in the complaint. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir.
2005). Still, though, to survive a Rule 12(b)(1) motion, plaintiff must allege a plausible
set of facts that establish subject-matter jurisdiction. Terenkian v. Republic of Iraq, 694
F.3d 1122, 1131 (9th Cir. 2012) (Twombly/Iqbal applies to facial attacks on subject
matter jurisdiction).
To resolve a factual attack on jurisdiction, by contrast, the district court may
review evidence beyond the complaint without converting the motion to dismiss into a
motion for summary judgment. Id. at 1039. “Once the moving party has converted the
motion to dismiss into a factual motion by presenting affidavits or other evidence
properly brought before the court, the party opposing the motion must furnish affidavits
MEMORANDUM DECISION & ORDER - 5

or other evidence necessary to satisfy its burden of establishing subject matter
jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.
2003). The district court does not abuse its discretion by looking to materials outside the
pleadings in deciding the issue, even if it becomes necessary to resolve factual disputes.
St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989).
Although the County presents extrinsic evidence to support its motion, plaintiff’s
first claim for relief is facially defective. The overriding theme of this claim is that
plaintiff is not obligated to pay property taxes because he holds “allodial title” to his land.
See Am. Compl., Dkt. 4, at 3; see also id. at 26 (first claim for relief asserts the defendants
have unlawfully “assessed Taxes and Collected monies . . . in violation of the
Constitution . . . .”). The Court has no jurisdiction over such claims. See Jerron West,
Inc. v. California Bd. of Equalization, 129 F.3d 1334, 1338 (9th Cir. 1997).
Federal district courts are courts of limited jurisdiction, and Congress may divest
them of jurisdiction. The Tax Injunction Act is an example of such a divestiture. See 28
U.S.C. § 1341. It provides that “[t]he district courts shall not enjoin, suspend or restrain
the assessment, levy or collection of any tax under State law where a plain, speedy and
efficient remedy may be had in the courts of such State.” Courts have held that the Tax
Injunction Act and principles of comity restrict two types of suits: (1) suits for
declaratory relief holding state tax laws unconstitutional, and (2) suits seeking damages
related to the imposition of unconstitutional taxes. See California v. Grace Brethren
Church, 457 U.S. 393, 408 (1982); Fair Assessment in Real Estate Ass'n, Inc. v. McNary,
454 U.S. 100, 116 (1981). There is an exception when plaintiffs do not challenge the
MEMORANDUM DECISION & ORDER - 6

constitutionality of the taxes, but instead allege that they have no “plain, speedy and
efficient remedy” in state courts. 28 U.S.C. § 1341. Further, many courts have observed
that “allodial title to land is an archaic concept not recognized in modern United States
law for property ownership by individuals.” United States v. Manke, Case No. 04-175-1CR-W-FJG, 2012 WL 1898757, at *6 (W.D. Mo. May 23, 2012).
Based on these authorities, Anderton’s entire complaint is deficient to the extent it
alleges that defendants violated his constitutional rights simply by imposing or collecting
taxes. See Am. Compl., Dkt. 4, at 26, 28. Liberally construed, however, Anderton is also
attempting to allege two claims – a takings violation and a due-process violation – that
are not based on the general assertion that property taxes are unconstitutional. The Court
has jurisdiction over these claims, and will address each in turn below.
4.

Anderton’s Due-Process Claim
Anderton’s due-process claim rests on the allegation that Bannock County sold his

property without first notifying him. See Am. Compl. ¶ 13 (alleging that “Plaintiff had
never heard anything more regarding the Taxes or what they were doing until mid to late
Oct. 2013, two gentlemen came to my business . . . and stated ‘they were ‘Net Prophet
Corporation” and had purchased two (2) of Plaintiff’s properties . . . .”); see generally
U.S. Const. amend. 5 (“No person shall be ... deprived of life, liberty or property, without
due process of law.”). Bannock County, however, submitted affidavits demonstrating
that Anderton was notified of tax sales. See Affidavits of Compliance, Dkt. 27-2. The
County thus asks for “summary disposition” of this claim.

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The Court will treat Bannock County’s Motion for “Summary Disposition” of the
due-process claim as one for summary judgment under Rule 56. See Oct. 20, 2014
Notice, Dkt. 31 (notifying Anderton, as a pro se litigant, that motions to dismiss may be
treated as Rule 56 motions). Rule 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Court will grant summary judgment on Anderton’s due-process claim. As
noted, the County demonstrated that Anderton received notice of tax sales. Anderton has
not come forward with any evidence or argument challenging this evidence. His dueprocess claim thus fails as a matter of law.
5.

Anderton’s Takings Claim
The Court will next address Anderton’s claim that his property was taken without

just compensation. Am. Compl. at 9, Dkt. 4 at 9; see generally U.S. Const. amend. 5
(“nor shall private property be taken for public use without just compensation”). From
what the Court can gather, this claim is directed at parcels of land Net Prophet allegedly
purchased at auction. See id. at 13-15.
This claim, as presently drafted fails for two reasons.
First, to the extent this claim is based upon a theory that Anderton is not lawfully
required to pay property taxes, it fails for the reasons stated above – namely, this Court
does not have jurisdiction over claims challenging the constitutionality of state taxing
laws.
Second, to the extent Anderton is alleging that he paid the taxes for these
MEMORANDUM DECISION & ORDER - 8

properties, but that they were nonetheless taken “without just compensation,” Anderton’s
claim fails. Here, Anderton does not plausibly allege that he paid his property taxes. He
relies on an allegation that he paid property taxes by delivering a promissory note to
Bannock County. See Am. Compl., Dkt. 4, at 9, 26; see also May 30, 2012 Promissory
Note, Dkt. 28-1, at 5. 3 He further alleges that the County verbally told him that it could
not accept the promissory note, but nevertheless “never returned . . . [the] Note or
rejected it in writing!” Id. at 9. Plaintiff’s theory is that because the County still has the
written note in its possession, he has paid his taxes.
Property taxes cannot be paid with promissory notes. Idaho Code § 63-901
provides that “[a]ll property taxes must be paid in lawful money of the United States.”
“Lawful money,” in turn, is defined as “currency and coin of the United States at par
value and checks and drafts . . . payable upon demand or presentment” Idaho Code § 63201. Anderton’s claim that he “paid” his property taxes thus fails. Which means that he
cannot rely on this alleged payment to support a claim that his property was taken
“without just compensation.” See generally Nelson v. City of New York, 352 U.S. 103
(1956). The Court will therefore dismiss Anderton’s second claim, though it will grant
plaintiff the opportunity to amend to the extent he is attempting to pursue a theory that
defendants wrongfully took surplus equity in his property. See generally Am. Compl.,
Dkt. 4, at 1 (alleging that the County Appraiser valued two of his properties at $300,000,
but that a third party Net Prophet, purchased these properties for approximately $12,600);
3

The Court may also examine documents referred to in the complaint, although not attached thereto, without
transforming the motion to dismiss into a motion for summary judgment. See Knievel v. ESPN, 393 F.3d 1068,
1076 (9th Cir. 2005).

MEMORANDUM DECISION & ORDER - 9

see also Coleman v. District of Columbia, ___ F. Supp. 3d ___, 2014 WL 4819092
(D.D.C. Sept. 30, 2014) (former homeowner sufficiently alleged takings violation, given
that the District of Columbia’s tax sale statute provided that any surplus equity in home
was irrevocably lost to a third party at public auction of tax lien).
6.

Bannock County’s Motion for Sanctions
Bannock County seeks sanctions against Anderton under Rule 11 of the Federal

Rules of Civil Procedure.
Rule 11 contains a safe-harbor provision, which requires the party seeking
sanctions to first serve the motion on the opposing party, and then wait 21 days before
filing the motion with the Court in an effort to allow the non-moving party to consider
whether to withdraw the allegedly sanctionable allegations. Fed. R. Civ. P. 11(c)(2).
Because Bannock County did not demonstrate compliance with this safe-harbor
provision, the Court will assume non-compliance. Although the Court may nevertheless
impose sanctions on its own, it chooses not to do so at this time. However, the Court feels
obligated to warn Anderton that if he files future lawsuits against the County that simply
assert the same failed claims made here, the Court will seriously consider imposing Rule
11 sanctions.
7.

Anderton’s Petitions
Lastly, the Court will deny Anderton’s two pending petitions, which relate to his

efforts to effectively stay certain state-court actions. In the first petition, Dkt. 11,
Anderton asks the Court to remove four state-court cases “and join them with . . . [this
federal action] as they contain basically the same subject matter and all involve matters of
MEMORANDUM DECISION & ORDER - 10

Civil rights, the United States Constitutional and Bill of Rights Violations & Questions.”
Dkt. 11, at 1. In the second, related petition, Anderton asks the Court “for an injunction
to stay all matters” in the four state-court cases. Dkt. 12.
These brief one-paragraph petitions do not provide the Court with sufficient
information to address their merits. Further, they are moot based on the Court’s decision
to dismiss Anderton’s complaint. The Court will therefore deny the petitions.
ORDER
It is ORDERED that:
(1) Defendant State of Idaho’s Motion for Judgment on the Pleadings (Dkt. 30) is
GRANTED.
(2) All claims against Defendant State of Idaho are DISMISSED WITH
PREJUDICE.
(3) Defendant Bannock County’s Motion for Summary Disposition (Dkts. 27, 28)
is GRANTED.
(4) All claims against Bannock County are DISMISSED WITH PREJUDICE,
with the exception of Anderton’s second claim for relief, which the Court
construes as seeking to allege a takings violation. The second claim for relief
is DISMISSED WITHOUT PREJUCICE. For the reasons explained above,
Anderton may file an amended complaint within 21 days of this Order.
(5) Defendant Bannock County’s Motion for Sanctions (Dkt. 29) is DENIED.
(6) Anderton’s Petition to Remove State Cases to U.S. Federal Court (Dkt. 11) is
DENIED AS MOOT.
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(7) Anderton’s Petition for Injunction (Dkt. 12) is DENIED AS MOOT.
DATED: February 2, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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