Lizalek et al v. Milwaukee County et al
Filing
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ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 7/2/2013. 12 MOTION to Dismiss filed by Milwaukee County GRANTED based on lack of subject matter jurisdiction and DISMISSED in all other respects; 17 MOTION for Summary Judgment filed by Karen Nancy Lizalek, Gary Charles Lizalek DISMISSED. (cc: all counsel, via US mail to Plaintiffs)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GARY CHARLES LIZALEK,
KAREN NANCY LIZALEK, and
UNITED STATES OF AMERICA LAND
PATENT, CERTIFICATE NO. 559,
Plaintiffs,
-vsCOUNTY OF MILWAUKEE, and
LOT 7 IN BLOCK 2 IN MOUNT ROYAL
ESTATES, LOCATED IN THE NORTHEAST
QUARTER OF THE SOUTHEAST QUARTER
OF SECTION TWENTY, TOWNSHIP EIGHT
NORTH, RANGE TWENTY-TWO EAST OF
THE FOURTH PRINCIPAL EXTENDED
MERIDIAN, 1831,
Case No. 12-C-1005
Defendants.
DECISION AND ORDER
Pro se Plaintiffs Gary Charles Lizalek and Karen Nancy Lizalek (collectively
the “Lizaleks”) commenced this action against the County of Milwaukee (“County”)
challenging its title to their house after a tax lien foreclosure and seeking to enjoin the
County from pursuing an eviction proceeding it had commenced in the State courts.1
Pursuant to the Federal Rules of Civil Procedure, the County filed a motion to dismiss
1
The eviction action was dismissed on November 30, 2012. Milwaukee Cnty. v. Lizalek, No.
2012SC030229 (Milwaukee Cnty. Cir. Ct. Nov. 30, 2012.) See wcca.wicourts.gov (last visited on
July 2, 2013). However, the Court addresses the issue because the Lizaleks ask for a permanent
injunction preventing the County from “trespass, harassment, interference with, infringement upon,
hindrance, impairment, molestation, imposing obligations(s) upon, or in any way or manner
whatsoever controlling or attempting to control . . . [Plaintiffs‟] private property.” (Compl. 23-25.)
(ECF No. 1.)
under Rule 12(b)(1) for lack of subject matter jurisdiction, and under Rule 12(b)(6)
for failure to state a claim. (ECF No. 12.) The Court grants the County‟s motion to
dismiss for lack of subject matter jurisdiction.
BACKGROUND
To give perspective regarding this action, the Court describes the various
documents that the Lizaleks have filed. The 25-page “Verified Complaint to Quiet
Title to Real Private Property” and its accompanying 33-page “Memorandum of Law”
(ECF No. 15) are difficult to characterize because they contain over 100 distinct legal
and philosophical citations with few facts.
The 13-page “Material Authorities”
section of the Complaint and all nine sections of the Memorandum of Law relate
generally to the land that is the subject of the dispute without articulating a clear legal
basis for the suit.
Instead, the Lizaleks provide political and philosophical
justifications for their refusal to pay property taxes or abide by the foreclosure and
eviction proceedings.
Because the Complaint is lacking in facts, the Court takes judicial notice of
various public documents to provide context for the dispute. See Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir. 2012). In July 2011, the County began
foreclosure proceedings in the Circuit Court for Milwaukee County, Wisconsin upon
the Lizaleks‟ house in Glendale, Wisconsin pursuant to its tax lien on the property.
Although the Lizaleks contested the foreclosure, the circuit court ruled in favor of the
County in February 2012. An amended judgment was entered on July 30, 2012.
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Milwaukee Cnty. v. List of Tax Liens for 2011 #1, No. 2011CV011128 (Milwaukee
Cnty. Cir. Ct. July 30, 2012). See wcca.wicourts.gov (last visited on July 2, 2013).
An appeal from that judgment is fully briefed and is awaiting a decision by the
Wisconsin Court of Appeals. Milwaukee Cnty. v. List of Tax Liens for 2011 #1, No.
2012AP000961 (Wis. Ct. App.). See wscca.wicourts.gov (last visited on July 2,
2013.)
In September 2012, the County began an eviction proceeding that prompted the
Lizaleks to file this case seeking to quiet title and moving for a preliminary injunction
or a temporary restraining order, in addition to a permanent injunction, staying the
eviction. After this Court denied the Lizaleks‟ motion for a preliminary injunction
and temporary restraining order (ECF No. 10), the County filed a motion to dismiss
for lack of subject matter jurisdiction and failure to state a claim. The Lizaleks moved
for summary judgment. (ECF No. 17.)
DISCUSSION
Federal courts are courts of limited subject matter jurisdiction, only able to
hear actions that Congress has designated. Hart v. FedEx Ground Package Sys. Inc.,
457 F.3d 675, 679 (7th Cir. 2006).
The burden of establishing subject matter
jurisdiction is placed on the party asserting jurisdiction; here the Lizaleks. See id.
Land Patent
The Lizaleks argue that this Court has subject matter jurisdiction because they
possess a land patent to their property which they can trace back to a conveyance
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from the federal government. They invoke federal question jurisdiction and claim
that because their land patent originated from a congressional grant prior to the
Wisconsin Enabling Act which gave authority over public lands to the state, it
“arise[s] under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331.
Furthermore, the Lizaleks claim that the County has violated several sections
of the United States Constitution (specifically article VI clause 2, article I section 10,
and article IV section 3 clause 2), infringing their personal constitutional rights and
presenting a federal question. However, for the following reasons the Court will
dismiss the case for lack of jurisdiction.
Both the United States Supreme Court and the Court of Appeals for the
Seventh Circuit have ruled that the existence of a land patent which can be traced
back to an act of Congress does not grant federal question jurisdiction. See Oneida
Indian Nation of N.Y. v. Cnty. of Oneida, 414 U.S. 661, 676-77 (1974); Shulthis v.
McDougal, 225 U.S. 561, 570 (1912); Joy v. City of St. Louis, 201 U.S. 332, 341
(1906); Wisconsin v. Glick, 782 F.2d 670, 672 (7th Cir. 1986); Hilgeford v. Peoples
Bank, 776 F.2d 176, 178-79 (7th Cir. 1985); Wisconsin v. Baker, 698 F.2d 1323, 1327
(7th Cir. 1983). In a case strikingly similar to the one presently before the Court, the
Hilgeford plaintiffs (“Hilgefords”), themselves pro se, filed a quiet title action against
their mortgagee in the federal district court, claiming their federal land patent gave
them superior title. 776 F.2d at 177. Following a clear line of cases, the district court
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dismissed the case for a lack of subject matter jurisdiction and the court of appeals
affirmed. Id. at 179. The appellate court found that “[i]t is well settled . . . that a
controversy regarding land has never been regarded as presenting a federal question
simply because one of the parties to it has derived his title from a patent or under an
act of Congress.” Id. at 178; see also Baker, 698 F.2d at 1327 (finding Congress‟s
transfer of rights to the State of Wisconsin via the Wisconsin Enabling Act of 1846
did not create a suit “arising under” federal law).
The Hilgeford court also ruled that the allegation of a constitutional violation
does not provide federal question jurisdiction when the true underlying issue is a
foreclosure, reasoning that “[t]he instant case does not require the interpretation or
construction of the alleged [constitutional] bases of jurisdiction. Rather, the action
involves only . . . foreclosure, proper for state court determination, not federal court.”
776 F.2d at 179.
In their brief the Lizaleks attempt to distinguish this action from Hilgeford,
indicating that the Hilgefords‟ patent was forged while the Lizaleks‟ is genuine. The
distinction is immaterial. The court of appeals did not base its decision on the
authenticity of the Hilgefords‟ patent, but rather ruled that land patents themselves do
not grant jurisdiction.
The Lizaleks, like the Hilgefords, ultimately attempt to rest federal jurisdiction
of their title dispute on the congressional origin of their land patent and related
constitutional violations, but the Lizaleks‟ patent does not itself raise a federal
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question nor does the Wisconsin Enabling Act create a federal question.
The
Lizaleks‟ allegations of constitutional violations are really masked attempts to reclaim
title to their property and do not involve the interpretation of any federal statutes or
constitutional provisions.
Tax Injunction Act
While not argued by either party, the Lizaleks‟ suit is also barred by the Tax
Injunction Act (“TIA”).
Passed in 1937, the TIA‟s goal was to “restrict „the
jurisdiction of the district courts of the United States over suits relating to the
collection of State taxes,‟” Hibbs v. Winn, 542 U.S. 88, 104 (2004) (quoting S. Rep
No. 75-1035, at 1 (1937)), in order to stop sophisticated taxpayers from avoiding
taxes through routes other than the taxing authority. Id. at 105. The TIA states 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.” 28 U.S.C. § 1341. The Supreme Court has
extended the TIA to bar federal district courts from issuing injunctive or declaratory
relief in state tax matters that fall within the act. California v. Grace Brethren
Church, 457 U.S. 393, 408 (1982).
Assessing a tax lien, issuing a foreclosure based on that lien, and commencing
eviction proceedings qualify under the statutory language as “collection of any tax
[es].” 28 U.S.C. § 1341; RTC Commercial Assets Trust 1995-NP3-1 v. Phoenix Bond
& Indem. Co., 169 F.3d 448, 453 (7th Cir. 1999) (“it is difficult to see how
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[preventing Cook County from foreclosing on the property] could be characterized as
anything but an effort to „enjoin, suspend, or restrain the . . . levy or collection‟ of a
tax under state law”) (quoting 28 U.S.C. § 1341). The United States Supreme Court
has defined “plain, speedy and efficient remedy” in the state courts as one that has
been “tailormade for taxpayers,” Hibbs, 542 U.S. at 107, and “„provides the taxpayer
with a full hearing and judicial determination‟ at which she may raise any and all
constitutional objections to the tax,” Grace Brethren Church, 457 U.S. at 411
(quoting Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 514 (1981)).
Like Grace Brethren Church, the Lizaleks‟ requests for injunctive and
declaratory relief against the County are governed by the TIA.
As in RTC
Commercial Assets Trust, the County‟s foreclosure and eviction proceedings should
be characterized as the collection of taxes under the act. Finally the Lizaleks have at
their disposal “tailormade” hearings for a full judicial determination. Wisconsin
Statute § 71.88(2) provides a specified tax appeals commission that will hear all
aggrieved parties. This commission affords the Lizaleks and any other party the
opportunity to air all of their complaints for a full review. Thus, the County‟s tax
foreclosure and eviction actions fit squarely within the TIA, which bars this Court
from hearing the Lizaleks‟ claim.
This Court lacks subject matter jurisdiction to hear the matter, and the
County‟s motion to dismiss on that ground is granted. Consequently, the Court will
dismiss the Rule 12(b)(6) motion and the Lizaleks‟ motion for summary judgment.
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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
The County‟s motion to dismiss (ECF No. 12) is GRANTED based on the
lack of subject matter jurisdiction and is DISMSSED in all other respects;
The Lizaleks‟ motion for summary judgment (ECF No. 17) is DISMISSED;
This action is DISMISSED; and,
The Clerk of Court is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 2nd day of July, 2013.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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