IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF PIERCE

No. 06 1 3844 6

(RALJ APPEAL OF:)

No. 5YCOO1O21

IN THE DISTRICT COURT OF THE STATE OF WASHINGTON

COUNTY OF PIERCE

STATE OF WASHINGTON, COUNTY OF PIERCE, RESPONDENT

v.

Paul W. Hiatt, PETITIONER

MOTION TO MODIFY RULING DENYING REVIEW

Paul W. Hiatt, Petitioner

_________________________________________

CERTIFCATE OF SERVICE

This is to certify that a true copy of this Motion was served upon the Pierce County Prosecutor, 930 Tacoma Ave S, Tacoma WA 98402, by regular mail on June 26, 2008.

___________

Paul W. Hiatt

Motion

P. 4, Section A, Identity of Petitioner

P. 4, Section B, Relief Requested

P. 4 – 5, Section C, Facts Relevant to Motion

P. 5 – 23, Section D, Assignment of Error to Ruling Denying Review

P. 5 – 9, Sub-section D(1), District Court Lacked Constitutional Jurisdiction

P. 9 – 14, Sub-section D(2) Violation of Speedy Trial Rule

P. 14 – 18, Sub-section D(3) Criminal Complaints – Insufficiency - Violate The Statute of Limitations - Amendments Prohibited

P. 18 – 20, Sub-section D(4) Illegality Of The Search Warrant and Trial Use of The Poisonous Fruit

P. 20 - , Sub-section D(5) Judicial Bias, Interest, and Prejudice as Evidenced by Abuse of Discretion

Please note: The Motion For Discretionary Review is incorporated herein, with the Table of Authorities at Page 2 thereof, as applied to the issues presented in Assignment of Error herein.

U.S. CONST., amend. VI, p. 17, 21 U.S. Const. amend. XIV, p. 21

CSW Article I Section 22, p. 17, 22 CSW Article I Section 29, p. 6

CSW Article IV Section 6, p.5, 6

CrRLJ 2.3(a), p.18, 19

CrRLJ 3.3 (b)(5), p.12; CrRLJ 3.3(f)(1), p. 11; CrRLJ 3.3 (e)(9), p. 10, 12; CrRLJ 3.3(g), p. 12

CrRLJ 3.6(b), p. 19

CrRLJ 4.1, p. 13

CrRLJ 7.8, p. 13

CrRLJ 9.9, p. 10

Anderson v. Chapman, 86 Wash. 2d., (1975), p. 6

Deschenes v. King County, 83 Wn.2d 714, 521 P.2d 1181 (1974), p. 8, 9

Elkins v. United States, [364 U.S. 206] at 217, p. 20

Everett v. Slade, (1973), 515P.2d. 1295, p. 8

Harkness v. Hyde, 98 U.S. 476, p. 9

Heaney v. Seattle Municipal Court, 35 Wn. App. 150, 665 P.2d 918 (1983), p. 11

In re Elliot, 74 Wn.2d 600, 446 P.2d 347 (1968), p. 6

In re Hendrickson, 12 Wn.2d 600, 606, 123 P.2d 322 (1942), p. 9

Manus v. Snohomish County Etc., 44 Wn.2d 893, 271 P.2d 707 (1954) p. 5

Seattle v. McCready, 123 Wn.2d 260(1994), p. 19

State ex rel. Malmo v. Case, 25 Wn.2d 118, 169 P.2d 623 (1946), p. 6

State v. Bray,52 Wn. App. 30, 34, 756 P.2d 1332 (1988), p. 16

State v. Bryce, 41 Wn. App. 802, 707 P.2d 694 (1985), p. 17

State v. Chaten, 925 P 2d 631(1996), p. 17

State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885 (1999), p. 22

State v. Freeman, 54 Wn. App. 734, 775 P.2d 993, (1989), p. 9

State v. Glover, 25 Wn. App. 58, 604 P.2d 1015 (1979), p. 17

State v.Goldthorpe, 14 Wn. App. 268 540 P.2d 455 (1975), p. 11, 12

State v. Greathouse 113 Wn. App. 889, (2002), p. 16

State v. Griggs, 33 Wn. App. 496, 656 P.2d 529 (1982), p. 23

State v. Jenkins, 76 Wn. App. 378, 884 P.2d 1356 (1994), p.12

State v. Lemley, 64 Wn. App. 724, 828 P.2d 587 (1992), p. 11

State v. Markle, 118 Wn.2d 424, 823 P.2d 1101 (1992), p. 18

State v. McKenney, 20 Wn. App. 797, 582 P.2d 573 (1978), p. 23

STATE v. MERMIS 105 Wn. App. 738, (2001), p. 16

State v. Miffitt, 56 Wn. App. 786, 785 P.2d 850 (1990), p. 13

State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002, p. 21, 22

State v. Newcomer, 48 Wn. App. 83, 737 P.2d 1285 (1987), p. 12

State v. Newman, 63 Wn. App. 841, (1992), p. 18

State v. Novotny, 76 Wn. App. 343, 884 P.2d 1336 (1994), p. 17

State v. O'Bremski, 70 Wn.2d 425, 423 P.2d 530 (1967), p. 20

State v. Pelkey, 109 Wn.2d 484, 745 P.2d 854 (1987), p. 17

'State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992), p. 21

State v. Price, 59 Wash. 2d 788, 370 P. 2d, 979(1962), p.13

State v. Ross, 20 Wn. App. 448, 580 P.2d 1110 (1978), p. 23

State v. Smith, 117 Wn.2d 263, 814 P.2d 652 (1991), p. 10

State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980), p. 14

State v. Striker, 87 Wn.2d 870, 557 P.2d 847 (1976), p. 13

State v. Taylor, 17 Wash App. 736, (1977), p. 10

State v. White, 94 Wn.2d 498, 503, 617 P.2d 998 (1980), p. 12

State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), p. 19

State v.Williams, 87 Wn.2d 916, 557 P.2d 1311, 1976, p. 11

Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 840, 14 P.3d 877 (2000), p. 22

WESTERMAN v. CARY, 125 Wn.2d 277,(1994), p. 6

Black’s Law Dictionary, p. 7, 8, 13

21 C.J.S.Courts SS 118 (1940), p. 9

37 Am. Jur. 2d,§ 405-407, p.13

Stephen H. Gifis Law Dictionary, p. 7, 8, 9

Thorndike-Barnhart Comprehensive Dictionary, p. 7

Washington Criminal Practice, Section 4.02, p. 17

Doc. 1, 6 pages, Commissioner’s Ruling Denying Review

Doc. 2, 1 page, Pierce Co. GIS Topographic Wetlands Overlay, ex post facto to conviction

Doc. 3, 1 page, face page Cease and Desist Order 9/03, constructively seizing property

Doc. 4, 39 pages, Motion and Memorandum to strike Report, offer of proofs and affidavits.

Doc. 5, 55 pages, Motion To Dismiss – violation of Speedy Rule

Doc. 6, 8 pages, pages 6-7, Ruling denying dismissal on Speedy Rule

Doc. 7, 2 page, Affidavit of Prejudice re: Speedy Rule, Altered Docket changing date of filing

Doc. 8, 19 pages, RP 6/17/05

Doc. 9, 22 pages, Docket printout, District Court,

Doc. 10, 80 pages, RP 6/23/05

Doc. 11, 79 pages, RP 10/13/05

Doc. 12, 32 pages, RP 2/3/06

Doc. 13, 12 pages, all version of Criminal Complaints/ Informations

Doc. 14, 18 pages, RP 7/7/05

Doc. 15, 10 pages, Completed Motion For Bill Of Particulars, with Affidavit and Exhibit

Doc. 16, 1 page, true copy defense jury instruction denied, re: statute of limitations, CP.

Doc. 17, 11 pages, RP 4/21/06 and "To Convict" instruction actual copy.

Doc. 18, 77 pages, RALJ Revised Amended Brief with Appendices

Doc. 19, 9 pages, Revised Table of Contents, Authorities and Exhibits To RALJ Brief

Doc. 20, 2 pages, Search Warrant

Doc. 21, 4 pages, Complaint For Search Warrant

Doc. 22, 4 pages, defense Updated Motion In Limine

Doc. 23, 5 pages, Motion For Reconsideration For Judge To Recuse And Disqualify Himself..

Doc. 24, 2 pages, Motion To Recuse And Transfer Case For Sentencing

Doc. 25, 16 pages, Memorandum of Law, Affidavit, and Offer of Proofs In Support of Motion to Recuse for Sentencing.

Doc 26, 1 page, Docket print 6/26/06

Doc. 27, 8 pages, Eyewitness Affidavits of bias of Judge Kenworthy at trial

Doc. 28, 14 pages, RP accelerated sentencing hearing 8/16/06

PLEASE NOTE: THE DOCUMENTS IN THE APPENDIX HAVING BEEN MARKED PREVIOUSLY, THE CORRECT NUMBER AS NUMBERED ABOVE WILL APPEAR AS CIRCLED UPON THE FACE PAGE OF THAT DOCUMENT IN THE LOWER RIGHT HAND CORNER.

Paul Hiatt respectfully requests the relief designated at part B below.

Please note: In the interest of economy of judicial time, to avoid unnecessary duplication of the record, additional documents provided with this Motion To Modify will be numbered, designated as "Appendix", and reference will be made to those documents provided in the Appendix to the incorporated Motion For Discretionary Review, (hereinafter "MDR"), as "MDR Appendix".

Petitioner requests this Court reverse the that Commissioner’s Ruling denying review dated May 27, 2008, grant review, (Appendix Doc. 1, 6 p.), and reverse that Order On Appeal Pursuant To RALJ 9.1(g) of the Pierce County Superior Court, (MDR Appendix pp. 1-3), and to thereby reverse the misdemeanor conviction for Illegal Wetlands Activity against Petitioner in Pierce County District Court, with all judgments and punishments predicated thereupon, for good and sufficient cause of law and fact set forth herein, and in the Motion For Discretionary Review , which is incorporated fully herein by reference.

The facts relevant to this motion are more fully stated at MDR pp. 10-13 Section D., Statement Of The Case. Petitioner believes, based upon the law and facts set forth and documented by MDR and MDR Appendix, together with assignment of error to the Ruling Denying Review herein, that the Ruling has erred: in misconstruing many ultimate facts of the issues presented; in failing to acknowledge or recognize essential limited documentation and records provided in application to the law and issues presented; in insufficiency for failure to address some of the reversible issues presented for review; in misinterpretation of certain issues presented, and as such misapplication of law in ruling on said issues; and hence in ruling the case does not meet RAP criteria for review; with the result of gross miscarriage of justice in denial of review, with the result of overlooking real evidence which resulted in the subject false and fraudulent conviction for acts which do not constitute any crime, and with the direct result of bypassing the unlawful meting out of punishments unauthorized and directly prohibited by the legislature for a misdemeanor. Further, it is noteworthy the Ruling completely mischaracterizes specifically exempted and wholly lawful repairs and maintenance performed as "..admitted activity...to drain his property", when the records provided prove Petitioner was never charged with "drain" as an element of the alleged "crime", but the jury was given "to convict" instructions for this element which was never charged, as defined by the trial court’s rulings defining those elements in response to Motion For Bill Of Particulars, and the trial amendment RP, which were provided in MDR Appendix.

Preliminarily, Petitioner also notes that the Ruling complains of inadequate record provided. Upon filing his Notice For Discretionary Review in the Superior Court, Petitioner carefully inquired of the deputy clerk there, who assured him that court was required to transmit the entire record on RALJ appeal to this Court within two weeks, for the Court’s ready reference in deciding review, which record is referenced extensively in parts of the MDR Appendix. Therefore, and although the RAP is clear that only when review is accepted is the specific record on review to be designated; since Petitioner was apparently mislead to his prejudice and real detriment, Petitioner respectfully moves the Court to accept and review those supplemental records provided as Appendix to this motion, in the interest of justice. This Court is also respectfully requested to note, in deciding this motion, that certain matters and punishments, such as designation by PALS of "wetlands" absent required process, by GIS map overlays ex post facto to his "conviction" for "wetland’s activity" upon Petitioner’s subject property, or unauthorized clouding of his title deed as a coercive punishment, were done off the record by administrative persons, with silent judicial assent, so that the official documents provided, with the very limited RP showing Petitioner was refused any ruling upon them, are the record in factual proofs of those issues.

4. ASSIGNMENT OF ERROR TO RULY DENYING REVIEW

D(1) District Court Lacked Constitutional Jurisdiction - MDR pp 5-6, ISSUES, Sections C(1), C(2), C(3). The Ruling on the absence of constitutional jurisdiction of the District Court, with the failure or refusal of that court to transfer the case to Superior Court for trial upon timely application, and the consequent mandate of reversal and right of appeal in this Court, is error.

The Ruling states, at page two and three, "This case may involve the use of real property, but it does not involve title or possession. This is a criminal case, and the crimes charged are misdemeanors, properly tried in district court. RCW 3.66.060." Not only does this error employ the use of semantics to circumvent the constitutional mandate by misconstruing the meaning of the words "use" or "involve" in context, but reasons from both factual and legal false premises. The Ruling effectively commits the same logical and legal fallacy continually presented by the prosecutor, which is that because this is a misdemeanor case at law, the statutory legislative limited legislative grant of District Court jurisdiction to criminal misdemeanor cases extends to the specific constitutional prohibition, CSW Article IV Section 6, against that court adjudicating cases at law involving title and possession of real property. That a general statutory grant cannot nullify a specific constitutional exception prohibiting some exclusive application of that grant is self evident and long settled in our law:

[2] STATUTES-VALIDITY-EFFECT OF PARTIAL INVALIDITY-SEVERABILITY.

Only the provisions of a statute are invalid which themselves offend the constitution, together with such others as are so related to them that it cannot be supposed the legislature would have passed them independently.

[1] Constitutional Law-Courts-Jurisdiction-Supreme Court-Extension of Jurisdiction.

The state constitution is a limitation upon the actions of the legislature rather than a

grant of power; hence, it may extend the jurisdiction of the Supreme Court to include areas other than those specified in Const. Art. 4 SS 4, unless the particular enlargement of jurisdiction

is in some way constitutionally forbidden. (emphasis added)

The prohibition is clear as applied:

The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise.

A constitutional provision which is clear and plain in its terms is not subject to judicial construction.

CSW Article IV Section 6 Jurisdiction Of Superior Courts (In pertinent part)

The superior court shall have original jurisdiction in all cases at law which involve the title or possession of real property.

[1]..The superior court, being of general jurisdiction and having been established as the trial

court of the state, was by Const. Art. IV, SS 6, and Rem. Rev. Stat., SS 15, clothed with original jurisdiction in all cases in which exclusive jurisdiction shall not have been by law vested in some other court.

The subject criminal case is distinctly "at law", by strict definition of law:

At Law. According to law; by, for, or in law; particularly in distinction from that which is done according to equity. Black’s Law Dictionary.

The subject case "involves" title and possession of real property:

"involve". "have as a necessary part, condition, or result: affect" Thorndike Barnhart Dictionary

[2] Constitutional Law - Construction - Purpose - In General. A constitutional provision is interpreted so as to give effect to the manifest purpose for which it was adopted.

[3] Constitutional Law - Construction - Meaning of Words - Ordinary Meaning - In General.

Absent a showing to the contrary, language in the constitution is presumed to carry its ordinary and popular meaning.

[4] Constitutional Law - Construction - Context – Contemporary Law.

Constitutional language is considered in context. A court should consider the right as it existed at the time the constitution was adopted.

Therefore, to attempt to separate and re-define the right of use, same said as the package of economic liberties inherent in and integral to the ownership, title, binding covenants of record memorialized by and running with the deed guaranteeing quiet use and enjoyment until and unless sold and conveyed or taken with compensation for legitimate and authorized purposes, is gross error; as is the attempt to redefine "involve" to exclude its ordinary meaning, (or perhaps any definition whatever), as to "use" being a "necessary part, condition, or result: affect" inherent in and inseparable from the inclusive, clear and unambiguous meanings of "title" and "possession", in right, title, and interest.

This also is self-evident upon careful examination of long-standing legal definition:

RIGHT The word de-notes an interest or title in an object of property; a just and legal claim to hold, use, or enjoy it, or to convey or donate it, as he may please. See Co. Litt. 345a. BLACKS

TITLE is the means whereby a person’s right to property is established. Code Ga. 1882§ 2348, BLACKS.

POSSESSION is good title where no better title appears. 20 Vin. Abr. 278; BLACKS

INTEREST In real property, the broadest terms applicable to claims in or on real estate, including any right title, or estate in or lien on real property, 268 N.W. 665, 667; the legal concern of a person in the property, or in the right to some of the benefits or uses from which the property is inseparable. 107 So. 102, 104. (emphasis in original) Steven H. Gifis Law Dictionary

Pierce County has as certainly taken constructive possession, through repeated constructive seizure of the property by administrative and then district court orders prohibiting its use for those purposes set forth and guaranteed by deed covenants of record, (all absent required due process or constitutionally required compensation); by constructive seizure in violation of due process - Everett v. Slade, (1973), 515P.2d. 1295; by unauthorized instruments filed of record clouding and encumbering, and purporting to nullify the title deed with the rights, covenants, and uses memorialized therein, both exercising and asserting dominion and control over the property:

CONSTRUCTIVE POSESSION though not being in direct control of, or actually present upon the property, knowingly having the both the power and the intention at any given time to exercise dominion and control over it. 426 F. 2d 992.; Steven H. Gifis Law Dictionary

This constructive possession Pierce County both claims and exercises by deed instrument of record, by public notice of record, and by designation of the property as some category of "wetlands" ex post facto to the contested "conviction" by GIS mapping upon the official records of Planning, absent any of the contractual applications required by Code waiving the deed rights of record, in flagrant violation of the constitutional prohibitions against such taking absent just compensation, is defined in law as possessory interest, which proves this case involves possession in the clear and unambiguous intent of the Framers and Drafters:

POSSESSORY INTEREST

a right to exert control over certain land to the exclusion of others, coupled with an intent to exercise that right. Restatement, Property, § 7. Steven H. Gifis Law Dictionary

The evidence of record is as conclusive and sufficient in establishing the fact Pierce County, the prosecution, and the district court actually did all of the above:

• MDR Appendix P. 4, Pierce County GIS Wetlands overlay provided by Pierce County Compliance Engineer in September 2003, showing no wetlands on or within 150’ of the subject property, original admitted in evidence with admission of origin by county agent.

• Appendix Doc. 2, 1 p., Pierce County GIS Topographic and Wetlands Overlay showing wetlands created upon the property ex post facto to trial for "wetlands activity" and "conviction", imposed absent any and all requirement of applicable code or statute, absent compensation.

• MDR Appendix P. 5, WAC 222 Permit Exemptions provided by Department of Natural Resources upon Pierce County Compliance Engineer referral September 2003, denied admission in evidence at "trial".

• MDR Appendix P. 6, Closure of Complaint File for "No impact", September 2003, by Pierce County Compliance Engineer.

• MDR Appendix P. 7, Proof of Petitioner good faith response to County requesting administrative due process hearing prior to any further action, (ignored), and invoking the exclusionary rule, (ignored), denied admission into evidence at "trial".

• Appendix Doc. 3, 1p., face page of ultra vires Pierce County Cease and Desist Order issued September 30, 2003, constructively seizing the property in violation of due process rights timely invoked in writing, threatening Petitioner and his wife, demanding property and funds ex post facto to completion of exempted maintenance under DNR provided WAC.

• MDR Appendix P 41, RP of alleged original "arraignment" 4/6/05, district court imposes conditions of release constructively seizing and limiting the use of the property absent required due process.

• MDR Appendix Pp. 51-52, Motion to Transfer to Superior Court

• MDR Appendix Pp. 55, lines 11-16, RP 4/25/06 proving the district court ordered the Report Planning and the prosecutor used to further unlawfully take and encumber, and further constructively possess the property, as a coercive measure.

• MDR Appendix P. 58, falsified Report of Planning of record, (ordered by Judge Kenworthy 4/25/06), with biologist and prosecutor names.

• MDR Appendix Pp. 59-60, Affidavit of Record of Petitioner proving Report of Planning is falsified, fraudulent, coercive and extortive by documents of record.

• MDR Appendix P. 57, falsified Notice of Non-Compliance recorded absent authorization of law over Petitioner’s title deed with the Auditor, predicated directly upon the falsified Report, accusing Petitioner of activities of which a jury specifically acquitted on the duplicitous "Development" charge, taking constructive possession of and radically diminishing the value and usefulness of the property, in punishment unauthorized for a misdemeanor.

• MDR Appendix Pp. 74-79, RP Sentencing 10/18/06, Petitioner attempts to get heard on Motion To Strike Report For Fraud In Law, court refuses any ruling and throws Petitioner in jail absent statutory cause, when bail is already posted and notice of appeal is filed.

• Appendix Doc. 4, 39 pages, Motion To Strike Report For Fraud In Law and Memorandum with Exhibits and RP excerpts proving from state’s witness testimony Report is fraudulent and Petitioner is subjected to punishments unauthorized by the legislature for a misdemeanor.

When held to any standard of law, evidence, and logic, then, respondent’s argument, with every ruling to date on or around this issue is reversible error, requiring dismissal with prejudice and vacation of all judgments:

Deschenes v. King County, 83 Wn.2d 714, 521 P.2d 1181 (1974).

[1] Courts-Jurisdiction-In General.

In the absence of jurisdiction over a matter, a court is empowered only to order it dismissed.

The rule is well known and universally respected that a court lacking jurisdiction of any matter may do nothing other than enter an order of dismissal. 21 C.J.S.Courts SS 118 (1940).

It is also a fact of law of record that Petitioner timely challenged jurisdiction ab initio, and never waived that challenge, or any of his rights at any time, (MDR Appendix Pp. 23, 30,35, RP 4/6/05 - alleged arraignment):

Illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside; nor after such motion is denied, by his answering to the merits; such illegality is waived only when, without having insisted upon it, he pleads in the first instance to the merits. Harkness v. Hyde, 98 U.S. 476.

This want of constitutional jurisdiction of the district court is further a due process issue mandating reversal:

The essential elements of the constitutional guaranty of due process, in its procedural aspect, are notice and an opportunity to be heard or defend before a competent tribunal in an orderly proceeding adapted to the nature of the case.

"A competent court is one having proper jurisdiction over the person or property at issue."

Petitioner therefore respectfully asserts once more that this matter of the constitutional prohibition upon the district courts to hear cases at law involving the title and possession of real property is indeed of broad public interest, as private ownership of such property with the package of economic liberties, use and enjoyment long recognized as inherent in title and possession are constitutional foundation blocks of our inalienable and constitutional rights; and that the criteria of RAP 2.4(d)(1),(2),(3),and (4) for acceptance of review are all proved above to be met on this one issue alone.

D(2) Violation of Speedy Trial Rule – MDR p. 4, B(5), ISSUES p. 7-8, C(10), C(11); MDR Appendix, pp. 90-94, Appellant’s Reply Brief, Refutation Of State’s Arguments On Speedy Trial.

It first may be important to note that all subsequent continuances to Petitioner’s motion to dismiss for violation of speedy rule, (Appendix, Doc. 5, 55 pages, RP Ruling denying, 7/27/05, Appendix Doc. 6, 8 pages, pp. 6 - 7), were specifically noted as without prejudice to the right of this Petitioner to dismissal for prior speedy rule violation, and are not relevant:

State v. Freeman, 54 Wn. App. 734, 775 P.2d 993, (1989)

1] Criminal Law - Trial - Time of Trial - Waiver of Speedy Trial - Request for Continuance.

A criminal defendant does not waive an objection to a violation of the speedy trial rule (CrR 3.3) by requesting a continuance after having been denied a dismissal based on the rule.

The date Petitioner filed his Affidavit Of Prejudice against Judge Buttorf is the morning of June 13, 2005, as proven by both the stamped document of record (Appendix, Doc. 7, 2 p.), and the affidavits of two witnesses to that filing, (CP). The altered or falsified Docket, (Appendix, Doc.7 p. 2), with the new speedy date entered by D.P. Rose, is only one of many prejudicial irregularities proved by the record, and the claim of any other date to begin the excluded period is fatal error:

April 6 is the date of alleged arraignment (MDR Appendix, p. 20, RP). Less than 30 days of speedy period remained upon the filing of an Affidavit of Prejudice the morning of June 13^th. The law is clear that required immediate transfer, CrRLJ 9.9:

(c) Transfer. Whenever a judge is disqualified the judge shall immediately make an order transferring and removing the case to another judge.. (emphasis added).

[5] Courts - Rules of Court - Construction - Unambiguous Language - In General.

Clear language in a court rule is not subject to judicial construction; such language is given its ordinary meaning.

[1] Statutes - Construction - Unambiguous Language – Undefined Terms. An unambiguous statute is not subject to judicial construction. In the absence of a statutory definition, words in such a statute are given their ordinary meanings.

"Disqualification of district judge and necessity of arranging for substitution of another judge was not good cause for failing to bring accused to trial... where the delay was caused by fact that the disqualified judge, .. failed to immediately seek a replacement."

Pro Tem Tedrick, at hearing the 17^th of June 2005, ( Appendix, Doc. 8, 19 pages, RP 6/17, p. 9 line 12) stated very directly that the order of transfer she was looking at was signed June 14^th, and Judge Kenworthy agreed with that on June 23^rd when he and Mr. Rose recalculated speedy and continued trial over timely objections, but later Judge Kenworthy insisted it was signed June 16^th , on July 27^th (Appendix, Doc. 6, p. 6-7, RP 7/27/05), when he invoked ex post facto cure and denied dismissal for speedy violation, working from the altered Docket, Appendix Doc. 9, 22 pages.

The date of filing of the Affidavit of Prejudice then clearly commences, (is the first day of), a five day excluded period:

(9) Disqualification of Judge. A five-day period of time commencing with the disqualification of the judge to whom the case is assigned for trial.

The five day excluded period then "commenced" (began) Monday June 13^th, and ended Friday June 17^th, 2005. No "weekend" is possible to compute or include under the rule as alleged by the state.

Next, Petitioner clearly noted in general objection the running of the clock on speedy trial (Appendix Doc. 8, RP June 17^th, 2005, page 4), belying the contrary claim of the state. It should also be noted at this point that D.P. Rose, (who had scheduled a vacation for the second half of July), had taken it upon himself prior to hearing of June 17^th, (Appendix, Doc. 9, CP Docket, p.4 at "u"), to note in the Docket computer that "Speedy Trial Expires 8/9/05". Pro Tem Tedrick, at hearing of June 17^th, clearly took exception to that, calculated and ruled the new speedy expiration (in error, but much closer- within one court day) to July 14^th, (Appendix, Doc. 8 RP), where Appellant did not understand due working from a borrowed 1998 rule book at that time.

The RP of 6/17/05, in entirety, or pages 12 and 18, (as alleged by the state), does nowhere confirm or re-set a trial date of June 27as claimed by the state in response, but even if it did, this is not relevant because any change in trial date was within the original 90 days speedy trial period. Here, the state attempts to distort Lemley beyond recognition, in the spurious attempt to invoke yet another excluded period of ten days through the misuse of CrRLJ 3.3(f)(1):

[1] Criminal Law - Trial - Time of Trial - Waiver of Speedy Trial - Incorrect Expiration Date - Trial Scheduled Within Period.

A defendant whose trial is correctly scheduled within the applicable time for trial period

under CrR 3.3 but who questions in open court the court's calculation of the time for trial expiration date has not waived the protection of the rule when the trial is continued to a date beyond the expiration of the time for trial period. The waiver for failure to object under CrR 3.3(f)(1) refers to the correctness of the trial date, not the expiration of the time for trial period.

Further,

Makes clear that the "ten day" rule cannot possibly be applied. The record entire shows that, (in direct parallel to Heaney), Petitioner did claim all of his rights timely, and waived none of them at any time, (and further, did request notification of rights sua sponte, applying ab initio for the protection of the court from the plaintiff for good cause of record, yet was ignored and denied any timely fair hearing), that Petitioner did raise the speedy trial issue repeatedly in his pleadings from very early in the case, (for denial of hearing and due process), and could not have made more clear his intent not to waive speedy trial; did attempt to affirmatively assert the right to speedy trial when raised at hearing, but was quite literally threatened and coerced to silence by the court for interrupting the proceedings to object, (Appendix, Doc. 10, 80 pages, RP 6/23/05); did later in the same hearing argue the speedy trial violation issue in his motion, and did affirmatively refuse to waive speedy trial rights later in the same hearing, upon being urged to ask for continuance, and again at the following hearing July 7.

The RP of June 23, 2005 provided, (Appendix Doc. 10, p.) also makes clear both that Petitioner repeatedly questioned the court’s calculation when the trial was continued to a date beyond the expiration of the time for trial period, withdrew his oral motion for continuance immediately for the stated express purpose of not waiving his speedy right, and objected timely. There certainly was never any waiver as inferred or implied by the state:

State v.Williams, 87 Wn.2d 916, 557 P.2d 1311, 1976.

They are stringent:

(1) the right to a speedy trial is a fundamental right,

(2) courts will indulge every reasonable presumption against waiver of such rights,

(3) any waiver must be explicit, and

(4) reasons for waiver must appear in the record. We have always maintained that the tenor of Williams requires strict adherence to these guidelines

[2] Criminal Law - Trial - Time of Trial - Waiver of Speedy Trial - Pretrial Conduct.

A defendant will not be held to have waived his right to a speedy trial on the basis of his

pretrial conduct unless it is clear that he knowingly, intelligently, and voluntarily waived his right.

Further, the state’s inference or false imputation of waiver is moot diversion as applied:

State v.Goldthorpe, 14 Wn. App. 268 540 P.2d 455 (1975). No longer can the court imply a waiver of CrR 3.3 time limits from defense counsel's silence or failure to object to a trial date suggested by the court.

And the state’s opinion as to whether or not Petitioner was prejudiced by the delay is not relevant:

State v. Goldthorpe, 14 Wn. App. 268, 540 P.2d 455 (1975).

2] Criminal Law-Trial-Time of Trial-Dismissal for Delay-Prejudice.

Under CrR 3.3 no showing of prejudice is necessary.

It is therefore self-evident from the seminal authorities that the 5 day cure period under CrRLJ 3.3(e)(9) ended on June 17^th, a Friday, and includes no possible weekend days under the rule.

The 30 day period under CrRLJ 3.3 (b)(5) past the expiration of the subject excluded period therefore expired on July 17^th, a Sunday, which was clearly the new expiration of speedy trial period. The CrRLJ 3.3(g) cure period of five days invoked by the court in denying relief on July 27, 2005 (RP), then ran from Monday, July 18^th, to Friday, July 22^nd, and again, may include no weekend days.

The date the court retroactively invoked that CrRLJ 3.3(g) cure in error was again, July 27, 2005, or ten days after the new expiration of speedy period, and five days after the expiration of that cure period.

CrR 3.3(a). Although the selection of a proper trial date is the mutual task of both court and counsel, the ultimate responsibility lies with the court. The sanction of dismissal with prejudice results when CrR 3.3 is not followed.

But the court accepted Mr. Rose’s pre-crafted speedy contentions, (App. Doc. 10. RP), discarding it’s own far more accurate calculations to do so, threatening Petitioner for trying to object.

As between a criminal defendant and the State, it is the State that has the primary duty to ensure that a trial is held within the speedy trial period established by CrR 3.3.

The United States Supreme Court and our own courts have held that "[a] defendant has

no duty to bring himself to trial; the State has that duty . . .".

As such, if the "clear and unambiguous intent of the defendant" test held by our State Supreme Court in Heaney is to stand, this Court must dismiss with prejudice, but; the argument against any strict application of CrRLJ 3.3 in dismissal here does not end there, because Deputy Prosecutor Rose committed a deliberate fraud in deception upon the Court in derogation of rights and in deliberate violation of speedy trial, (Appendix: Doc. 7; Doc. 9 Docket; Doc. 5 & Exhibits attached thereto; Doc. 10, RP 6/23/05).

The element of fraud as applied to this issue warrants dismissal with prejudice, as raised timely in the original Motion:

CrRLJ 7.8 RELIEF FROM JUDGEMENT OR ORDER, (1998),

(b)... Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a ...proceeding for the following reasons:

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

See 37 Am. Jur. 2d, Fraud and Deceit SSSS 405-407.

Fraud In Law: "Constructive fraud consists of any act of omission or commission contrary to legal or equitable duty, which is contrary to good conscience and operates to the injury of another." Black’s

FRAUD. Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him injury. Black’s

There is still more mandatory ground requiring dismissal on this speedy trial issue, (which the District Court refused to ever hear on reconsideration in reversible error, despite timely offer of proofs of new fact and law, as proof of falsified Docket, (Appendix, Doc. 11 RP 10/13/05), because Petitioner was never arraigned by any known standard of law:

(MDR Appendix, pp. 20-45, RP 4/6/05; Appendix: Doc. 8, RP 6/17/05; Doc. 10, RP 6/23/05; Doc. 11, RP 10/13/05; Doc. 12. RP 2/3/06), and the District Court erred in ruling that arraignment or re-arraignment had ever occurred. The remedy for this is also dismissal for speedy violation, and when examined closely, might have made all of the arguing over dates for speedy expiration moot due even earlier expiration, had Petitioner not been denied due process in hearing of reconsideration upon timely application, (Appendix, Doc. 11, RP 10/13/05), to wit:

The duty of the State to exercise good faith and due diligence in promptly bringing a charged defendant before the court for arraignment, who has not been arrested.., arises from CrR 4.1(a), not CrR 3.3. The appropriate sanction for failing to exercise this effort is to establish a constructive arraignment date and to commence the speedy trial period from that date.

In application, then, that date from which speedy period therefore ran should be computed from the filing of the original Criminal Complaint on March 18, 2005, not April 6, 2005, pursuant to the "Striker rule".

CrR 3.3, which provides that a criminal trial must be held within specified periods following the preliminary appearance, contemplates that an accused amenable to process will be promptly brought before the court after the filing of an information. When an accused's preliminary appearance (sic. "arraignment") before the court is delayed by circumstances beyond his control, the periods set forth in CrR 3.3 run from the time the information is filed, unless a statute controls the particular circumstance without conflicting with the rule...

The rule we announce here applies only where, after the information has been filed, this procedure has not been followed. In order to protect the right of the accused, and in accordance with the manifest policy expressed in the rules, to discourage prosecutorial delays which are not approved by the court, we hold that in such circumstances a prosecution must be dismissed with prejudice on timely motion of the defendant, if it is not brought to trial within the time specified in CrR 3.3, after the information or indictment is filed. This holding is in harmony with the intent and spirit of the rules which are designed to afford a speedy trial.

Further, given the above proofs dismissal was and is required on this issue, the denial of hearing on reconsideration (Appendix, Doc. 11, RP October 13, 2005 pages 18-19 – offer of proofs) was prejudicial reversible error of constitutional magnitude. State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980).

To unravel the legal error on this issue in the Ruling, it is first necessary to prove the underlying factual error. The Ruling first completely misrepresents the actual elements charged and conviction at issue as "to drain water", then misrepresents that the conviction was for any charge of some general scheme or plan ongoing in nature, apparently because the state has advanced these arguments in stark contradiction to the record, post trial, in an attempt to conceal and promote the unlawful prosecutorial tactics employed to obtain the alleged "conviction" requiring reversal. Review of MDR Appendix, at p. 15, Criminal Complaint, and MDR Appendix at pp. 46-50 RP of the trial amendment of the complaint and elements of the only charge of which Petitioner was convicted, (Petitioner was acquitted of Count II, which contains the only mention of any alleged common scheme or plan); with Appendix Doc. 13, all versions of the Criminal Complaints, together with Appendix document 14, RP 7/7/05 p. 4-12 denying a Bill of Particulars, Appendix document 15, Completed Motion For Bill Of Particulars; MDR Appendix pages 46-50, Trial Amendment RP, and pages 78-79 RP Sentencing 10/18/06, positively establish that Petitioner was never charged with "drain" or any similar term from the broad language of the code charged, and that the charge of which Petitioner was convicted charges no general scheme or plan ongoing in nature, nor multiple counts. The above referenced records prove the following:

• That "did drain" or similar language is nowhere to be found in the elements charged as defined by the district court, or probable cause affidavit, or in any version of the charging documents as an element charged.
• That Petitioner applied for, and was denied, a Bill of Particulars, to his subsequent certain prejudice at trial.
• That at hearing 7/7/05 for on motion for Bill of Particulars, Judge Kenworthy, after repeated requests by Petitioner, clearly ruled that the elements of the charge of which Petitioner was convicted were only those acts described after the words "to wit":

Judge Kenworthy, Ruling 7/7/05: "Well, looking at count one, " to wit: Did clear brush, vegetation and trees, did grade, trench and did install, or did attempt to install, approximately three to four hundred feet of pipe in a wetland without the requisite permits or approval, contrary to county code A, B, and C." That seems pretty particular to me...

Uh, so I think the particulars have been met by what you’ve, uh what you see between these two counts, and the affidavit for probable cause... Seems clear to me... where you get down to the "to wit" in each of these counts, it does get pretty particular. Uhm, and I think they are sufficient, uh, I’m not going to direct any additional bill of particulars be filed."

• That Petitioner relied in good faith on this ruling by the court in preparing a defense for trial.
• That the oral trial amendment of the complaint after the state had rested did not remove the words "to wit" and bring in the inclusive language of the code to the elements charged as moved by the prosecution, presumably only because Petitioner objected and reminded that court of its prior ruling strictly defining those elements.
• That the court ruled, and the prosecutor agreed in direct statement, that the statute of limitations does apply to the charge of which Petitioner was convicted, and had tolled, in the prosecution moving, and the court ruling, to remove the element which had been proved at trial to violate the statue of limitations after Petitioner had been tried upon it absent notice, to prejudice the jury, and after repeated prior objections and motions on the violation of the statute of limitations having been denied, which is directly contradictory to any claim of a continuing crime, as the two things are mutually exclusive.
• That when Petitioner very specifically objected to the amendment of the elements to include the word "drain", that the prosecutor denied that it would appear in the jury instructions.
• That Petitioner’s attempt to object in pointing out that the state had indeed included that element never charged in jury instructions provided as a "to convict" instruction in prejudicial reversible error was overruled, (Appendix document 17, pages 9-11, RP and to convict instruction), unlawfully adding a new element never charged, by jury instruction, and Petitioner’s objections during trial to that issue having been introduced absent notice or any charges having been over-ruled, which will be proved on review by further RP.
• That the prosecution directly stated, (MDR Appendix p. 77, line 25, RP 10/18/06, Sentencing), "..the conduct of which he was convicted, which is the drainage of the property."
• That at Sentencing 10/18/06, Petitioner provided the transcripts of the court’s rulings on elements and challenged the prosecution to produce a complaint which ever charged him with drainage, but was simply cut off and thrown in jail for trying, being denied any ruling.
• That the Commissioner’s Ruling is error in asserting, "..this was a continuing crime", or "..there is a single, continuing criminal impulse or intent... general scheme or plan..", because the charge of which Petitioner was convicted clearly contained no such language whatever.
• That therefore the Commissioner’s Ruling is error in all aspects of ruling on the Statute of Limitations as applied, in direct contradiction of the record.

The Commissioner’s use of Mermis or of Greathouse in support of the Ruling, is therefore badly off-point, because there was no allegation of continuing criminal impulse or intent which Petitioner could possibly have been lawfully convicted of, as any element charged or in that count.

Mermis may, however off point, be notably instructive in support of Petitioner’s cause, as:

Whether a criminal impulse continues into the statute of limitations period is a question of fact for the jury.«19»

[5] Criminal Law - Limitation of Actions - Continuing Crimes - Completion of Crime - Question of Law or Fact. The time at which a continuing crime is completed is a question of fact for the jury.

Because the trial court not only posed no such question to the jury, but Petitioner was denied his jury instruction on the statute of limitations, Appendix document 16; doc. 17 p. 10 – RP objection.

Although Greathouse is as clearly off point in the Commissioner’s attempted application, once again, much of the dicta in citation of stare decisis supports Petitioner’s assertions and cites, taken in proper context of the actual facts of this case:

It is proven above that Petitioner was not informed of nature and causes of the charges of which he was convicted, that the information, by the court’s own definition in rulings, never charged Petitioner with what the prosecution and the Commissioner assert he was convicted of, that the essential elements rule was violated very deliberately, and the information constitutionally insufficient, mandating reversal:

The manner of committing a crime is an element and the defendant must be informed of this element in the information in order to prepare a proper defense. One cannot be tried for an uncharged offense.

Petitioner trusts that the above proofs, inclusive of but not limited to the fact the trial court ruled, and the prosecution clearly acknowledged the application of the statute of limitations to the charge of which he was convicted, will preclude further contention that the state can have it both ways, in direct contradiction of the charging documents, the court’s rulings, and all applicable law, because the Commissioner’s Ruling has also failed to address the Relation Back doctrine as applied, which mandates reversal.

The fact remains the trial court ruled and the prosecution directly stated, the statute of limitations had tolled in removing the element which had been conclusively proved at trial to violate that statute, which directly admits the original information was not filed timely as a matter of law. As such, Petitioner is entitled to the protection of the statute, in application to the absolute prohibition against amendment of the original complaint, both in all written amendments, and in the oral amendment by the court after the state had rested, (MDR Appendix pp. 88-90), MDR Section B(2), B(3), Decisions, p. 4; Section C ISSUES, C(4) through C(9), pp. 6-7 :

[3] Indictment and Information - Timeliness - Amendment. An indictment or information which charges a crime after the expiration of the statute of limitation is void and not subject to amendment.

The state has consistently argued this cannot apply due the time spanned by the information, but this is soundly refuted in Glover and Novotny, below:

[1] Indictment and Information - Timeliness – Amendment - Relation Back. An information that is not timely filed is not subject to amendment. Even if the amended version of the information would have been timely when the original faulty information was filed, there is nothing to which the amendment may "relate back."

"Not subject to amendment", yet Petitioner was denied pre-trial relief, which should have prevented every abuse suffered to date. The relation back doctrine as applied is crystal clear and inescapable in on-point application, because the original information was decidedly not timely filed. The original information filed March 2005 is as clearly, therefore, the information upon which Petitioner was convicted, because any and all amendment was prohibited, (or else the information/complaint resulting in the conviction is non-existent, also requiring reversal), and dismissal is mandated:

[2] Criminal Law - Limitation of Actions - Crime Committed Over Period of Time - Portion Beyond Limitation Period - Effect. When an information charges that a crime occurred between two dates, a portion of which period lies outside the statutory limitation period, and the jury returns a general verdict of guilty, the charge must be dismissed.

While Petitioner believes the prejudice shown in the subject prosecutorial scheme is obvious, (in being tried and convicted for an element the trial court directly ruled was not an element in refusing a Bill of Particulars and in being convicted upon an element never charged, by jury instruction, in deliberate deception and prosecutorial ambush), the Commissioner also erred in inferring (Ruling, p.3), that prejudice must be shown in the trial amendment, not only because that amendment was strictly prohibited by the relation back doctrine, but due the fact of timely and repeated challenges to that and all prior amendment:

"A challenge brought prior to trial or after the case in chief, but before the verdict, is decided under the more strict standard, and no showing of prejudice is required.

Pelkey, as cited by Petitioner, then, with Markle, remain applicable, requiring reversal:

[1] Indictment and Information - Amendment

Amending a criminal charge after the State has presented its case in chief violates the defendant's right under Const. art. 1, SS 22 (amend. 10) to be informed of the charge against him unless the new charge is a lesser included offense or a lesser degree of the original charge.

[4] Indictment and Information - Amendment - Timeliness - During Trial.

A midtrial amendment of an information to charge a crime that is neither a lesser included offense nor an offense of a lesser degree constitute reversible error under Const. art. 1, SS 22; no prejudice need be shown.

In direct context of the facts of the case, the Commissioner’s Ruling is also off-point error in citing Newman (Ruling p. 3), as authority that the trial court to did not commit further reversible error in failure to provide Petitioner with a written copy of the trial amendment, because the narrow criteria set forth in Newman were certainly violated by that amendment:

[2] Indictment and Information - Amendment - Copy to Defendant - Necessity.

The State's failure to provide a criminal defendant with a copy of an amended information does not constitute constitutional error if (sic. only if), the defendant was notified orally of the substance of the amendment, the amendment changed only the period during which the crime is alleged to have taken place, and the amendment did not prejudice the defendant. (emphasis added)

Clearly, an element charged, for which Petitioner was extensively and prejudicially tried, was removed, (substantive amendment), and that element contained no dates or reference to dates whatever, but only a description of an activity specifically charged, which the jury was given pictures of. This in no way "..changed only the time period during which the crime is alleged to have taken place", and was per se constitutionally prejudicial, pursuant to the above cited law.

Petitioner also provides his Revised Amended Brief of Appellant, Appendix document 18, for this Court’s review at sections IV(A)(2) and IV(e), with attached referenced appendices thereto, for further authorities, and proofs prior amendments of the complaints were patently unlawful, and the complaints insufficient, on other grounds, requiring dismissal with prejudice, Petitioner seeks to impress upon the Court that full review is required to recognize the enormity and vast quantity of reversible error underlying the tip of the iceberg proved in this pleading.

At page 5 of the Ruling, the Commissioner states in error, and contrary to any argument made by Petitioner, that the basis for the challenge to the search warrant is that "the wetlands biologist who executed it had no authority to do so". The issues, as stated at MDR Issues, C(15), and MDR Appendix, pp. 106-108, Section C(11); and Appendix document 18, Brief, at IV(P) and attached appendix thereto IV(P), are as follows:

The Search Warrant, (Appendix, document 20), issued to an unauthorized person, a county Wetlands Biologist, in violation of applicable procedural law:

CrRLJ 2.3(a) "A search warrant authorized by this rule may be issued by the court upon request of a peace officer or the prosecuting authority."

The Search Warrant issued in the Superior Court to this unauthorized person, who admitted in witness interview being deliberately taken there by the deputy prosecutor who intended to file the criminal action in the district court, and the Superior Court did not have jurisdiction to issue that search warrant intended to enforce a municipal ordinance on behalf of the municipal corporation Pierce County:

[7] The superior court has no common law authority to issue search warrants.

[8] A superior court does not have subject matter jurisdiction to issue warrants to enforce municipal ordinances. The exclusive jurisdiction for enforcing a municipal ordinance by means of a warrant is vested in municipal court by RCW 3.46.030 and RCW 35.20.030.

The above violations alone required the warrant to be quashed and its fruit suppressed, which will be shown to be the state’s case in chief on review; and now mandate reversal.

The exclusionary rule is applicable whenever the right of an individual to be free from

unreasonable governmental intrusions under Const. art. 1, SS 7 is unreasonably violated.

The Search Warrant Complaint used to establish probable cause, (Appendix document 21), clearly cites county municipal code, and is also perjured in the essential assertion, (p. 3 para. 3), that the wetlands biologist, hence Pierce County, had received no response to their initial inquiries, when not only did Petitioner respond timely in writing several times in 2003, but invoked his right to notice and hearing prior to any warrant issuing, (hence the exclusionary rule), was denied timely requested administrative hearing, was denied response to his Public Disclosure Request by advice of the same prosecutor, and created an administrative record which is of record in the trial court as Evidentiary Document One, but was denied all admission at trial. This same perjured affidavit was duplicated to establish probable cause for the criminal complaint, (Appendix, Document 13, Complaints), then later modified by D.P. Rose, after Petitioner proved it was perjured, with his first letter received 9/8/03 directly forwarded to Sissons.

On July 7, 2005, (Appendix Document 9, Docket), Petitioner brought a Motion To Suppress showing this issue met the Williams and Gunwall tests, and the Catch 22 ruling, from a court which refused to transfer the case to Superior Court as the proper jurisdiction, was as follows:

Judge Kenworthy: Thank you Mr. Hiatt. With regard to the search warrant, as you are aware, the state did go before a superior court... I understand you’re not in agreement with me, Mr. Hiatt, but the court is ruling that a decision by the superior court is not subject to revision by a decision, by a district court judge. If a search warrant was issued by the superior court of Pierce county, if you have a complaint with that search warrant, you better talk to the superior court of Pierce county. I can’t change it. No suppression will occur... Now, Mr. Hiatt, the court at this time doesn’t see any reason to suppress any evidence gathered as a result of the 12^th of January warrant.

Appendix, Document 14, RP 7/7/05.

On 7/14/05, Petitioner was denied relief on reconsideration, and denied findings of fact and conclusions of law from which to appeal, in violation of CrRLJ 3.6(b).

Only after the Sheriff contacted Deputy Prosecutor Rose to complain regarding his substitution of the Wetlands Biologist Sissons as "charging officer" on the Second Amended Complaint with a Sheriff’s Deputy who had accompanied Sissons in execution of the warrant, and after Petitioner had raised the validity of the warrant and its fruit again, did Rose stipulate that he would not use the fruit of that warrant at trial, but immediately after that stipulation, Rose suddenly "found" duplicative photographs which had been concealed on discovery for many months, (despite repeated motions to compel, which the court refused to rule on, and despite repeated denials of record that anything more existed). The court adamantly refused to hear anything more on the subject until trial, despite motions being brought, (Appendix, Document 9, Docket), and Petitioner then brought his Updated Motion In Limine, (Appendix, Document 22), documenting the origin, nature and specific identification of the secondary and derivative evidence and testimony used at trial, which motion was simply circumvented by allowing the named individuals to testify and shovel evidence into the record absent any ruling on the tainted testimony. This is also error of a constitutional magnitude requiring reversal, as it will be shown on review that the majority of the state’s case in chief presented and evidence entered through county agents, was prohibited secondary and derivative evidence fruit of that warrant.

The constitutional prohibitions against admitting evidence obtained in an unlawful search applies not only to evidence directly obtained, but also to derivative or secondary evidence.

To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only

last year the Court itself recognized that the purpose of the exclusionary rule "is to deter - to compel respect for the constitutional guaranty in the only effectively available way - by removing the incentive to disregard it."

At p. 5 of the Ruling, the Commissioner lists some of the evidence provided, including comments the judge made in imposing contempt sentencing, but not the due process violations imposed there or the subsequent decisions reversing most elements of that ruling for abuse of discretion. Davis, is cited by the Commissioner, in stating that "judicial rulings are almost never enough to show bias".

Petitioner submits the question should be, "What, specifically, are the exceptions to this rule?"

Petitioner urges the dispositive question upon this Court, "Was petitioner denied due process of law due judicial bias and prejudice, and does evidence exist proving abuse of discretion?" This is the threshold test set forth repeatedly by our high courts, and is met, both in subsequent rulings of the Superior Court, in the abuses of discretion set forth above, and in the record of trial and pretrial proceedings.

On 8/1/05, after a months long pattern of judicial acts and statements which Petitioner concluded would deny him any fair and impartial trial, Petitioner filed his Motion For Judge To Recuse And Disqualify Himself For Interest, Bias, and Prejudice, which was denied at hearing 10/13/05, RP Appendix Document 11, p. 31. On 11/3/05, Petitioner filed his Motion For Reconsideration on this issue, Appendix Document 23, which was denied hearing 2/3/06, Appendix, Document 12, RP 2/3/06, pp. 1-3. Again in August, 2006, Petitioner filed his Motion To Recuse And Transfer Case For Sentencing, with Memorandum of Law, Offer of Proofs, and Affidavit, Appendix, Documents 24 and 25, documenting trial and post-trial acts of Judge Kenworthy which per se violated the appearance of fairness doctrine. This Court is requested to review that Motion and Memorandum in full, as real evidence of bias, and specifically Exhibit One to that Memorandum, the Order of Superior Court Judge Larkin, stating Judge Kenworthy abused his discretion in ex parte imposition of a $100,000 bail for a misdemeanor conviction on 4/25/06 after having Petitioner arrested, changing that bail from his oral order of $100. Judge Larkin later reversed 3 of 5 of the contempt convictions Judge Kenworthy imposed, which were as clearly abuse of discretion. On the very day Judge Larkin ordered Petitioner released on reduced bail for Judge Kenworthy’s abuse of discretion, the district court Docket of 6/26/06, Appendix, Document 26, shows Judge Kenworthy unlawfully personally intervened in a covert attempt to thwart that Superior Court Order and prevent Petitioner’s release pending appeal, by adding yet another $100,000 bail, then pretended 8/16/06 it had been there the whole time, (Appendix document 28, RP 8/16/06). If that is not personal interest in the outcome, prejudice, and bias, what might qualify?

Above all, the appearance of fairness doctrine applies. Criminal defendants have a due process right to a fair trial by an impartial judge. Wash. Const. art. I, sec. 22; U.S. Const. amends. VI, XIV. Impartial means the absence of bias, either actual or apparent. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). 'The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial.' State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992) (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972).

At MPR Appendix pp. 53-56, the RP of sentencing for contempt 4/25/06 was provided, as a snapshot of the demeanor and highly prejudicial attitude of the judge toward Petitioner throughout trial proceedings. As documented in the provided Memorandum and Affidavit on the motion to recuse for sentencing, Judge Kenworthy did and said the following, in a few minutes time:

• Had Petitioner arrested absent required statutory hearing on contempt, contrary to law.
• Arbitrarily informed Petitioner he had no right of appeal. (Both due process violations)
• Made public, angry, untoward, and inappropriate personal insults implying Petitioner is less honorable than lawyers in his person and his honorable military service to his country, and by calling him a "complete fool", and very knowingly attacked his sincerely and firmly held Christian moral and religious beliefs.
• Expounded and exposed a personal belief system and philosophy in these remarks diametrically opposed to the worldview of our Founders and of this Petitioner, which system worships the creation rather than the Creator, in speaking of the past and future of the land in terms of the mists of time and characterizing the maintenance of property as "intentional deprivations", clearly making of the land itself, (in the mind of the court, given that "deprivation" is a legal term of art), a living entity, entitled to some protection of the court, (in contravention of our fundamental law), and in complete harmony with the worship of the Goddess Gaia or Earth, common to the environmentalist extremist movement.
• Refused to comply with the mandate of law in honoring the request for entry of findings of fact and conclusions of law on the contempt charges, required prior to any arrest.
• Directly threatened to impose punishments in excess of the authorization of the legislature or constitutions for a misdemeanor conviction at sentencing, as part of continuing pattern of direct participation by the court with the plaintiff in attempts to coerce the waiver of protected rights at the very legal roots of the instant controversy.
• Set bail at $100, for the misdemeanor conviction, Count I, (Appendix doc. 9, Docket, 4/25/06), then changed it ex parte to $100,000.

Several of the above acts are, by definition, not only constitutional due process deprivations, but manifest abuse of discretion. If these "rulings" are not the exception defined as "almost never" proving bias and personal interest in the outcome, pray tell what are they?

After that time, (MDR Appendix, pp. 70-84, RP sentencing 10/18/06), Judge Kenworthy declined to recuse for sentencing, imposed the maximum sentence upon Petitioner for a victimless misdemeanor, refused to address the other unauthorized punishments imposed by PALS, contradicted himself at the prosecutor’s request to impose yet another bail he knew Petitioner could not possibly afford, when he had just then agreed bail was already posted, imposed the sentence without any possible cause according to law, having Petitioner arrested again, refused to hear the Motion For Arrest Of Judgment, when the only reason it had not been filed timely was that Petitioner was arrested absent all due process requirements and held without bail or right of appeal, hence legally incapacitated by direct acts and deprivations of that court while the 5 day filing window expired. That record also shows, as noted in another section above, that Judge Kenworthy simply shouted at Petitioner and threw him in jail when he set about to prove conclusively on that record he had never been charged with "drain", as proved above.

Impartial means the absence of bias, either actual or apparent. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). Public confidence in the administration of justice requires the appearance of fairness just as much as actual fairness. State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885 (1999). A trial court's recusal decision is reviewed for an abuse of discretion. Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 840, 14 P.3d 877 (2000). Due process, the appearance of fairness, and Canon 3(D)(1) of the Code of Judicial Conduct require disqualification of a judge who is biased against a party or whose impartiality may be reasonably questioned. Wolfkill, 103 Wn. App. at 841 (citing State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996).

There are also a number of eyewitness affidavits of record, (Appendix, Document 27), showing that Judge Kenworthy acted in a biased and hostile manner before the jury at trial. Petitioner will show, if review is granted, that all the reversible error documented in this motion is the veritable tip of the iceberg of biased abuses of discretion, from disallowing every one of nearly 50 jury instructions submitted by Petitioner, to a "to convict" instruction on an element never charged;

[2] Trial - Instructions - Exceptions - Sufficiency. Counsel's comments which apprise the trial court of his position on a particular issue are sufficient to preserve the claim of error as to an instruction on that issue.

3] Criminal Law - Review - Harmless Error - Instruction.

An instructional error in a criminal prosecution is not harmless unless the appellate court can say within reasonable probabilities that the error in no way affected the outcome of the case.

From disallowing all witnesses for the defense, to prohibiting Petitioner from presenting his defenses or exculpatory evidence, to jury mismanagement, to knowingly permitting the prosecutor to run roughshod over the law absent all consequence in pre-trial proceedings, some of which prosecutorial misconduct was criminal activity, the evidence is of record.

[3] Courts - Judicial Discretion - Abuse - What Constitutes.

A discretionary ruling of a trial court which is not supported by the record is an abuse of discretion

Conclusion

Petitioner, if review is granted, can prove as conclusively that the Code which resulted in his conviction is unconstitutional as applied, and is unauthorized by statute as applied, with many other issues requiring reversal.

Due apparent limitations on the length of this Motion, Petitioner cannot possibly complete a record which will completely document all of his issues set forth in the MDR, but, understanding now that the Court apparently does not have the RALJ record for reference as asserted by the Superior Court deputy clerk, hopes he has provided some insight into the enormity of the reversible error in this matter which will result in honest inquiry in acceptance of full review, in this Court inquiring into the substance of things, to stop and prevent further miscarriage of justice.

Respectfully submitted June 26, in The Year of Our LORD Jesus Christ 2008.

Paul W. Hiatt, Petitioner, pro per, in forma pauperis, under protest

POB 122 Gig Harbor WA 98335 253-265-1928