Brown's suit against Ocean View is dismissed

The U.S. District Court for Delaware recently granted a motion to dismiss a lawsuit filed by Ocean View resident Wally Brown and six other plaintiffs against former Ocean View Mayor Gary Meredith and the Town of Ocean View. The court denied the plaintiffs’ motion to “transfer to cure want of jurisdiction,” which – if it had been granted – would have meant the case would have been heard in the Court of Chancery, and it directed the clerk of the court to close the case.

Brown filed the case – the central focus of which was on the town’s requirement for property owners inside town limits to connect to its then-new municipal water system – in March of last year. His original case was put before a District Court judge before being thrown out because of a “failure to dot my I’s and cross my T’s,” Brown explained last spring, before he re-filed the suit.

A key element in that first dismissal was Brown’s choice to file suit against the town council as an entity, rather than its individual members or the mayor — a choice that Brown rectified in his subsequent filing documents.

In the revised suit, Brown asked the court to subpoena members of the town council — specifically the mayor — to personally answer the complaint, which asserts that: “The elected members of the Ocean View Town Council, acting outside their responsibility, in a conspiratorial manner, and in contravention of the constitution, has violated their oath of office, and the rights of the (Constitutional) citizens of Ocean View…”

The filing alleged that the council members have “committed several illegal acts upon the people of Ocean View,” including fraud; denial of guaranteed Constitutional rights; confiscation of private property; right to contract (or not); color of law; conspiracy; attempt to sell into involuntary servitude and/or bondage; exercise of guaranteed constitutional right being made a crime; denial of use of private property; deliberately enacting ordinances that are contrary to guaranteed constitutional rights; threatening monetary punishment for failure to pay extortion, and disregarding their responsibility and the people’s sovereignty as the only proper constituted authority.

The order, put forth by Judge Joseph J. Farnan of the United States District Court, cited that the allegations were “strikingly similar” to that made in the case of Kerns v. Dukes, wherein Rehoboth Beach residents sued over having to connect to central sewer and pay all service charges and fees associated with “obligatory participation in the expanded sewer system.”

In that case, the District Court ruled that “as a challenge to a local taxation scheme, the suit ran afoul of federal comity principles and the Tax Injunction Act.”

The order also states that “realizing that this court lacks subject matter jurisdiction, plaintiffs request a transfer to the Court of the Chancery of the State of Delaware. However, lack of subject matter jurisdiction terminates a case originally filed in federal court,” citing Moravian Sch. Advisory Board v. Rawlins.

That essentially means that, because the federal courts had dismissed the case, the Court of Chancery of the State of Delaware didn’t even have to hear it – a finding Brown disagrees with and argues is itself unconstitutional. The order states that, if the court determines that it lacks subject-matter jurisdiction, the court must dismiss the action and is, in fact, “powerless to do anything but dismiss the action.”

Representatives of the Town of Ocean View are confident that the suit is now a moot point and said they are eager to get back to town business.

“The judge throwing it out demonstrates how frivolous Mr. Brown’s lawsuit was,” said Town Manager Conway Gregory. He added that the lawsuit has cost the town several thousand dollars in taxpayer money.

“We felt confident all along that Mr. Brown had no grounds for a lawsuit. Having to connect to the water system and pay the fees is not unconstitutional,” he said.

But things aren’t over quite that fast, according to Brown, a former police officer and avid Constitutional hobbyist. He has filed an affidavit subpoenaing Farnan’s credentials and has sent back three of the five pages of the decision, refusing them on grounds that the findings therein violated the constitution and that some were simply incorrect.

“There were several errors,” said Brown of the order granting Ocean View’s dismissal of the suit. “I couldn’t believe that a sitting judge would make so many mistakes.”

He went on to say that some of the cases cited in the order, including Kerns v. Dukes, were either incorrect or invalid, and that granting Ocean View’s motion to dismiss for lack of subject matter jurisdiction was “smoke and mirrors.”

“They can say it’s been dismissed. It’s not been dismissed,” Brown said. “The judge has to hear it. Legislation that’s unconstitutional is null and void. They are trying every trick and every method possible to get it thrown out.

“When someone says, ‘You have to do this,’ and I know I don’t, right away you are going to get an argument — I’m the voice,” said Brown. “I’m not the sole voice, I just happen to be one of the louder ones. And we’ll just keep appealing until we get to somebody that understands that the constitution matters.”