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Was Conservative Targeted By Department of
Revenue for Political Reasons?
April 2001
By Evelyn Reilly
A federal judge has refused to dismiss a suit by
Eric Bleicken who says he was targeted by the state's Department
of Revenue because of his conservative political stands for family
values and his opposition to special privileges for homosexuals.
According to Bleicken, former commissioner
Mitchel Adams is a homosexual activist.
Bleicken claims he was wrongly assessed
$44,889.28 in taxes in 1995 but was quickly straightening out the
erroneous assessment until he announced his candidacy for the
state senate. Three days later, the state filed liens for
$47,584.91 and seized his bank account and the savings account of
his ten-year-old son.
The defendants are former Commissioner Mitchel
Adams, his attorney, Peter Kortkemp, and an employee of the DOR in
Barnstable, Joseph Cestaro.
At a hearing last month at the new Federal
District Courthouse in Boston, Chief District Court Judge Joseph
L. Tauro refused to dismiss the case.
Assistant Attorney General, Anne S. Edwards,
acted as lawyer for the defendants although they have been sued as
individuals. She tried to have the case dismissed, saying no tax
laws were violated and he had gotten all his money back, so there
was no case.
The judge disagreed, however, saying the issue
was not about the tax laws or process but about the Constitution.
He said, "Suppose two agents came over to his house and beat
him up, but he got his money back. Are you saying he'd have no
case? He is claiming he was beaten up, in a different way."
Judge Tauro denied the Motion to Dismiss and
gave both sides until the end of May to depose each other in
preparation for a trial.
If it is found that that the defendants
deliberately violated Bleicken's rights, they would not be covered
by the state's immunity.
Candidate in 1995 and 2000
In 1995 Bleicken ran as a conservative third
party candidate for the State Senate against the liberal
Republican, Henri Rauschenbach for the Cape and Islands District.
In 2000 he was a Republican candidate for Congress against liberal
Democrat Congressman, Bill Delahunt.
He claims that three employees of the Department
of Revenue tied up his assets for three years, threatening his
business, forcing him to live hand-to-mouth and ruining his credit
and his two political campaigns.
According to his attorney, Greg Hession,
"They are accused of personally violating Mr. Bleicken's
civil rights, while 'acting under color of law,' meaning that they
improperly used their position as state actors, with the power of
the law on their side, to do so."
The complaint says the defendants "abused
their discretion and/or their power for the improper and illegal
ulterior purpose of frustrating the political candidacy of Eric
Bleicken."
Ordeal Began in 1995
Bleicken says his ordeal began in January of
1995 when the state sent a Notice of Intention to Assess. He
responded to the Notice that he was not a legal resident of the
state for the year in question, he had a matter before the U.S.
Supreme Court which would affect his income taxes, and he would
file tax forms as soon as a decision was rendered.
Two months later the state sent a Notice of
Assessment for $44,889.28 based on an erroneous federal Revenue
Agent's Report dated November 1991.
Bleicken was in the process of correcting this
when the Cape Cod Times announced his candidacy for the State
Senate. Three days later, Cestaro seized his checking account and
the savings account of his son.
Consequently, Bleicken claims his personal and
business life was devastated by having no bank accounts, a
foundering business, a destroyed credit history, the undermining
of his Senate campaign and "preclusion from professional
employment consistent with Mr. Bleicken's education and
background."
He wrote to the then treasurer of the state,
Joseph Malone, who forwarded his letter to the defendant Adams.
The letter Mr. Bleicken received in response justified Cestaro's
actions without addressing the evidence.
In June 1996, Louise Adler of the state's
Abatement Bureau determined that no taxes were owed for three of
the four years in question. The Bureau claimed he only owed $6679
(which he also denies). Despite the Bureau's determination of a
drastically reduced debt, the $48,000 lien was not lifted.
Bleicken appealed to the Appellate Tax Board and
met with defendants Comm. Adams and Atty. Kortkemp, who assured
him that this was a simple matter that could be cleared up
quickly. Bleicken was put at ease and then discussed his campaign
with them, leaving some campaign literature with them.
Bleicken says he was unaware at the time that
Comm. Adams, a Republican appointee, had a history of bashing
non-custodial fathers in the media. Bleicken's campaign literature
clearly expressed his advocacy of fathers' and children's rights,
and also specifically expressed his opposition to special
privileges for homosexuals.
The matter then dragged on for another two
years, including a demand for thousands of pages of documents,
half a dozen hearings and numerous continuances filed on behalf of
Comm. Adams by Kortkemp. Finally in April 1997, Kortkemp offered
to settle for $127 plus penalties and interest, but then refused
to settle when Bleicken wanted an understanding that the money
would be returned if he prevailed at trial.
Finally on February 3, 1998 the Appellate Tax
Board determined that Bleicken owed no tax. Yet the stigmatizing
$48,000 lien continued in force.
Five months later, when he was a candidate for
Congress, Bleicken sent out a press release alleging ulterior
political motives and sent copies to Treasurer Malone and Acting
Governor Paul Cellucci. Only then was the lien removed, but the
damage was done, says Bleicken.
All three defendants are accused of causing
Bleicken irreparable injury by placing and keeping stigmatizing
information in the public record, with violating his First
Amendment right by severely damaging his political candidacy,
violating his liberty interest under the Due Process Clause of the
Fourteenth Amendment, and violating his Fourth Amendment right to
Freedom from Illegal Search and Seizure.
Cestaro is charged with failing to remove the
liens and release the bank accounts after irrefutable evidence was
given to him that the DOR claims were erroneous and that Bleicken
was acting in good faith to resolve the dispute.
Comm. Adams is charged with willfully acting to
undermine Bleicken's candidacy for the State Senate after being
given information about his conservative position on the issues of
homosexuality and fathers' rights.
Atty. Kortkemp is accused of fraudulently concealing
material evidence and intentionally misrepresenting facts to the
Appellate Tax Board. The Complaint charges Kortkemp with prolonging
the process for more than three years, causing irreparable injury
through his bad faith actions and inactions.
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