QUESTION: Judicial v. Administrative

[Charlie Blue]

I'm appealing a decision that was made against me in the lower court. One of the point of my argument is that I stated for the record from the beginning that I never wanted an administrative hearing, I wanted the controversy handled in a judicial proceeding.

Do anyone know of any case law and other authorities in support of this position?

[Shuftin]

Originally Posted by Charlie Blue

I'm appealing a decision that was made against me in the lower court. One of the point of my argument is that I stated for the record from the beginning that I never wanted an administrative hearing, I wanted the controversy handled in a judicial proceeding.

Do anyone know of any case law and other authorities in support of this position?

There is a difference between a "Notice" and a "Motion".

To file a "Motion" or make a "Motion" is to require the Court to get off of their fat arses and take action. To simply state for the record is to "Notice" the Court your opinion. The Court probably said "Noted" to your statements and went about their business. You didn't ask them to take any action.

[Charlie Blue]

Originally Posted by Shuftin

There is a difference between a "Notice" and a "Motion".

To file a "Motion" or make a "Motion" is to require the Court to get off of their fat arses and take action. To simply state for the record is to "Notice" the Court your opinion. The Court probably said "Noted" to your statements and went about their business. You didn't ask them to take any action.

Thanks, that really brings alot of things to light.

[Chinese Panda]

Originally Posted by Charlie Blue

I'm appealing a decision that was made against me in the lower court. One of the point of my argument is that I stated for the record from the beginning that I never wanted an administrative hearing, I wanted the controversy handled in a judicial proceeding.

Do anyone know of any case law and other authorities in support of this position?

The question I would have is, did you REALLY get an Administrative Hearing? Did you see the Oath, Bond and Civil Commission of the person making the decision? How do you know anybody actually representing the United States, the State of, or whatever actually heard and ruled against you? It's too late now, but it's always a good idea to get the people saying the work for the government to prove it, on the record.

[Charlie Blue]

Originally Posted by Chinese Panda

The question I would have is, did you REALLY get an Administrative Hearing? Did you see the Oath, Bond and Civil Commission of the person making the decision? How do you know anybody actually representing the United States, the State of, or whatever actually heard and ruled against you? It's too late now, but it's always a good idea to get the people saying the work for the government to prove it, on the record.

Hey that's right!!!

That totally slipped my mind.

Tell me though, is it a chance I could still bring that up in the brief if the hearing officer wasn't really registered? It may be too late to really do anything about it, still, it could cast somewhat of a bad light on them just the same in the appellate court. What do you think?

[Chinese Panda]

Originally Posted by freebeme

Subject matter jurisdiction is never waived.

I will ask you this because the court will:

"How were you prejudiced by having an administrative versus a judicial proceeding?"

In other words "Do you know what the difference is?"

If you do not know the difference then how do you know that the proceeding was not judicial?

I agree that subject matter jurisdiction is supposedly never waiver, but what about the "de facto officer doctrine" in Ryder v. United States (1995) 515 U.S. 177, 180 [132 L.Ed.2d 136, 142]?

http://supreme.justia.com/us/515/177/case.html

"The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient. Norton v. Shelby County, 118 U. S. 425, 440 (1886). "The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office." 63A Am. Jur. 2d, Public Officers

2 The Appointments Clause reads in full:

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U. S. Const., Art. II, § 2, cl. 2.

181

and Employees §578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence."

This doctrine seems to imply you have to challenge him BEFORE the completion of his duty!

OK, so a question was asked...
"How were you prejudiced by having an administrative versus a judicial proceeding?" I'm only here to learn, please free to correct me.

My answer would be, he wasn't really prejudiced by having an administrative proceeding because all administrative proceedings are subject to judicial review, IF you ask for one.

Second question was...
"In other words "Do you know what the difference is?""

My answer would be, I think the only way you can truly be judged "judicially" is if the tribunal are made up of your peers (like in a normal court), or the decision makers commission has the seal of the United States, or the State or whatever, but NOT of an executive agency. Again, I welcome debate, it's not a pride thing with me, I just want to know the truth.