How to use your state's APA

[charlesa6]

Originally Posted by weishaupt1776

As in. I am here today on Special Appearance, for a Motion to Dismiss Hearing. As soon as the Judge denies your Motion to Dismiss the Special appearance is over. If you say another word related to the Case you have just given that court Jurisdiction. What you should do, at that point is file a cross complaint, With the Judge, Naming him and the citing officer for Misconduct, That stops all forward movment, Untill your cross Complaint is setteled.


The Judge then can dismiss your case, Or defend him self,

You file the cross civil complaint in the court room,*to the Judge, Just as soon as he / she*dismisses your motion to dismiss. Here are the grounds The LEO, had no jurisdiction to site you, "UNLESS you were being paid", The Judge dose not have the duty to decied your motion, That's the DAs Job. The judge at that Point is not neutral, and if the LEO had no Jurisdiction the court Has no Jurisdiction, You will or did not have An administratve hearing, Thats Lack of Due Process.


***** SO when the Judge says, Your motion is denied, You Object and hand the Bailiff your Complaint and tell him to give it to the Judge, Your filing it with the court. Then you take your other copys to the Court clerk and have them file stamped. Then have someone serve one copy to the DAs Office, You can name the da also, He did fail to protect your rights. and that is his job. You name them as Mr Jones, "Impersonating a Judge. same with the LEO and the DA. If you fail in that Court, Then you move to the Federal Court, Now you add, People that denied your Complaint.

Good info Weis. For sure you will get your remedy you seek for in federal court than Lower court.

[cz3000]

concerining these traffic matters -
what is the "MAP" ; the specific grounds for the SMJ challenge?

thanks

[Codee]

Originally Posted by Ice

hmmm... but isn't the "court" "Administrative" ???

Yes it is Ice. However the administrative tribunal only has power if it is being "controlled" by a Judicial court. A judicial court can only have jurisdiciton if the Administrative remedies have been exhausted.

What needs to happen is the review of the agency must be with the agency first and then reviewed by legislative tribunal while being overseen by court

[weishaupt1776]

Here's some homework for you: concurrent jurisdiction; primary
jurisdiction.
>
> Here's the logic. All traffic law is under the direct administrative
control of a state agency. Local jurisdictions are deputized to assist
the agency with enforcement of traffic law. As deputies, they are an
agent of the agency.
>
> The state agency is amenable to the state APA. The APA defines a
contested case as one where rights, duties and privileges are at
stake. The right to travel is a right recognized by law. The right to
property is a right recognized by law. The right to use of both in a
manner that does not infringe another's use of their property is a
right recognized by law.
>
> The APA mandates that a hearing be conducted in a contested case.
The APA mandates that a final administrative decision issue from that
hearing and that an appeal can normally be taken intra agency. Beyond
that, the APA spells out where and when an appeal from that decision
can be taken. It is never to a traffic court.
>
> There is no final agency decision in the traffic court file. There
is never any jurisdiction of the subject matter (traffic law) in the
traffic court UNLESS YOU FAIL TO OBJECT TO THE STANDING IN EQUITY THAT
WHICH HAS NO STANDING IN LAW. Even that jurisdictional defect can be
brought for the first time on appeal.

[heyday]

Originally Posted by TheBlackTruth

I've read Jim's thread. I've heard the argument made by others. After studying for the last few months, I don't agree.

Only a judicial officer has the power to issue a warrant for arrest or attain a criminal conviction. To bestow such powers on an administrative (executive branch) agency would be a clear violation of the Separation of Powers doctrine. The law for that argument simply doesn't add up.

-BT

Then see my thread United States District Courts Are Without ART. III Judicial Power and view the attached scanned copy of a letter from the OKLAHOMA SUPREME COURT explaining that [Oklahoma} courts are "legislative-statutory courts

[heyday]

Dear Abby,

What if:

You actually had an administrative hearing without your knowledge;

The cop made an adverse ruling against you when he found you guilty and issued the citation;

You have the option of accepting the ruling and paying the judgement;

and/or you can seek judicial review of the administrative ruling by contesting it in traffic court?

Jaded

[Ownmaster]

Originally Posted by heyday

Dear Abby,

What if:

You actually had an administrative hearing without your knowledge;

The cop made an adverse ruling against you when he found you guilty and issued the citation;

Not quite it. The cop made an administrative determination, without a hearing. It is recognized in a law review article that not every determination need be made by a prior "hearing".

However I think there might be an argument for determinations are subject to REVIEW by hearings.

I will see if I can find the law review article.

[heyday]

Originally Posted by Ownmaster

Not quite it. The cop made an administrative determination, without a hearing. It is recognized in a law review article that not every determination need be made by a prior "hearing".

However I think there might be an argument for determinations are subject to REVIEW by hearings.

I will see if I can find the law review article.

Great! That would definately need to be known if we are going to seek to use this process.

[weishaupt1776]

The basic thrust of the Motion in lawyer-speak would be: This action
is not 'ripe' for judicial consideration BECAUSE the pre-requisite
WRITTEN Agency Determination has not been made. This action is also
barred by the 'exhaustion of administrative remedies' doctrine.

[The logic error that I see is that, somehow [and I have never been
able to make the connection in California], the local police [SOME
police Departments really do have dedicated 'Traffic Control
Officers'] or Sheriff's Deputy acts as an agent [authorized or
unauthorized] for CHP/DMV, and so, CHP/DMV is obligated to conduct
an Administrative Hearing within CHP/DMV and is barred from
proceeding ['exhaustion of administrative remedies'
doctrine] 'judicially' unless/until CHP/DMV conducts that Adm. Hring.

Originally Posted by Royce from lawdiscuss

In that motion you find that the state of Texas specifically states in its Administrative Procedures Act (APA) that no judicial branch court can hear a contested case. The APA states specifically that a contested case is one in which rights, duties or privileges are at issue in an agency action.

A reading of the Transportation Code find that its administration (enforcement) is specifically within the control of the Director of the agency, which, again, is amenable to the APA. Since the right to travel and to use property in a way that does not interfere with another's same right is at issue, then the APA mandates an agency hearing.

I posted a Texas version, albeit my first one, here earlier, as I have already mentioned. I've used it three times. It has never lost. If it was PNJ, it would have lost every time. The later version got two orders, both said, "Dismissed in the interest of justice." Order was signed by a judge. The SMJ motion was the only document submitted.

Traffic tickets are not actually criminal. They are prosecuted under criminal law because of the bullying tactics of local jurisdictions. Traffic tickets are civil cases even though they are labelled "misdemeanor." They are civil because the "laws" affect rights, and the laws come under the administrative direction of an agency. Local administration is done under a deputization agreement which can be found or inferred in one of several ways.

Some agent decided that a citation should issue. If the citation applies to the administration of rights, duties or privileges, the location for the contested case is in agency law, and hence an agency admin law court, of which no judicial branch judge can be a member.
ALL provisions of the Texas Transportation Code are within the administrative control of the Texas Department of Public Safety. ALL of them, Doug. There is NO exception for traffic tickets. Traffic tickets are NOT criminal. They are only PROSECUTED under the criminal rules further perverting the use of the judiciary for the purpose of revenue generation.
This means there is an ENTITLEMENT to a non-judicial determination (final agency determination) before any judicial branch court has jurisdiction to hear the matter. Even after the final determination, only a Travis County, Texas, District Court has authority to review the final agency determination. That means all traffic courts lack subject matter jurisdiction.

There is no difference in any other state.

[weishaupt1776]

Lawyerdude abrasively critiques Royce's stance on the APA approach here
http://www.lawyerdude.netfirms.com/8964.html

Royce responds

Originally Posted by Royce E. Mitchell @ lawdiscuss

Once again, LD makes claims without any law to support the claim.

Originally Posted by Royce E. Mitchell @ lawdiscuss

I warned you about doing that LD. Pronouncements are not law. Law is law. I don't tolerate pronouncement in place of law from anyone, and that includes you.

It is a fact that, as I already told you, that tickets are only prosecuted criminally. Traffic enforcement is within the purview of the agency. The law was included in that. This can only be done if you are ignorant of your rights to determine the status of your property as an agency hearing does.

Therefore, you are now moderated.

In further response, that particular motion has won every time used, and I used it at least three times before creating the service of process motion. If I was wrong, I would have lost. You are the dumbass.

So, you are wrong. You generally are wrong because you think you are the smartest person here. You are not. In fact, you can't stand it that somebody is smarter than you are.

My filings win cases for me. Your filings do not win for your clients. Long winded, contorted and distorted filings don't win. Focused filings which bring the law forward win. My filings win; yours do not. You are the dumbass.

Further, my style fits the Texas style form as published by O'Connors, a recognized authority on both the codes sections and in form. Whether I choose to use all caps in a title is not relevant.

Moreover, you claim that tickets fall under the penal provisions. They do not. Traffic tickets fall under the Transportation Code in Texas. The Penal Code is a separate code and contains its own provisions. Once again you proved your ignorance.

Moreover, losers rely on case law to prevail when the black and white letter of the law says that you win. Case law is only valuable where it is on point, in a substantially similar case, in the same jurisdiction or another jurisdiction where the law and facts are substantially similar.

I told you before to look at the difference between concurrent and primary jurisdiction. You did not do so. I do not tolerate anyone on this list who is not working toward understanding. You have not upgraded your skills as a lawyer. That's why you didn't bring any law to the list. All you brought was "LD says." "LD says" is not law. It's not even good writing.

Finally, LD doesn't grasp that traffic/transportation codes were written to regulate traffic/transportation. LD doesn't grasp that traffic and transportation are commercial terms, and that commercial vehicles are the vehicles legislatures intended, and are empowered, to regulate. Therefore, before one's right to use property can be affected by agency action, one is entitled to an agency determination of rights and privileges. This is standard agency law taught in law school. LD doesn't understand agency law, and since somebody is smarter than he is, LD can only pronounce defect but cannot produce law to support his pronouncements.

LD's idiot response is dealt with. The term "including" did not exclude any proper purpose for an agency hearing. That is where he makes his mistake.

Where you have private property, such as your automobile, that is being subjected to agency action, the enforcement of a transportation code, you have the right to an agency determination because it is not against any criminal law to use your private property in any way you choose that does not interfere with another's same rights.

LD, you have lost sight of the Constitution and the rights to property envisioned by the Founding Fathers. The Founders did NOT envision a state or federal government with rulers capable of dictating your use of private property. It is time for you to go back to school and re-learn what this country is about.

There IS no criminal case and there's your error. There is only a presumed criminal case. Voluntary servitude is not against the law in this country. The ignorant, such as yourself, are voluntary servants to my servants.

Everyone should learn something from dealing with this guy. He uses the same type of tactics that attorneys you will face will use against you. You will often find out that they don't know as much law as you do about your case. How do they beat you? Because they intimidate, insinuate, and prevaricate.
Yes, Theo and others were on NDL at the same time I was. I produced copies of the dismissal orders. The SMJ motion was the only document filed in every case. It won without a hearing every time.

Why, when the traffic ticket is allegedly a criminal prosecution, as declared sans law by LD, would an administrative motion win? There can be no doubt that the prosecution is criminal. Nobody said it wasn't. I gave LD the clues to upgrade his skills. The clues are found in the legal terms "concurrent" and "primary" jurisdiction. Those terms relate to the jurisdictional nexus where two different jurisdictions have power to act.

In traffic law, if you fail to object, you are prosecuted criminally. The traffic court can and will convict and fine you. Nobody said this could not happen or would not happen. What has been written by me is that these cases succeed locally because attorneys make money from the system and because of that there is no impetus to bring the proper motion pertaining to subject matter jurisdiction.

LD is an attorney who makes money from these types of prosecutions. He has a system that is based on improper prosecutions by court clerks or LEOs. I have no quarrel with what he does. I do have a quarrel with his failure to upgrade his skills.

Why does the SMJ motion work? If one focuses in on court clerks and LEOs and criminal prosecutions, as does LD, you lose sight of the bigger issue. Where does a state get jurisdiction to use a code used to regulate transportation, legally defined as the movement of goods and services in commerce, to regulate and make criminal the use of private property?

Put yourself in the shoes of the creators of the several constitutions. Would you sign over your power over your property to your servants and grant them power to make criminal any lawful use you might make of it? Of course you would not. Neither did those who created the Constitutions.