How to use your state's APA

[TheBlackTruth]

<font color=darkblue face=verdana>For the last few weeks, I've been researching and discussing the ramifications of the Administrative Procedures Act as codified by our states' legislatures. From that research and those discussions, i've come up with the following 'flow' for an argument to dismiss a traffic case using California's Administrative Procedures Act as the foundation. You'll see it below. One thing that is good about this, is that, in theory, with some modifcation, this should be effective in any state-agency-regulated case.

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1. 
   
   <li >The accused is a Citizen of California endowed with certain unalienable rights protected by the state constitution and the federal constitution, including, but not limited to the right to travel freely and to not be deprived of liberty or property without due process of law. See California Constitution Art. 1, Sec. 7.
   
   <li >The accused is being charged with allegedly violating the following California Vehicle Code(s) (CVC):
   
   1. 
      
      <li >CVCXXXX, commonly known as driving while ethnic.
      
      <li >CVCXXXX, commonly known as driving while poorly dressed.
      
   
   <li >The Vehicle Code is to be enforced by The California Highway Patrol. SeeCVC §2400.
   
   <li >The "commissioner" is the Commissioner of the California Highway Patrol. See CVC §265.
   
   
   
   <li >The California Highway Patrol, through the commissioner, is required to act in accordance to the Administrative Procedures Act, commencing with Section 11370 of the California Government Code (CGC). See CVC §2402.
   
   <li >The California Highway Patrol is an “Agency” within the meaning of CGC §11405.30.
   
   <li >Every contested case is required to be heard in an administrative proceeding. See
   
   CGC §11512.
   
   <li >An agency evidentiary hearing for determination of facts is required for formulation and issuance of the decision in a contested case. See
   
   CGC §§11410.10, 11410.60(b)(2), 11512.
   
   
   
   <li >The accused protected right to due process of law through an agency determination of rights, duties and privileges is being denied by the failure of the State to comply with the mandate of CGC §11410.10.
   
   <li >The only provision for judicial review is conditioned upon a decision or determination pursuant to an agency adjudicative proceeding. See CGC §11425.50(b).
   
   <li >The State has not exhausted its administrative remedy because there has been no agency hearing or determination pursuant to the Administrative Procedures Act, commencing with Section 11370 of the California Government Code.
   
   <li >There is no final agency determination.
   
   <li >Where there is no agency determination, the Court has no subject-matter jurisdiction.
2. Without subject matter jurisdiction, this court has no choice but to dismiss.
   

[/color]

[Drob]

Right on! The truth is like the sun rise, "open your eyes if you chose to but the light will shine whether you see it or not".

[Ice]

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

[TheBlackTruth]

<font color=darkblue face=verdana>No, sir.



The court is Judicial which is why they don't have subject-matter jurisdiction over a matter that requires an administrative final determination before judicial review is allowed.[/color]

[Ice]

BT,



Are you sure the court is "judicial" ... according to Jim not one of us has been in a real court ... they are Adminstrative agency's.



Have you seen that thread ?



Ice

[weishaupt1776]

I have the experance in the courts. I have tried every thing that any one has com up with.


*I ahve had the Time, in the last 35 years.


*I know that if you the Accused go into the court, Saying the Court has no jurisdiction, Then in the Same breath , Or paper start talking about the facts of the csae, "Before you even inter your motion to Diamiss, You will lose the case right there and them. Been there done that. I have won cases where, I did not even file a paper. All variable, Not the first time did I go in to, if I had a Drivers License or not. Queation before the Court was why was I there? Because the Officer had no Right to stop me in the First place. The Officer did have Jurisdiction. The Court Can't have Jurisdicrion, These Matters have to be settled first. All you have to do is challange the Officer and the Courts Jurisdiction. Shut youir mouth. and wait for the bad news to sink in. If the Judge ask you a question, You OBJECT for the record, any other answer will Give the Court Juurisdiction. And that, Kink of underhanded Move, is not Public knowledge'


LAW or RULE, that's something you learn the Hard way. I filed 21 motion+ in the Vevtura Corut, each and ever one failed, Did some one come to me and Say, *Charles, This is the to do that/ "NO they did not", I had to get on the Computer, ask every one on this and other forms, What they thought, I would take the best of the lot Make another. that it back to the Judge, for a Stress test. Jim Jenkins wrote about tha APA. I read his stuff and wrote the Skateboard Motion to Dismiss.


*It was 9 lines on one sheet of paper.


** All it said, Was, I have been deprived of due process of LAW, I have had no Hearing at the DMV, as dictated By the APA, There is No Final Determination, This Court has No Jurisdiction. There was Not one Number in it. NO CVC. No APA code,


*Royce and the others on these Forms Know what I did, You are not going to find what*I tell you, In the LAW, RULES or Code. Sorry, They hold those kind of things close to the Chest, Other wise,*they would Expose the Fraud, and end the Money flow.


************************** Charles Sprinkle


*

[TheBlackTruth]

Originally Posted by Ice

BT,



Are you sure the court is "judicial" ... according to Jim not one of us has been in a real court ... they are Adminstrative agency's.



Have you seen that thread ?



Ice

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

[TheBlackTruth]

Originally Posted by Ice

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

No. An administrative court can only issue determinations. They cannot asses money penalties or the like. The forum is definitely judicial. This is why this argument is effective. It clearly sets forth the argument that we SHOULD be in an administrative court. That is why the argument is effective.

"In some cases, although exhaustion is not required, the doctrine of "primary jurisdiction" of administrative agencies should be invoked to require resort to an administrative agency to resolve issues within its particular area of expertise. Exhaustion and primary jurisdiction are two closely related concepts. Both are essentially doctrines of comity between courts and agencies. They are two sides of the timing coin: Each determines whether an action may be brought in a court or whether an agency proceeding, or further agency proceeding, is necessary. "Exhaustion" applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. "Primary jurisdiction," on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." (emphasis added)
Jonathan Neil & Associates, Inc. v. Jones, 94 P.3d 1055, 33 Cal.4th 917, 16 Cal.Rptr.3d 849 (Supreme Court of California 08/05/2004)

"Where an administrative remedy is provided by statute, relief must be sought from the administrative body, and this remedy must be exhausted before the courts will act. (Abelleira v. District Court of Appeal, 17 Cal. 2d 280, 292 [109 P.2d 942, 132 A.L.R. 715].) Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts. (Abelleira v. District Court of Appeal, supra, p. 293; United States v. Superior Court, 19 Cal. 2d 189, 194 [120 P.2d 26].) The doctrine of exhaustion of administrative remedies applies where a statute provides an administrative remedy, even though the terms of the statute do not make the exhaustion of the remedy a condition of the right to resort to the courts. (First Nat. Bank v. Board of County Comrs., 264 U.S. 450 [44 S.Ct. 385, 68 L.Ed. 784, 788-789].) The doctrine, whenever applicable, requires not merely the initiation of prescribed administrative procedures; it requires pursuing them to their appropriate conclusion and awaiting their final outcome before seeking judicial intervention. [Citing many cases.]" (emphasis added)
Cardoso v. Department of Alcoholic Beverage Control, 162 Cal. App. 2d 277, 327 P.2d 591 (Cal.App.Dist.3 07/21/1958)

[weishaupt1776]

[6] It is settled principle that administrative agencies have only such powers as have been conferred on them, expressly or by implication, by constitution or statute. (United States Fid. & Guar. Co. v. Superior Court (1931) 214 Cal. 468, 471 [6 P.2d 243]; Pacific Employers Ins. Co. v. French (1931) 212 Cal. 139, 141-142 [298 P. 23]; Grigsby v. King (1927) 202 Cal. 299, 304 [260 P. 789]; Garvin v. Chambers (1924) 195 Cal. 212, 220- 223 [232 P. 696]; Motor Transit Co. v. Railroad Com. (1922) 189 Cal. 573, 577 [209 P. 586]; see Pacific Tel. & Tel. Co. v. Public Utilities Com. (1950) 34 Cal.2d 822 [215 [71 Cal.2d 104] P.2d 441]; State Comp. Ins. Fund v. Industrial Acc. Com. (1942) 20 Cal.2d 264, 266 [125 P.2d 42]; Allen v. McKinley (1941) 18 Cal.2d 697, 705 [117 P.2d 342]; 1 Am.Jur.2d Administrative Law, § 70, p. 866.) An administrative agency, therefore, must act within the powers conferred upon it by law and may not validly act in excess of such powers. (See cases cited immediately above; see 2 Am.Jur.2d, Administrative Law, § 188, pp. 21-22.) [3b] In accordance with these principles, it has been held in this state, in matters pertaining to civil service and in other contexts, that when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void. (See Aylward v. State Board of Chiropractic Examiners (1948) 31 Cal.2d 833, 839 [192 P.2d 929]; Patten v. California State Personnel Board (1951) 106 Cal.App.2d 168, 172-175 [234 P.2d 987]; Pinion v. State Personnel Board (1938) 29 Cal.App.2d 314, 319 [84 P.2d 185]; Campbell v. City of Los Angeles (1941) 47 Cal.App.2d 310, 313 [117 P.2d 901].)


Ferdig v. State Personnel Bd. , 71 Cal.2d 96
http://login.findlaw.com/scripts/cal...l2d/71/96.html


*


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[ Footnote 1 ] The disregard of subpoenas issued by some agencies is punishable by fine and imprisonment in a criminal proceeding, but apparently no federal agency has ever been given the power to punish disobedience as a contempt of its authority. (See Final Report of the Attorney General's Committee on Administrative Procedure, Appendix K.) The common method of enforcing subpoenas is to punish disregard of the subpoena as contempt of the issuing body. It has been held in some states that the power to punish for contempt cannot be conferred upon a body of a non-judicial character. See Langenberg v. Decker, 131 Ind. 471, 31 N.E. 190, 16 L.R.A. 108; In re Whitcomb, 120 Mass. 118, 21 Am.Rep. 502. Contra, In re Hayes, 200 N.C. 133, 156 S.E. 791, 73 A.L.R. 1179. Compare statements in Interstate Commerce Comm. v. Brimson, 154 U.S. 447 , at pages 485 and 489, 14 S.Ct. 1125, 1136, 1137.


ENDICOTT JOHNSON CORPORATION v. PERKINS, 317 U.S. 501 (1943)

[weishaupt1776]

Some times the simple way is the best way. KIS.


You*where "denied" an unalienable right,*"due process of law".


The process you where denied was the administrative process.


The judicial court responsible for 'judicial review' of an agencies actions, lacked subject matter jurisdiction. (once challenged must be PROVEN)


*


Catch 22....


Find the appeal rule for your claim.


The document that proves the judicial court responsible for 'judicial review'*lacked SMJ is the*agencies administrative 'final determination', w/o it the judicial court can not prove that it had SMJ of the*claim before it.


*


The judicial court error in litigating this claim, an*error that violated your unalienable right to due process of law.