The uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights and the vagueness of a statute. Smith v. Goguen, 415 U.S. 566 (1974); Keyishian v. Board of Regents, 385 U.S. 589 (1967); "A statute does not trump
the Constitution." People v. Ortiz, 32 Cal.App.4th 286 (1995); People v. Reber, 177 Cal.App.3d 523 (1986).
In quoting 2 Am Jur 2d, § 282, pg. 250 – Statute as source; general limitations: Administrative agencies are tribunals of limited jurisdiction, and nothing is presumed in favor of an agency’s jurisdiction. As a general rule, agencies have only such adjudicatory
jurisdiction as is conferred on them by statute. Their jurisdiction is dependent entirely upon the validity and the terms of the statute reposing power in them, and they cannot confer jurisdiction on themselves. (Emphasis added).
“A statute adopted from another state or country will be presumed to have been adopted with the construction placed upon it by the courts of that state or country before its adoption [e.g. 18 U.S.C. 31(6)]. The rule is applied by the federal courts in
construing a state statute adopted from another state." 59 Corpus Juris, 1065, § 627. See: The FullFaith and CreditClause, U.S. Const. Art. IV, Sec. 1. See also: shepardize citations.
Any statutes which violate the plain and obvious principles of a common right and common reason are null and void. Bennett v. Boggs, Baldw. 60 (1830), 3
F.Cas. 221, No. 1319.
“A statute adopted from another state or country will be presumed to have been adopted with the construction placed upon it by the courts of that state or country before its adoption [e.g. 18 U.S.C. 31(6)]. The rule is applied by the federal courts in construing a state statute
adopted from another state." 59 Corpus Juris, 1065, § 627. See: The Full Faith and Credit Clause, U.S. Const. Art. IV, Sec. 1. See also: shepardize citations.
The plain meaning of a ‘statute’ must “strictly conform” to be consistent with the legislative intent . As a rule, "[a] definition which declares what a term means' . . . exclude any meaning that is not stated." 2A C. Sands, Statutes & Statutory Construction sec. 47.07 (4th ed. Supp.
1978). "It is axiomatic the statutory definition of the term excludes unstated meanings of that term", Colautti v. Franklin, 439 U.S. 379 (1979).
A state statute cannot be considered inconsistent with federal law merely because the statute causes plaintiff to lose in litigation. Burks v. Lasker, 441 U.S. 471, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979),
We are not the guardians of the rights of the people of a state unless they are secured by some constitutional provision which comes within our judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fails, the
people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The supreme court have decided, (Satterlee v. Mathewson, 2 Pet. [27 U. S.] 412–414,) that a state law, though an unwise and unjust exercise of legislative power—retrospective in its operation—passed in the exercise of a
judicial function—creating a contract between the parties to a pending suit where none existed previous to the law—declaring a contract in existence prior to the law, founded on an immoral or illegal consideration, to be valid and binding on the parties—or divesting rights which were previously vested in one of the parties—is neither ex post facto, a law impairing the obligation of contracts, or repugnant to the constitution of the United
States.
the legislature cannot prevent the exercise of that common right. Leaming & S. 390.
"A statute does not trump the Constitution." People v. Ortiz, (1995) 32 Cal.App.4th at p. 292, fn. 2 Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163
In quoting 2 Am Jur 2d, § 282, pg. 250 – Statute as source; general limitations: Administrative agencies are tribunals of limited jurisdiction, and nothing is presumed in favor of an agency’s jurisdiction. As a general rule, agencies have only such adjudicatory
jurisdiction as is conferred on them by statute. Their jurisdiction is dependent entirely upon the validity and the terms of the statute reposing power in them, and they cannot confer jurisdiction on themselves. (Emphasis added).
A statutory privilege cannot override a defendant's constitutional right. People v. Reber, 177 Cal.App.3d 523 (1986); Vela v. Superior Ct, 208 Cal.App.3d. 141 [255 Cal.Rptr. 921], however, "the judiciary has a solemn obligation to insure that the constitutional right of an accused to a fair trial is realized. If that right would be
thwarted by enforcement of a statute, the state...must yield." Vela v. Superior Ct., 208 Cal.App.3d. 141 [255 Cal.Rptr. 921]
Administrative Law: Congressional Modification of Regulatory Scheme
Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions - it does not, one might say, hide elephants in mouse holes.
Gonzalez v. Oregon, Case No. 04-623 (S.Ct. 1/17/06)
Administrative Law: When Regulation Parrots the Statute
The existence of a parroting regulation does not change the fact that the question here is not the
meaning of the regulation, but the meaning of the statute. An agency does not acquire special
authority to interpret its own words when, instead of using its expertise and experience to
formulate a regulation, it has elected merely to paraphrase the statutory language.
Gonzalez v. Oregon, Case No. 04-623 (S.Ct. 1/17/06)
Administrative Law: Chevron Deference
An interpretation of an ambiguous statute may also receive substantial deference. Deference in
Accord with Chevron, however, is warranted only when it appears that Congress delegated
authority to the agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that authority.
Gonzalez v. Oregon, Case No. 04-623 (S.Ct. 1/17/06)
Administrative Law: Agency’s Implementation of a Statute
When a statute is silent or ambiguous with respect to the specific issue, the question for the court
is whether the agency’s answer is based on a permissible construction of the statute. A permissible
construction of a statute is a reasonable one, and an agency’s interpretation of an unclear statute
is reasonable so long as it ins not arbitrary, capricious, or clearly contrary to the law.
Cook v. Wiley, 13 FLW Fed C611 (11th Cir. 4/14/00)
the proper venue must have been set in a judicial court, not administrative pursuant to improper venue - FRCP 12(b)(3).
ADMINISTRATIVE PROCEDURES LIMITS
challenging the underlying facts pursuant to the matter present;
the Internal Revenue Service and especially its’ SUBJECT MATTER JURISDICTION.
The Internal Revenue Service is an Agency (26 CFR § 601.101(a)).
Quoting 2 Am Jur 2d, § 281, page 249 and 250 regarding Subject Matter Jurisdiction:
If an administrative agency lacks the statutory power to consider a matter, then the agency is without subject matter jurisdiction. Subject matter jurisdiction goes to competence of a body to resolve a particular dispute. It is a concept that is applicable equally to courts and administrative agencies. (Emphasis added) Jurisdiction is
essential to give validity in the DERTERMINATIONS of administrative agencies; without jurisdiction, their acts are VOID and open to COLLATERIAL ATTACK. (Emphasis added)
Quoting 2 Am Jur 2d, § 282, page 250 – Statute as source; general limitations:
Administrative agencies are tribunals of LIMITED jurisdiction, and nothing is PRESUMED IN FAVOR OF AN AGENCY’S JURISDICTION. As a general rule, agencies have only such adjudicatory JURISDICTION as is conferred on them by statute. Their jurisdiction is dependent entirely upon the validity and the terms of the statute reposing power in them,
and they CANNOT confer jurisdiction on themselves. (Emphasis added)
Quoting 2 Am Jur 2d, § 286, page 252 – Loss or termination of jurisdiction:
An administrative agency’s jurisdiction, although once obtained, may be lost if the basic jurisdictional facts provided in a statute and
assumed or tentatively determined to exist turn out, on fuller inquiry, to be unsupported. (Emphasis added)
Quoting 2 Am Jur 2d, § 297, page 261 – Dismissal and discontinuance:
If jurisdiction, although once obtained, has been lost, administrative proceedings must be dismissed. (Emphasis added)
Quoting 2 Am Jur 2d, 298, page 263 – Generally
An administrative agency MUST insure that it has jurisdiction over each case before adjudicating the merits;
a potential jurisdictional defect may be raised by the court or the agency, susa sponte, or by any party, at any stage in the proceeding, and,
once apparent, MUST be adjudicated. …
No action of the parties can confer SUBJECT MATTER JURISDICTION on an administrative tribunal. (Emphasis added)
"'To be valid, administrative action must be within the scope of authority conferred by the enabling statutes. . . .' . . . '
If the court determines that a challenged administrative action was not authorized by or is inconsistent with acts of the Legislature,
that action is void.'" (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 131-132.) Hamilton v. Gourley (2002), 103 Cal.App.4th 351 [No. C038751. Third Dist. Oct. 31, 2002.]
Please explain why failure to comply with this letter of inquiry does not rise to a level of violation of 26 U.S.C. § 7214(a)(1)(2)&(7).
(8) We have held that a party appearing before an administrative agency is entitled to due process in the proceedings.
See Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982).
A fair trial by a fair tribunal is a basic requirement of due process. This rule applies to administrative agencies as well as to courts.
See Sexton v. Ark. Supreme Ct. Comm. on Profess. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989);
See also Arkansas Elec. Energy Consumers v. Ark. Pub. Serv. Comm'n, 35 Ark. App. 47, 813 S.W.2d 263 (1991).
Administrative agency adjudications are also subject to the “appearance of bias” standard applicable to judges.
Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991).
As the underlying philosophy of the Administrative Procedures Act is that fact finding bodies should not only be fair but appear to be fair,
it follows that an officer or board member is disqualified at any time there may be reasonable suspicion of unfairness.
Ark. Racing Comm’n v. Emprise Corp., 254 Ark. 975, 497 S.W.2d 34 (1973).
Please keep this correspondence with your records. You may want to refer to it if you should have any additional questions.
See Privacy Notice 609 page 2.
• It is well settled in administrative law that: "It is the accepted rule, not only in state courts, but, of the federal courts as well, that when a judge is enforcing administrative law they are described as mere 'extensions of the administrative agency for superior reviewing purpose’s a ministerial clerk for an agency..." 30 Cal. 596; 167 Cal 762.
• "judges who become involved in enforcement of mere statutes (civil or criminal in nature and otherwise), act as mere "clerks" of the involved agency" K.C. Davis., ADMIN. LAW, Ch. 1 (CTP. West's 1965 Ed.)
• "...their supposed "courts" becoming thus a court of "limited jurisdiction" as a mere extension of the involved agency for mere superior reviewing purposes." K.C. Davis, ADMIN. LAW., P. 95, (CTP, 6 Ed. West's 1977) FRC v. G.E., 281 U.S. 464; Keller v P.E., 261 U.S. 428.
All "agencies" are mandated to publish All regulations in the "Federal Register" under 5 U.S.C. § 552(a)(1) [below] in the Administrative Procedures Act that are "substantive rules" plus other policies, interpretative, agencies management, etc.
The only regulations that have the "force and effect of law" (For definition - See Production Tool Corporation v. Employment and Training Administrative, U.S. Dept. of Labor, 688 F.2d 1161 (7th Cir. 1982) citing Chrysler v. Brown, 441 U.S. 281 (1979) Supreme Court of the
United States) are "substantive regulations", which are MANDATED to have two PRONGS:
(1) In the "Proposed Regulation" published in the Federal Register it is must be in compliance with 5 U.S.C. § 553 stating same, i.e. that We the People are requested to make comments (5 U.S.C. § 553(b)) [below] and these comments will be addressed in the "Final
Rule."
(2) When the "Final Rule" is published in the Federal Register the comments will be addressed and the "effective date" of the "substantive regulations" must be AFTER 30 days of being published in the Federal Register. The only exception is for good cause shown
by the agency and this must be published in the Federal Register and almost always fails as when is there an "emergency" so dire that the 30 day waiting period should be precluded. During this 30 day timeframe we must get adjust our lives to the new "Final Rules" and have also the time to file in court to stop same. The "agencies" are not policed by anyone, with the exception that these regulations after being published in the Federal Register wait for Congress for a 60 days to be READ by
Congress [hoo-haa, do you really think Congress reads these 100 of thousands of pages of regulations published yearly] (5 U.S.C. chapter 8 [800 sections]; and, then after 60 days they CAN'T be stopped - after that they are beyond reach by anyone.
"'To be valid, administrative action must be within the scope of authority conferred by the enabling statutes. . . .' . . . 'If the court determines that a challenged administrative action was not authorized by or is inconsistent with acts of the Legislature, that action is void.'" (US Ecology, Inc. v. State
of California (2001) 92 Cal.App.4th 113, 131-132.) Hamilton v. Gourley (2002), 103 Cal.App.4th 351
[No. C038751. Third Dist. Oct. 31, 2002.]
Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974):“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.
Production Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor, 688 F.2d 1161 (7th Cir. 1982) - Great explanation of regulations.
Force and effect of law is defined in Production Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor, 688 F.2d 1161(7th Cir. 1982) is probably the best summary case of interpretative regulations and
substantive regulations relying of course on Chrysler v. Brown, 441 U.S. 281 (1979).
Excerpt of Production Tool Corp,
The distinction between legislative and interpretive rules is generally drawn to determine one of two questions: 1) whether the APA's procedural requirements for rule making apply, see, e.g., Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972), or 2) whether the rule has the “force and effect of law,” see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1704, 60 L.Ed.2d 208 (1979). Legislative rules are said to have the “force and effect of law”-i.e., they are as binding on the courts as any statute enacted by Congress. Chrysler, 441 U.S. at 295, 99 S.Ct. at 1714. “A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner.” Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). Legislative rules are valid so long as they are reasonably related to the purposes of the enabling legislation, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973), promulgated in compliance with statutory procedures, Chrysler, 441 U.S. at 303, 99 S.Ct. at
1718, and not arbitrary or capricious, Batterton, 432 U.S. at 426, 97 S.Ct. at 2406. Interpretive rules, in contrast, have only persuasive force. Such rules are entitled to varying degrees of deference or weight, but a
reviewing court ordinarily is free to substitute its own view of the relevant statute. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). Section 4 of
the Administrative Procedure Act (APA), 5 U.S.C. s 553, subjects proposed rule making to certain procedures designed to afford interested parties notice and an opportunity to comment. “Interpretive
rules, general statements of policy or rules of agency organization,*1166 procedure or practice” are exempted from those requirements.
Professor Davis has articulated the test for categorizing a rule as legislative or interpretive as follows:
(R)ules are legislative when the agency is exercising delegated power
to make law through rules, and rules are interpretative when the agency is not exercising such delegated power in issuing them. When an agency has no granted power to make law through rules, the rules it issues are necessarily interpretative; when an agency has such granted power, the rules are interpretative unless it intends to exercise the granted
power. The statutory grant of power may be specific and clear, or it may be broad, general, vague, and uncertain.
