Paul Douglas Weldon
Box 9094
Fresno CA 93790
Pro Se
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Superior Court of California, Fresno Central Division.
1100 Van Ness Avenue, Fresno, CA 93724-0002. Phone. Misdemeanor: (559) 488-3142
Courthouse Hours: 8 AM – 5 PM. Clerk’s Office Hours: 8 AM – 3 PM
http://www.fresnosuperiorcourt.org/
Damare Theriot and B. Phelan, dba (under false color of law) The People of California
v
Paul Douglas Weldon
Case T 05 906202 7
DA File: 2005 M 21 178
Agency Report #05-45844
Agency: Fresno City Police
Document #7196 Version 0.8
Challenge to Jurisdiction citing California Administrative Procedures Act.
Waiver of Speedy Trial Rights.
Memorandum of Law.
Proof of Service
Venue:
Time: 1:30 pm
Date: Thursday January 12, 2006
Place: Division 62 or as directed.
“We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.” - Magna Charta
Notice of Motion
To the prosecutor and court. At the venue designated in the caption above or at such venue as the court shall designate I will seek the relief designated in this motion.
Signed _____________________________ Paul Douglas Weldon. Wednesday, November 30, 2005
Table of Contents
Table of Constitutional Clauses cited herein:
Cases pertaining to administrative law:
Table of Constitutional Clauses cited herein:
Article 4 section II of the U.S. Constitution says in its entirety: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. 1
United States v. Sing Tuck (1904) "It lies within the power of the administrative agency to
determine in the first instance, and before judicial relief may be obtained, whether a given
controversy falls within the statutory grant of jurisdiction.” - United States v. Sing Tuck (1904)
http://laws.findlaw.com/us/194/161.html 1 , 194 U.S. 161; 24 S.Ct. 621, 48 L.Ed. 917;
2
Abelleira v. District Court of Appeal 17 Cal. 2d 280, 292. 109 P.2d 942, 132 American Law
Reports 715.
1
Aircraft & D. Equipment Corp. v. Hirsch, http://laws.findlaw.com/us/331/752.html 1 331 U.S. 752, 767; 67 S.Ct.1493; 91 L.Ed. 1796, 1806. 2
Cardoso v. Department of Alcoholic Beverage Control Cal. App. Dist.3 07/21/1958. 162 Cal.
App. 2d 277, 327 P.2d 591. 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. “
1
Fahey v. Mallonee (1947) http://laws.findlaw.com/us/332/245.html 1 332 U.S. 245; 91 L.Ed. 2030; 67 S.Ct. 1552. The importance of giving the administrative agency the first opportunity to determine the extent of its jurisdiction and to decide in a final way matters falling therein is discussed herein. 2
First Nat. Bank v. Board of County Comrs.,264 U.S. 450; 44 S.Ct. 385, 68 L.Ed. 784, 788-789. 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. 1
Home Loan Bank Board v. Mallonee, (9 Cir.) 196 F.2d 336; The doctrine of exhaustion of administrative remedy, 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. 1
Jonathan Neil & Associates, Inc. v. Jones, 94 P.3d 1055, 33 Cal.4th 917, 16 Cal.Rptr.3d
849. Supreme Court of California 5 Aug 2004.
1
Red River Broadcasting Co. v. Federal C. Com. (Court of Appeal, DC circuit), 98 F.2d 282,
287, cert. den. 305 U.S. 625; 59 S.Ct. 86; 83 L.Ed. 400.
1
Rhode Island v Massachusetts (1838) 37 U.S. 657 http://www.lawyerdude.netfirms.com/rhode.html 1 The issue of jurisdiction must be resolved before the case can go forward. 2
United States v. Superior Court 19 Cal. 2d 189, 194; Volume120 Pacific Reporter 2nd Series page 26. Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts. 1
California Government Code §11405.30. 1
I hereby waive my right to a speedy trial so that my Motion to Dismiss may be heard.
I received a ticket for not having my papers in order.
1. I am a human 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 15 Constitution Art. 1, Sec. 7
2. This allegation creates a contested case between me and the charging Agency because the allegations involve rights to property, liberty and travel and because the accused denies that those code sections are applicable to the accused.
3. I hereby challenge the jurisdiction of this court to hear this case before the administrative agency has made a determination.
4. A challenge to jurisdiction must be resolved before the court can proceed further in a case. Authority: Rhode Island v Massachusetts. (1838) 37 U.S. 657 http://www.lawyerdude.netfirms.com/rhode.html
5. In enforcement of the California Vehicle Code, the Police Department acts under the original jurisdiction vested in the California Highway Patrol.
6. The California Highway Patrol and the Department of Motor Vehicles are an "Agency" within the meaning of California Government Code §11405.30.
7. The California statutes says:
California Government Code section §11405.30 .
“Agency” means a board, bureau, commission, department, division, office, officer, or other administrative unit, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf of or under the authority of the agency head. To the extent it purports to exercise authority pursuant to this chapter, an administrative unit otherwise qualifying as an agency shall be treated as a separate agency even if the unit is located within or subordinate to another agency.
8. Unalienable rights to travel and to property are affected by the actions of the state in this case. These rights are protected by both the state and federal constitutions.
9. Article 4 section II of the U.S. Constitution says:
The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
10. There is a dynamic tension between the citizen and the ever encroaching state government.
11. Statutes are merely a codification and distillation of the centuries of court opinions that constitute THE COMMON LAW.
12. The Vehicle Code is enforced by The California Highway Patrol and the Department of Motor Vehicles.
13. In California that regulation is defined in California Vehicle Code §§2400 and 1650 which reads:
California Vehicle Code §2400(b). The commissioner shall enforce all laws regulating the operation of vehicles and the use of the highways except that, on ways or places to which Section 592 makes reference, the commissioner shall not be required to provide patrol or enforce any provisions of this code other than those provisions applicable to private property." California Vehicle Code §1650. "The director shall administer and enforce the provisions of this code relating to the department.
14. Section 2 of Article IV of the U.S. constitution guarantees these rights to me
15. The commissioner shall have full responsibility and primary jurisdiction for the administration and enforcement of the vehicle code as per California Vehicle Code §2400(d) which reads:
California Vehicle Code §2400(d). "The commissioner shall have full responsibility and primary jurisdiction for the administration and enforcement of the laws, and for the investigation of traffic accidents, on all toll highways and state highways constructed as freeways, including transit-related facilities located on or along the rights-of-way of those toll highways or freeways. "
16. In California the "commissioner" is the Commissioner of the California Highway Patrol
17. See California Vehicle Code §265 .
The "director" is the head of the Department of Motor Vehicles. See California Vehicle Code §1504
18. Being invested with primary jurisdiction over the Vehicle Code necessarily implies that any allegations which arise from the code are cognizable in the first instance by the agency.
19. Further, since the allegations in the first instance are cognizable by the agency, judicial interference is to be withheld until the administrative process has run its course and a final determination is issued. Authority: Jonathan Neil & Assoc., Inc. v. Jones, 33 Cal. 4th 9171 .
20. According to California Government Code §§ 11400 , 11410.20 & 11410.50 , The executive branch departments within the California Business, Transportation & Housing agency, hereafter collectively, "Agency," which are not expressly exempted nor are there statutes relating to the proceedings that provide otherwise, must abide by the Administrative Procedures Act, "APA":
California Government Code §11400(a) : "This chapter and Chapter 5 (commencing with Section 11500) constitute the administrative adjudication provisions of the Administrative Procedure Act."
California Government Code §11410.20: "Except as otherwise expressly provided by statute: (a) This chapter applies to all agencies of the state." 21. The Business, Transportation & Housing Agency consists of the California Highway Patrol and the Department of Motor Vehicles. This is according to California Government Code §13975 which states:
". . the agency consists of . . . the California Highway Patrol . . . the Department of Motor Vehicles. . ."
22. See also 38 39 California Vehicle Code §2100 .
23. Therefore, the California Highway Patrol, through the commissioner and the Department of Motor Vehicles through the director, are required to act in accordance to the Administrative Procedures Act, commencing with Section 11370 of the California Government Code. See California Vehicle Code §2402 .
24. The agency is required to conduct adjudicative hearings for actions undertaken within the purview of its authority (contested cases) where a state statute or an inalienable right (to travel) is in question. See California Government Code §§11410.10 , 11410.60(b)(2) , 11512 . http://caselaw.lp.findlaw.com/cacodes/gov/11410.10-11410.60.html
25. Every contested case is required to be heard in an administrative proceeding. See California Government Code §11512 .
26. All Agency hearings are required to be heard by executive branch administrative law judges, not judicial branch judges. See California Government Code §11502(a) http://caselaw.lp.findlaw.com/cacodes/gov/11500-11529.html
27. An administrative hearing on a contested case is to be initiated by accusation in the form of a written statement of charges. See California Government Code §11503 .
28. Upon the filing of an accusation, the Agency must serve a copy thereof upon the respondent. See California Government Code §11505(a) .
29. This accusation shall include a post card or other form entitled Notice of Defense which, when signed by or on behalf of the respondent and returned to the agency, will acknowledge service of the accusation. See California Government Code §11505(a) .
30. According to California Government Code §11506(a) , within 15 days after service of the accusation the respondent may file with the agency a notice of defense in which the respondent may:
a. Request a hearing.
b. Object to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed.
c. (There are other options.)
31. Nobody gave me a written accusation.
32. Nobody served me with an accusation as per California Government Code §11505(a).
33. I have not been given an opportunity to exercise my rights under 28 California Government Code §11506 to enjoy a hearing on the facts and receive a determination at the administrative level as per 29 California Government Code §§11410.10 , 11410.60(b)(2) 11512 .
34. I have attached my affidavit in support of facts not apparent from the record.
35. My guaranteed 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 Agencies to comply with the mandate of California Government Code §§11410.10 and 11503 .
36. It is black letter law that judicial review is conditioned upon a final decision or determination pursuant to an agency adjudicative proceeding. See, for example 1 California Government Code §11425.50(b) .
Cases pertaining to administrative law:
37. "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." 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)
38. "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 American Law Reports 715.
39. Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts. Authorities: Abelleira v. District Court of Appeal, supra, p. 293; United States v. Superior Court, 19 Cal. 2d 189, 194; Volume120 Pacific Reporter 2nd Series page 26.
40. 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.
41. 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. “ Cardoso v. Department of Alcoholic Beverage Control, Cal. App. Dist.3 07/21/1958. 162 Cal. App. 2d 277, 327 P.2d 591.
42. "The doctrine [of exhaustion of administrative remedy], 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. Authority: Home Loan Bank Board v. Mallonee, (9 Cir.) 196 F.2d 336; Aircraft & D. Equipment Corp. v. Hirsch, http://laws.findlaw.com/us/331/752.html 331 U.S. 752, 767 [67 S.Ct.1493, 91 L.Ed. 1796, 1806; Red River Broadcasting Co. v. Federal C. Com. (C.A.D.C.), 98 F.2d 282, 287, cert. den. 305 U.S. 625; 59 S.Ct. 86; 83 L.Ed. 400.
43. "It lies within the power of the administrative agency to determine in the first instance, and before judicial relief may be obtained, whether a given controversy falls within the statutory grant of jurisdiction.” - United States v. Sing Tuck (1904) http://laws.findlaw.com/us/194/161.html , 194 U.S. 161; 24 S.Ct. 621, 48 L.Ed. 917; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 [58 S.Ct. 459, 82 L.Ed. 638]; Federal Trade Com. v. Claire Furnace Co., 274 U.S. 160 [47 S.Ct. 553, 71 L.Ed. 978]; Federal Power Com. v. Metropolitan Edison Co., 304 U.S. 375 [58 S.Ct. 963, 82 L.Ed. 1408]; South Porto Rico Sugar Co. v. Munoz, 28 F.2d 820; 48 Yale Law Journal 981, 992-995.)" (United States v. Superior Court, 19 Cal. 2d 189, 195 [120 P.2d 26].)
44. The importance of giving the administrative agency the first opportunity to determine the extent of its jurisdiction and to decide in a final way matters falling therein is discussed in Camp v. Herzog, (C.A.D.C.) 190 F.2d 605, and S.S.W., Inc., v. Air Transport Ass'n. of America (C.A.D.C.), 191 F.2d 658. See, also, Fahey v. Mallonee (1947) http://laws.findlaw.com/us/332/245.html , 332 U.S. 245; 91 L.Ed. 2030; 67 S.Ct. 1552. Woodard v. Broadway Federal Savings and Loan Association of Los Angeles, 111 Cal. App. 2d 218, 244 P.2d 467 (Cal.App.Dist.2 05/19/1952)
45. The State has not exhausted its administrative remedy because there has been no agency adjudicative proceeding or determination pursuant to the Administrative Procedures Act, commencing with Section 11370 of the California Government Code.
46. 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. See Cardoso v Dept. Of Alcohol Beverage Control, 162 Cal. App. 2d 277; 10 327 P.2d 5912 .
"The doctrine [of exhaustion of administrative remedies], 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." Woodard v. Broadway Federal Savings and Loan, 111 Cal. App. 2d 218, 16 244 P.2d 4673 .
47. There has been no administrative hearing.
48. There is no final agency determination in the records of this case and indeed cannot be because there has been no administrative hearing.
49. Where there is no agency determination, the court has no subject matter jurisdiction. Where the court has no jurisdiction on the subject matter, a judge proceeds in the complete absence of jurisdiction.
50. I am damaged by being repeatedly forced into this judicial forum in violation of my rights to due process of law.
51. The state has not stated a claim for which relief can be granted. Because there is no claim, this case must be dismissed as a matter of law. Because there is and can be no jurisdiction in any court without an administrative determination on the record, this case must be dismissed with prejudice because jurisdictional issues cannot be cured.
Signed______________________________ Paul Douglas Weldon. Wednesday, November 30, 2005
Proof of Service
I, Douglas Palaschak certify that I served this motion 7196 upon the prosecutor by mailing a copy of version 0.8 to her 1st class postage paid on this day Wednesday, November 30, 2005. I addressed the envelope as set forth below. Signed _______________ Douglas Palaschak.
District Attorney
Attention: Damare Theriot
2220 Tulare #1000
Fresno CA 93721
End of Motion. There are no Exhibits.