Joseph Lopez pro se
35215 Candy Street
Westland, Michigan 48186
734 365 3725
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19th District Court of Michigan
16077 Michigan Avenue, Dearborn, Michigan 48126
Chief Judge Virginia A. Sobotka , Judge William C. Hultgren, Judge Mark W. Somers
Mr. Doyne Jackson , Court Administrator
http://www.cityofdearborn.org/courts/index.shtml
Traffic Division phone: 313.943.2062
Court clerk dba under false color of law as The People of Michigan
v
Joseph Lopez
Case Number: None. There is no case.
Ticket Number: T 120274
Document #7218 Version 0.95
Defendant’s 2nd Motion.
Challenge to court’s jurisdiction.
Venue for Hearing:
Time: 2 pm
Date: Tuesday 24 January 2005
Place: Court of Mark Somers
Notice of Motion
To the district attorney, all parties, and counsel: Be advised that at the venue designated above, or at such other venue as the court may designate, I will demand that this case be dismissed for lack of subject matter jurisdiction and personal jurisdiction. The judicial branch does not have general roving geographical jurisdiction; only the King enjoys geographical jurisdiction. We freed ourselves of that jurisdiction in a field near Runnymede by putting a sword to the neck of the king.
This motion will be based on the authority set forth herein and such further authority as I may present at that time or in an upgraded motion.
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
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
I hereby waive my right to a speedy trial so that my Motion to Dismiss may be heard.
Signed, _____________ JosephLopez Monday, December 5, 2005
I received a ticket for speeding ticket. The officer offended interstate commerce and my right to safely travel. He did so in order to generate revenue for his employer. Now the local court proposes to try me in the absence of a prosecutor or a decision by a prosecutorial body to prosecute. This will not stand.
1. The issue of jurisdiction must be resolved before any other issues can go forward. Rhode Island v Massachusetts (1838) 37 U.S. 657
http://www.lawyerdude.netfirms.com/rhode.html
2. 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 and the correlative section of the Michigan state constitution which is section #_____________ .
3. I stand accused of violating the Michigan Vehicle Code section #_________
4. 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.
5. In enforcement of the Michigan Vehicle Code, the Police Department acts under the original jurisdiction vested in the Michigan Highway Patrol.
6. The Michigan Highway Patrol and the Department of Motor Vehicles are an "Agency" within the meaning of CGC §11405.30 and its correlative Michigan statute which I have not found yet.
7. I could sure use some “effective assistance of counsel” to help me find the correlative Michigan statute.
8. I am thinking that the Michigan statute is similar to the California statue.
9. Michigan was the 26th state admitted to the Union. It was admitted in 1837. By comparison California was the 31st state. California was admitted in 1850. I say this by way of attempting to find out where the state derived its constitution. See http://www.laserdude.gq.nu/states.html
10. 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.
11. 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.
12. 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.
13. That means that if the commerce clause is offended in California then it should be offended by the same action in Michigan.
14. If California took the time to write statutes in that regard, then the logic must be applicable in Michigan regardless of whether Michigan folks took the time to codify it.
15. Statutes are merely a codification and distillation of the centuries of court opinions that constitute THE COMMON LAW.
16. The Vehicle Code is enforced by The Michigan Highway Patrol and the Department of Motor Vehicles.
17. In California that regulation is defined inr CVC §§2400 and 1650 which reads:
CVC §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." CVC §1650. "The director shall administer and enforce the provisions of this code relating to the department.
18. Michigan surely has a correlative statute. I have not found it yet.
19. However, section 2 of Article IV of the U.S. constitution guarantees these rights to me
20. The commissioner shall have full responsibility and primary jurisdiction for the administration and enforcement of the vehicle code as per CVC §2400(d) which reads:
CVC §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. "
21. In California the "commissioner" is the Commissioner of the California Highway Patrol. I am thinking it is the same way in Michigan.
22. See CVC §265 .
The "director" is the head of the Department of Motor Vehicles. See CVC §1504
23. 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.
24. 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 .
25. I am thinking that there is a correlative Michigan case but even if there is not, article IV, section 2 protects me in this regard.
26. According to CGC §§ 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":
CGC §11400(a) : "This chapter and Chapter 5 (commencing with Section 11500) constitute the administrative adjudication provisions of the Administrative Procedure Act."
CGC §11410.20: "Except as otherwise expressly provided by statute: (a) This chapter applies to all agencies of the state." 27. The Business, Transportation & Housing Agency consists of the California Highway Patrol and the Department of Motor Vehicles. This is according to CGC §13975 which states:
". . the agency consists of . . . the Michigan Highway Patrol . . . the Department of Motor Vehicles. . ."
28. See also 38 39 CVC §2100 .
29. 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 (CGC). See CVC §2402 .
30. 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 CGC §§11410.10 , 11410.60(b)(2) , 11512 . http://caselaw.lp.findlaw.com/cacodes/gov/11410.10-11410.60.html
31. Every contested case is required to be heard in an administrative proceeding. See CGC §11512 .
32. All Agency hearings are required to be heard by executive branch administrative law judges, not judicial branch judges. See CGC §11502(a) http://caselaw.lp.findlaw.com/cacodes/gov/11500-11529.html
33. An administrative hearing on a contested case is to be initiated by accusation in the form of a written statement of charges. See CGC §11503 .
34. Upon the filing of an accusation, the Agency must serve a copy thereof upon the respondent. See CGC §11505(a) .
35. 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 CGC §11505(a) .
36. According to CGC §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.)
37. Nobody gave me a written accusation.
38. Nobody served me with an accusation as per CGC §11505(a).
39. I have not been given an opportunity to exercise my rights under 28 CGC §11506 to enjoy a hearing on the facts and receive a determination at the administrative level as per 29 CGC §§11410.10 , 11410.60(b)(2) 11512 .
40. I have attached my affidavit in support of facts not apparent from the record.
41. 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 CGC §§11410.10 and 11503 and the correlative Michigan statutes pertaining to administrative law.
42. 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 CGC §11425.50(b) .
Cases pertaining to administrative law:
43. "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)
44. "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.
45. 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.
46. 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.
47. 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.
48. "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.
49. "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 L.J. 981, 992-995.)" (United States v. Superior Court, 19 Cal. 2d 189, 195 [120 P.2d 26].)
50. 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)
51. 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 and its correlative Michigan statute.
52. 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 .
53. There has been no administrative hearing.
54. There is no final agency determination in the records of this case and indeed cannot be because there has been no administrative hearing.
55. 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.
56. I am damaged by being repeatedly forced into this judicial forum in violation of my rights to due process of law.
57. 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____________________ Joseph Lopez. Monday, December 5, 2005.
I, _____________________________, declare the following under penalty of Perjury:
On ___________________, 2005 I served this paper in person at the reception window of the prosecutor. Thereafter I presented it for filing at the criminal/ traffic filing window.
Signed ___________________________, _____________, 2005
End of Motion. There are no Exhibits.