CADILLAC BRIEF

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

Reedley Justice Court

815 "G" Street

Reedley. Ca  93654

PEOPLE OF THE STATE OF CALIFORNIA,

"Plaintiff"; 

and

XXXXXXXX; "Accused"

Case No.: XXXXXXXX

DEFENDANT'S NOTICE & MOTION TO DISMISS

FOR LACK OF SUBJECT MATTER JURISDICTION

1. XXXXXXXXXX moves the court for an order of dismissal.

 

2. The Department of Motor Vehicles and the Department of California

Highway Patrol are both departments and sub-agencies of the California

Business, Transportation & Housing agency.  The departments/sub-agencies are
authorized with original jurisdiction to enforce and hold administrative court
hearings concerning California Vehicle Code, "CVC," violations.

This judicial court does not have original jurisdiction in this case.

 3. Dismissal is proper in this case because this court was not properly
petitioned with a writ of mandate, as required by law, to invoke the subject
matter jurisdiction of this court, for judicial review of the administrative
law court's order or final determination.

4. This motion is based on the attached Defendant's Memorandum Of

Points & Authorities for Notice & Motion For Dismissal For Lack Of Subject
Matter Jurisdiction, and all pleadings and papers on file. 5. Please take
notice that xxxxxxxx will bring this motion for a pre-trial hearing before
this court on ______________, at _______, in  __________.

Dated this 24th day of June, 2004

_______________________(signed)_____________

XXXXXXXX

 
 

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

Reedley Justice Court

815 "G" Street

Reedley. Ca  93654

PEOPLE OF THE STATE OF

CALIFORNIA; Plaintiff,

vs.

xxxxxxxxxx; Defendant

Case No.: xxxxxxxxxx

DEFENDANT'S MEMORANDUM OF POINTS & AUTHORITIES FOR MOTION TO DISMISS LACK OF

SUBJECT MATTER JURISDICTION
 

xxxxxxxxxx asks the court for an Order Of Dismissal For Lack of

Subject Matter Jurisdiction, for the following reasons:

A. Parties

1. The parties are the People Of the State Of California,

"Plaintiff";

and

xxxxxxxxxx, "Defendant."

B. Statement of Facts

2. Officer m. HALVORSON 15751, "Officer," issued a Notice To Appear,

"UTC," to Defendant, for alleged violation of California Vehicle Code,

"CVC," § 23152A Driving Under Influence. 3. On or about 4-24-04,

Defendant submitted a demurrer challenge to the jurisdiction of the

court, which Judge overruled. 4. Judge entered a plea of not guilty for

 
Defendant, after Defendant Stated that Defendant did not have enough

information to make a knowledgeable plea.5. On or about 9-10-02,

Defendant picked up a copy of Plaintiff's discovery from the court

clerk.

C. Points and Authorities

6. According to California Government Code, "CGC," §12850, state agencies fall

under the executive branch of the Governor:

 §12850.  The secretary of each agency has the power of general supervision
over, and is directly responsible to the Governor for, the operations of each
department, office, and unit within the agency.

7. According to CGC §11000, state agencies include, but are not limited to,
the Department of Motor Vehicles, "DMV," the Department of

California Highway Patrol, "CHP," the Police & Sheriff's departments, etc:

§11000.  (a) As used in this title, "state agency" includes every state
office, officer, department, division, bureau, board, and commission.

8. According to CGC §12800, the Business, Transportation & Housing agency is

an agency of the state of California:

§12800.  There are in the state government the following agencies:

State and Consumer Services; Business, Transportation and Housing; California
Environmental Protection; California Health and Human Services; Labor And
Workforce Development; Resources; and Youth and Adult Correctional. (Emphasis
added.)

9. According to CVC §1500 & §2100. The DMV & CHP are departments of

the California Business, Transportation and Housing agency: §1500. 

There is in the Business, Transportation and Housing Agency the

Department of Motor Vehicles. §2100.  There is in the Business,

Transportation and Housing Agency the Department of the California

Highway Patrol.

10. According to CVC §265 & §295 Words & Phrases, the commissioner is the
Commissioner of the CHP, and the director is the Director of the

DMV: §265.  The "commissioner" is the Commissioner of the California Highway

Patrol.

§295.  The "director" is the Director of Motor Vehicles.

11. According to CVC §1650 & §2400(b). Powers & Duties.  The director of the
DMV is authorized with original jurisdiction and charged with administering
and enforcing the (CVC) code; the commissioner of the CHP is authorized with
original jurisdiction and charged with enforcement of the laws regulating
vehicles & use of the highway:

§1650.  The director shall administer and enforce the provisions of this code
relating to the department.

§2400(b) the commissioner shall enforce all laws regulating the operation of
vehicles and the use of the highways

 
12. 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":

§11400.  (a) This chapter and Chapter 5 (commencing with Section

11500) constitute the administrative adjudication provisions of the

Administrative Procedure Act.

§11410.20.  Except as otherwise expressly provided by statute:

    (a) This chapter applies to all agencies of the state.

§11410.50.  This chapter applies to an adjudicative proceeding required to be

conducted under Chapter 5 (commencing with Section 11500) unless the statutes
relating to the proceeding provide otherwise.   (Emphasis added.)

13. According to CGC § 11425.10(a)(1 & 2), the Agency is required to give
notice of any Agency actions and is required to send a copy of the procedure
governing the action:

§11425.10.  (a) The governing procedure by which an agency conducts  an

adjudicative proceeding is subject to all of the following requirements:

   (1) The agency shall give the person to which the agency action is directed
notice and an opportunity to be heard, including the opportunity to present
and rebut evidence.

  (2) The agency shall make available to the person to which the agency action
is directed a copy of the governing procedure, including a statement whether
Chapter 5 (commencing with Section 11500) is applicable to the proceeding.

14. According to CGC §11410.10 & §11503, an agency is required to conduct

adjudicative hearings for actions undertaken within the purview of its
authority where a state statute or an inalienable right (to travel) is in
question:

 
§11410.10.  This chapter applies to a decision by an agency if, under the
federal or state Constitution or a federal or state statute, an evidentiary
hearing for determination of facts is required for formulation and issuance of
the decision.

§11503.  A hearing to determine whether a right, authority, license or

privilege should be revoked, suspended, limited or conditioned shall be
initiated by filing a citation.  (Emphasis added)

15. According to CGC §11502(a) all Agency hearings are required to be heard by
executive branch administrative law judges, not judicial branch judges:

§11502(a) All hearings of state agencies required to be conducted under this

chapter shall be conducted by administrative law judges on the staff of the
Office of Administrative Hearings.

16. CGC §11523 provides the proper procedure for the Agency (or

Defendant) to request judicial review of the administrative Agency's final

decision or order:

§11523.  Judicial review may be had by filing a petition for a writ of mandate
in accordance with the provisions of the Code of Civil

Procedure, subject, however, to the statutes relating to the particular

agency.

D. Argument

17. It is contrary to the principle of separation of powers and a breach of

due process for this judicial branch court to usurp the executive branch
administrative authority, duty & jurisdiction held by the DMV, 18. The UTC
issued to Defendant was undertaken within the purview of the original
authority and jurisdiction of the executive branch DMV, not this judicial
branch court.  See CVC §1650 & §2400(b), CGC §§ 11425.10(a) (1 & 2), §11503 &
§11502(a), supra.

19. Defendant's unconditional right to travel is challenged by the issuance of

a UTC claiming violations of restrictive CVC conditions.  See CGC § 11503 &
11410.10, supra.
20. The Agency, not a judicial branch court, is required to initiate an
administrative Agency hearing and send notice of action and a copy of the
governing procedure to Defendant.  See CGC § 11503 and §11425.10(a) (1 & 2),
supra.

21. According to CGC §11410, §11410.20, §11410.50, § 11425.10(a)(1 &

2), §11503, §11502(a), & §11523, supra, this judicial court has no
jurisdiction to lawfully hear an administrative matter until administrative
due process procedures have been exhausted.

22. This judicial court can only review the facts and conclusions of law found
in the executive Agency's administrative final determination or order, and
only after the Agency (or Defendant) petitions for a writ of mandate for
judicial review.  See CGC §11523, supra.

23. The Agency with original jurisdiction has not filed a petition for a writ
of mandate for judicial review with this judicial court in accordance with CGC
§11523.  Therefore, this court has no jurisdiction to hear this matter. E.
Conclusion

24. The original jurisdiction Agency has not presented a petition to this
court, for a writ of mandate for this court to judicially review the
administrative courts final determination or order, which would give subject
matter jurisdiction to this judicial court. See CGC §11523. 25. The original
jurisdiction Agency, as shown by CVC §1650 & §2400(b), & CGC § 11502(a),
supra, has not invoked the subject matter jurisdiction of this judicial
court.  See CGC §11523, supra.

26. This judicial branch court has no lawful authority to impose its opinion,
where no original jurisdiction administrative agency petition stands in
compliance with the APA requesting it to do so.

27. No judicial determination has properly been requested. The law requires
that jurisdiction be properly invoked. Without jurisdiction, this court cannot
consider this matter. This case should be dismissed for lack of subject matter
jurisdiction.

F. Prayer

28. Because this court has no subject matter jurisdiction to consider

Case No.: T4600292-7, Defendant asks the court to grant Defendant an Order  Of
Dismissal For Lack Of Subject Matter Jurisdiction for said case.

Dated this 24th day of July, 2004

 
xxxxxxxxxx

Respectfully Submitted,

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

Reedley Justice Court

815 "G" Street

Reedley. Ca  93654

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff,

vs.

xxxxxxxxxx, Defendant

Case No.: xxxxxxxxxx

PROPOSED ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION

 

The Court having reviewed the evidence presented in the Memorandum

Of Points & Authorities For Notice & Motion To Dismiss For Lack Of Subject
Matter Jurisdiction, and all pleadings and papers on file, and being fully
advised therein now finds:

Good cause appearing therefore, IT IS ORDERED that:

Case # T4600292-7, and all court determinations and orders issued therein, is
dismissed, with prejudice, for lack of subject matter jurisdiction.

Dated this ______ day of _______________________, 2004

______________________________________

JUDGE OF THE SUPERIOR COURT

SKATEBOARD BRIEF

xxxxxxxxxx

2929 flowerAve

Reedly Ca  93553

 
 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF FRESNO

People of California                 Motion for Dismissal

             vs.

xxxxxxxxxx, sur juris          Court Room _______

                                                Date ____/____/2004

The people of the state have not filed a certified Final Administrative

Determination.  The people of California have failed to make a claim, that

this court can hear, as per the Administrative Procedures Act.

There is no “Agency Final Administrative Determination” in the record. 

This Court has nothing to review.

The State has not exhausted its Administrative remedies.  Therefore the

“Court” lacks Subject Matter Jurisdiction.

 

To move this Court forward without exhausting Administrative remedies

will be Depriving the accused “Due Process of Law”, a violation of

Constitutional Law.

Here are a few Supreme Court cases which back my position:

“Where rights are secured by the Constitution are involved there can be

no rule making or legislation which would abrogate them.”  Miranda v.

Arizona 384 U.S.,

“The claim and exercise of a constitutional right cannot be converted into a

crime.” Miller v. U. S., 230 F 2d 486, 489

“There can be no sanction or penalty imposed upon one because of his exercise
of Constitutional Rights” Sherar v. Cullen, 481 F. 945.

No state shall convert a liberty into a privilege, license it, and attach a fee to it.”
MURDOCK v. PENN, 319 U.S., 105.

“If the state converts a liberty into a privilege, the citizen can engage in the
right with impunity.” SHULLESWORTH v. BIRMINGHAM, 373 U.S., 262.

“If you’ve relied on prior decisions of the Supreme Court you have a perfect
defense for willfulness.”  U. S. v. BISHOP, 412 U.S., 346.
 

“Officers of the court have no immunity, when violating a constitutional right,

from liability, for they are deemed to know the law.” Owen v. Independence,
100 S. CT 1398.

“The court is to protect against any encroachment of constitutionally secured

liberty.” Boyd v. U. S., 116 U.S. 616.

“An unconstitutional act is not law; it confers no rights; it imposes no duties;

affords no protection; it creates no office; it is in legal contemplation as
inoperative as though it had never been passed.”  Norton v. Shelby County,
118 U.S. 425

“Proceedings in a court are legally void where there is an absence of

jurisdiction.”  Scott v. McNeal, 154 U.S. 34; RE Bonner, 151 U.S. 242

“The exercise of a Constitutional Right cannot be the basis of a crime.” 

Marchetti v. U. S. 390 U.S.

The Fifth Amendment mandates that all judicial proceedings must proceed by
due process.

Since all judges take an oath of office to uphold the Constitution and the
Supreme Court has additionally held that government employees who

violate a law in the performance of duties do not represent the government,

should we conclude that adjudication?  Sure it does.  This is the only

 
guarantee that a court of admiralty, a star chamber proceeding, a kangaroo
court, or an arbitrary proceeding by whatever name does not occur. 

“That court proceedings must be within Constitutional provisions has been

forcefully established by the Supreme Court.”  Muskrat v. United States, 219
U.S. 346; Smith v. U. S., 360 U. S. 1.

ANY action involving a citation or ticket issued, confiscation, impoundment, or

search and seizure of my private property by a police officer or ANY

other public servant employee which carries a fine or jail time is a penalty or
sanction, thus converting a right into a crime.

Any ticket or citation is thus NULL and VOID.  Under every circumstance
without exception, government officials must hold the Constitution for

The United States of America (1791) and the California Constitution (1849)
supreme over ANY other laws, regulations, or orders.  Every police

(executive officer) or judicial officer has sworn an oath to protect and lives,
property, AND RIGHTS of the Citizens of the united states of America

under the supreme law of the land.  ANY act to deprive state Citizens of their
constitutionally protected rights is a direct violation of their oath of

office, a felony and a federal crime.

Order to Dismiss Case # XXXXXX

 

__________________________________.  

Judge of the Traffic Court / Superior Court

__________________________________.

Accused,  xxxxxxxxxx