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Re: Administrative Hearing

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  • paradoxmagnus
    ADMINISTRATIVE AGENCIES are part of the EXECUTIVE department of government and have LIMITED JURISDICTION, [6] It is settled principle that administrative
    Message 1 of 2 , Jan 4, 2007
      ADMINISTRATIVE AGENCIES are part of the EXECUTIVE department of
      government and have LIMITED JURISDICTION,

      "[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

      Most are ALPHABET SOUP agencies such as DMV, BAR, ABC, ATF, IRS, and
      so on.

      In most if not all cases, I think people will find that they deal
      with matters of COMMERCE.

      COURTS OF LAW are SUPPOSED to be part of the JUDICIAL department and
      when requested, are SUPPOSED to provide JUDICIAL REVIEW of the

      "It has long been the law in this state that "where an
      administrative remedy is provided by statute, relief must be sought
      from the administrative body and this remedy exhausted before the
      courts will act." (Abelleira v. District Court of Appeal (1941) 17
      Cal.2d 280, 292; Styne v. Stevens (2001) 26 Cal.4th 42, 56; Sierra
      Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th
      489, 495.) This exhaustion requirement "is a jurisdictional
      prerequisite, not a matter of judicial discretion." (Yamaha Motor
      Corp. v. Superior Court (1986) 185 Cal.App.3d 1232, 1240; Abelleira,
      at p. 293.)
      Exhaustion of administrative remedies is a jurisdictional
      prerequisite to judicial review of an administrative decision "even
      though the administrative remedy is couched in permissive language;
      an aggrieved party is not required to file a grievance or protest if
      he does not wish to do so, but if he does wish to seek relief, he
      must first pursue an available administrative remedy before he may
      resort to the judicial process. [Citation.]" (Yamaha Motor Corp. v.
      Superior Court, supra, 185 Cal.App.3d at p. 1240.)
      The trial court dismissed the petition on the ground that the
      objectors had failed to request reconsideration before the LAFCO as
      provided in Government Code section 56857, subdivision (a), and the
      Court of Appeal affirmed. (Id. at pp. 494-495.) The Supreme Court
      reversed, noting that subdivision (a) of Government Code section
      56857 merely provides that an adverse party "may" request
      reconsideration of an adverse LAFCO decision, and that "[n]othing in
      the statutory scheme explicitly states that an aggrieved party must
      seek rehearing prior to filing a court action." (Id. at p. 495.) The
      court reasoned that "[a]t the most basic level, when a party has
      been given ostensibly permissive statutory authorization to seek
      reconsideration of a final decision, that he or she is affirmatively
      required to do so in order to obtain recourse to the courts is not
      intuitively obvious. Even to attorneys, the word 'may' ordinarily
      means just that. It does not mean 'must' or 'shall.'" (Id. at p.
      499.) The court further reasoned that reconsideration by the
      administrative body would not further the purpose of the exhaustion
      requirement because "the administrative record has been created, the
      claims have been sifted, the evidence has been unearthed, and the
      agency has already applied its expertise and made its decision as to
      whether relief is appropriate. The likelihood that an administrative
      body will reverse itself when presented only with the same facts and
      repetitive legal arguments is small." (Id. at p. 501.) In so
      holding, the court overruled Alexander v. State Personnel Bd. (1943)
      22 Cal.2d 198, to the extent it held that a party aggrieved by an
      administrative decision must always pursue available procedures for
      rehearing or reconsideration before the administrative body prior to
      seeking judicial review. (Id. at p. 510.)
      Under the circumstances, the general exhaustion requirement bars him
      from seeking judicial review of the administrative decision.
      (Abelleira v. District Court of Appeal, supra, "17 Cal.2d at p. 292;
      Sierra Club v. San Joaquin Local Agency Formation Com., supra, 21
      Cal.4th at p. 495.)
      But, as he recognizes, finality does not equal exhaustion: "'. . .
      The question whether administrative remedies must be exhausted is
      conceptually distinct . . . from the question whether an
      administrative action must be final before it is judicially
      reviewable. . . . [T]he finality requirement is concerned with
      whether the initial decisionmaker has arrived at a definitive
      position on the issue . . . [, while] the exhaustion requirement
      generally refers to administrative and judicial procedures by which
      an injured party may seek review of an adverse decision . . . .'"
      (Action Apartment Assn. v. Santa Monica Rent Control Bd. (2001) 94
      Cal.App.4th 587, 609-610.)" Marquez v. Gourley (2002) , Cal.App.4th
      [No. B156151. Second Dist., Div. Six. Sept. 30, 2002.]

      "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)

      Patrick in California

      "Half a truth is often a great lie"--Benjamin Franklin

      --- In tips_and_tricks@yahoogroups.com, "mn_chicago"
      <mn_chicago@...> wrote:
      > Somewhere, on topic, FF said:
      > > If you ask me, this is why most people who lose against an agency
      > > lose. Most people have no idea what the very first fact is to
      > > into evidence in ANY adminstrative hearing...
      > It must not be oath of office.
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