THE JUDICIAL COUNCIL OF CALIFORNIA

(an administrative agency)

doing business as

THE NEVADA COUNTY SUPERIOR COURT

(a fictitious business)

THE STATE BAR OF CALIFORNIA	|	Memorandum of Points
AND DOE(S) PRESENTLY UNKNOWN	|	and Authorities concerning
	|	Administrative Agencies in California.
versus	|
	|	Case number [?]
Thomas Murrell Thornhill III	|
(a natural born, adult man)	|	at: 201 Church Street
	|	Nevada City, California
_______________________________	/	Date: [?]

1.

The appearance of the parties ... and their proceeding to trial without objection at the time can make no difference. For consent cannot create a Court, or give jurisdiction to a tribunal otherwise possessing none. (Germond v. The People, 1 Hill, 343.) ..."it was absolutely essential to the validity of a judgment that it be rendered by a Court of competent jurisdiction, at the time and the place, and in the form prescribed by law." (Wicks v. Ludwig, 9 Cal. 175; Smith v. Chichester, 1 Cal. 409.) The tribunal before which the trial was had was, in no legal sense, a Court. It had no authority whatever in the premises. The whole proceeding is a nullity,... (emphasis added) Norwood v. Kenfield (1867), 34 Cal. 329, 333.

2. 2 CAL JUR 3d (Rev.), ADMIN. LAW, � 14 reads (in part, footnotes omitted):

The California Constitution specifically creates certain agencies,[5] specifically authorizes the legislature to create a complete system to regulate certain other areas, ... and directs the legislature to create, ratifies the creation of, or recognizes other administrative agencies.[7] They are commonly designated "constitutional agencies" to distinguish their unique position among administrative agencies, and , because of their preferred status, the general rules of administrative law in many instances are not controlling on them. ... However, many of the cases in which one of the agencies is a party enunciate rules that are applicable in principle to administrative agencies generally, and where appropriate are cited in this article. ...In relying on such cases as general authority it should be kept in mind that the rule applied is based on the special status of the commission as a party, though the court does not expressly say so.

Constitutional provisions creating agencies give the legislature plenary power, unlimited by the other provisions of the constitution but consistent with the provisions governing the agency, to confer additional authority and jurisdiction on the agency.[9] This allows the legislature, unlimited by other provisions of the constitution, and through enabling legislation, to give the agency not only administrative but also legislative and judicial powers.[10]
Although constitutional agencies may be exempted from the inhibitions of the state constitution, they are nevertheless subject to the limitations imposed by the Fourteenth Amendment of the United States Constitution.[11] A constitutional amendment ratifying a legislative act cannot effectuate the act to the extent that it impairs the obligation of a contract or deprives one of vested property rights without due process.[12]

The agencies that gave rise to administrative law had their birth in necessity, have become an essential and indispensable part of our government, and have created a new sphere of governmental activity embracing in itself all three aspects of governmental powers: legislative, executive, and quasi-judicial functions that in smaller communities and under more primitive conditions were performed by the legislative and judicial branches of government, had to be entrusted to departments, boards, commissions, and agents, and that transactions of public business must be done in this way or they could not be done at all.[69]

Even a casual observer of governmental growth and development must have observed the ever-increasing multiplicity and complexity of administrative affairs--national, state, and municipal--and even the occasional reader of the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imperative that many quasi-legislative and quasi-judicial functions, which in smaller communities and under more primitive conditions were performed directly by the legislative or judicial branches of the government, are intrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic, and is thus sanctioned by the highest law. For, as the supreme court of the United States declares: "Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be 'to stop the wheels of government' and bring about confusion, if not paralysis, in the conduct of the public business." (Union Bridge Co. v. United States 204 U. S. 364 [51 L. Ed. 523, 27 Sup. Ct. Rep. 367].)...
...the controlling consideration is not that the power conferred may be unreasonably or oppressively exercised, for every presumption is that it will be honestly and reasonably exercised. "Laws are not made upon the theory of the total depravity of those who are elected to administer them; and the presumption is that municipal officers will not use these small powers villianously and for the purposes of oppression and mischief." (In re Flaherty, 105 Cal. 562, [27 L. R. A. 529, 38 Pac. 981]; Ex parte McManus, 151 Cal. 331, [90 Pac. 702]; Rode v. Siebe, 119 Cal. 520, [39 L. R. A. 342, 51 Pac. 869].) Therefore, eliminating the possibility of an unjust and oppressive use of the power against which the courts will interfere (New York v. Van de Carr, 199 U. S. 552, [50 L. Ed. 305, 26 Sup. Ct. Rep. 144]; Yick Wo v. Hopkins, 118 U. S. 356, [30 L. Ed. 220, 6 Sup. Ct. Rep. 1064]), the question is: Can it be justly said that this delegated power is either in its terms illegally oppressive or in its terms lacks definiteness, thus allowing too great a play to the discretion of the [city actor]?...
The most familiar to which no citation of authority is necessary are the extraordinary grants of power, without express constitutional authority, by Congress and state legislatures to interstate commerce and to railroad commissions....
And while inferior boards or tribunals cannot be invested with power to compel obedience to their orders or regulations by fine or imprisonment (Interstate Commerce Comm. v. Brimson, 154 U. S. 447, [38 L. Ed. 1047, 14 Sup. Ct. Rep. 1125]), nevertheless it is within the power of Congress to authorize them to make such reasonable regulations and orders and itself to declare that a violation of them shall be punishable as a misdemeanor. (United States v. Grimauld, 220 U. S. 506, [55 L. Ed. 570, 31 Sup. Ct. Rep. 485].) (information added in brackets, emphasis added.) Gaylord v. City of Pasadena (1917), 175 Cal. 433, 436-439, 166 P. 348.

In considering administrative law issues, the courts must accomodate the administrative process to the traditional judicial system,[81] accomodate private rights and the public interest in the powers reposed in administrative agencies,[82] and reconcile in the field of administrative action democratic safeguards and standards of fair play with the effective conduct of government.[83] The major elements in the judicial role in relation to administrative law are to decide whether an agency was lawfully created, whether the powers it exercised have been duly delegated to it, whether such powers were validly exercised, whether an administrative hearing was adequate and fair, and whether an administrative action violates constitutional guarantees or statutory rights or for any other reason is contrary to law.[84] The courts cannot usurp or unwarrantedly limit the powers and functions lawfully vested in the agencies or interfere with the proper exercise of the agencies' valid powers.[85] In so doing, the courts must leave to the legislature or the people the remedy for administrative action that may be unwise or undesirable but it is within the lawful powers of the agency.[86]

The first question goes to the very foundation of the action of administrative agencies entrusted by the Congress with broad control over activities which in their detail can not be dealt with directly by the legislature. The vast expansion of this field of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the legislature shall appropriately determine the standards of administrative action and that in administrative proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand "a fair and open hearing," -- essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process. Such a hearing has been described as an "inexorable safeguard." St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 73, 80 L. ed. 1033, 1052, 56 S.Ct. 720; Ohio Bell Teleph. Co. v. Public Utilities Commission, 301 U.S. 292, 304, 305, 81 L. ed. 1093, 1101, 1102, 57 S.Ct. 724; Railroad Commission v. Pacific Gas & E. Co. 302 U.S. 388, 393, ante, 319, 58 S.Ct. 334, Morgan v. United States, 298 U.S. 468, 80 L. ed. 1288, 56 S.Ct. 906, supra....
But a "full hearing"--a fair and open hearing--requires more than that. The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command....
Congress, in requiring a "full hearing," had regard to judicial standards,--not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. ... The requirements of fairness are not exhausted in the taking or consideration of evidence but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps.
The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play. (emphasis added.) Morgan v. United States (1938), 304 U.S. 1, 82 L.Ed. 1129, 1130-1134, 58 S.Ct. 773.

6. The California Supreme Court held (in part):

...we regard the conclusion as irresistible that the constitution of this state has in unmistakable language created a [railroad] commission having control of the public utilities of the state, and has authorized the legislature to confer upon that commission such powers as it may see fit, even to the destruction of the safeguards, privileges, and immunities guaranteed by the constitution to all other kinds of property and its owners. And while, under our republican form of government (a form of government under which the three departments--administrative, executive, and judicial--have in the past one and all been controlled by the limitations of a written constitution. {In re Duncan, 139 U. S. 449, [35 L. Ed. 219, 11 Sup. Ct. Rep. 573]), it is perhaps the first instance where a constitution itself has declared that a legislative enactment shall be supreme over all constitutional provisions, nevertheless this is but a reversion to the English form of government which makes an act of parliament the supreme law of the land. ...the present day jurisconsults are agreed that an act of parliament is not controlled by natural right or natural justice, but is controlled solely by what is deemed to be expedient and wise to the law-making power itself. (Bryce's American Commonwealth, chap. 23.) So, here, the state of Californiia has decreed that in all matters touching public utilities the voice of the legislature shall be the supreme law of the land.
Therefore, the following conclusions appear to be irresistible: that when the constitution itself, as here, declares that a legislative enactment touching a given subject shall not be controlled by any provisions or the written constitution, such a legislative enactment addressed to that subject ex proprio vigore carries with it all the force of an act of parliament. ...
This constitutional decree is, of course, binding upon this court, and under it becomes the duty of this court to lend its aid in giving effect to every power and prerogative with which the legislature may vest or clothe the railroad commission. This, however, is subject to one all-important limitation. There is still the constitution of the United States--the supreme law of this state, supreme over its constitution and over its legislature; and of no protection accorded by that instrument to a litigant before this court can that litigant be deprived. Therefore, if it shall be among the powers conferred by the legislature upon the railroad commission are those whose exercise by that commission do violence to a petitioner's rights under the constitution of the United States, protection under that constitution will be awarded him. The fourteenth amendment to the constitution of the United States prohibits a state from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws. (emphasis added.) Pacific Telephone etc. Co. v. Eshleman (1913), 166 Cal. 640, 658-661, 137 P. 1119.

7.a. The California Constitution (2001), art. 6, � 9, recognizes, but does not create, the State Bar and reads:

9. The State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record.

6001. The State Bar of California is a public corporation. It is hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue and be sued. It may, for the purpose of carrying into effect and promoting its objectives:
(a) Make contracts.
(b) Borrow money, contract debts, issue bonds, notes and debentures and secure the payment or performance of its obligations.
(c) Own, hold, use, manage and deal in and with real and personal property.
(d) Construct, alter, maintain and repair buildings and other improvements to real property.
(e) Purchase, lease, obtain options upon, acquire by gift, bequest, devise or otherwise, any real or personal property or any interest therein.
(f) Sell, lease, exchange, convey, transfer, assign, encumber, pledge, dispose of any of its real or personal property or any interest therein, including without limitation all or any portion of its income or revenues from membership fees paid or payable by members.
(g) Do all other acts incidental to the foregoing or necessary or expedient for the administration of its affairs and the attainment of its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g), inclusive, it is recognized that the State Bar has authority to raise revenue in addition to that provided for in Section 6140 and other statutory provisions. The State Bar is empowered to raise that additional revenue by any lawful means, including, but not limited to, the creation of foundations or not-for-profit corporations.
No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000), Division 4 (commencing with Section 16100), and Part 1 (commencing with Section 18000) and Part 2 (commencing with Section 18500) of Division 5, of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares.

The State Bar of California is a good deal different from most other entities that would be regarded in common parlance as "governmental agencies." ... The State Bar does not admit anyone to the practice of law, it does not finally disbar or suspend anyone, and it does not ultimately establish ethical codes of conduct. All of those functions are reserved by California law to the State Supreme Court. ...
There is, by contrast, a substantial analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of employee unions and their members, on the other. ...
But the very specialized characteristics of the State Bar of California discussed above serve to distinguish it from the role of the typical government official or agency. Government officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. ...
The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers. Keller v. State Bar of California (1990), 496 U.S. 1, 11-14.

7.e. The California Constitution (2001), article 6, � 23 reads (emphasis added):

(a) The purpose of the amendments to Sections 1, 4, 5, 6, 8, 10, 11, and 16, of this article, and the amendments to Section 16 of Article I, approved at the June 2, 1998, primary election is to permit the Legislature to provide for the abolition of the municipal courts and unify their operations within the superior courts.
Notwithstanding Section 8 of Article IV, the implementation of, and orderly transition under, the provisions of the measure adding this section may include urgency statutes that create or abolish offices or change the salaries, terms, or duties of offices, or grant franchises or special privileges, or create vested rights or interests, where otherwise permitted under this Constitution.
(b) When the superior and municipal courts within a county are unified, the judgeships in each municipal court in that county are abolished and the previously selected municipal court judges shall become judges of the superior court in that county. The term of office of a previously selected municipal court judge is not affected by taking office as a judge of the superior court. The 10-year membership or service requirement of Section 15 does not apply to a previously selected municipal court judge. Pursuant to Section 6, the Judicial Council may prescribe appropriate education and training for judges with regard to trial court unification.
(c) Except as provided by statute to the contrary, in any county in which the superior and municipal courts become unified, the following shall occur automatically in each preexisting superior and municipal court:
(1) Previously selected officers, employees, and other personnel who serve the court become the officers and employees of the superior court.
(2) Preexisting court locations are retained as superior court locations.
(3) Preexisting court records become records of the superior court.
(4) Pending actions, trials, proceedings, and other business of the court become pending in the superior court under the procedures previously applicable to the matters in the court in which the matters were pending.
(5) Matters of a type previously within the appellate jurisdiction of the superior court remain within the jurisdiction of the appellate division of the superior court.
(6) Matters of a type previously subject to rehearing by a superior court judge remain subject to rehearing by a superior court judge, other than the judge who originally heard the matter.
(7) Penal Code procedures that necessitate superior court review of, or action based on, a ruling or order by a municipal court judge shall be performed by a superior court judge other than the judge who originally made the ruling or order.

7.g. A reasonable inference is that the "superior courts" are now Administrative Agencies.

8.a. The California Constitution (2001), art. 6, � 6, enumerates the members of, but does not seem to explicitly create, The Judicial Council and reads (in part):

The Judicial Council consists of the Chief Justice and one other judge of the Supreme Court, 3 judges of courts of appeal, 5 judges of superior courts, 5 judges of municipal courts, 2 nonvoting court administrators, and such other nonvoting members as determined by the voting membership of the council, each appointed by the Chief Justice for a 3-year term pursuant to procedures established by the council; 4 members of the State Bar appointed by its governing body for 3-year terms; and one member of each house of the Legislature appointed as provided by the house. Vacancies in the memberships on the Judicial Council otherwise designated for municipal court judges shall be filled by judges of the superior court in the case of appointments made when fewer than 10 counties have municipal courts. ...

8.c. It is a reasonable inference that The State of California has not, to date, explicitly created the entity usually called The Judicial Council and that said entity is not a part of California government.

9.a. Without Discovery, I currently do not have specific facts sufficient to develop this Point.

9.b. For example, from the information at this website American Association of Motor Vehicle Administrators (as of October, 13, 2001), I can infer a treaty, etc. between The United States and Canada legitimately affecting international Commercial Carriers.

To the extent to which the instant court, of its own knowledge, purports to be sitting as an Administrative Agency and the prosecution has introduced no valid nexus which falls within the subject matter jurisdiction of a California Administrative Agency, I respectfully suggest that the court make all and every effort(s) available to it upon its own motion to terminate this proceeding in respect to me in a timely manner.

18 U.S.C.A (2001) � 912 reads:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

Signed: __________________________________________________

Dated: ________________________________________

at: ___________________________________________