I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Tuesday, October 10, 2006

Judge Jones' lame excuses

The Lutheran magazine, in an article reporting an interview of Judge John E. "I am not a lousy judge" Jones III, said,

Some critics thought Jones went too far in ruling on whether intelligent design is science or not. “Both sides asked me to render a decision on that precise issue,” he said. “Had I not done so, there was every chance that this same issue would have arisen before another tribunal."

How could a federal judge be so ignorant -- or pretend to be so ignorant -- of basic judicial principles? A judge is not required to rule on something just because both sides asked for a ruling. And judges are not supposed to make rulings just for the purpose of allegedly saving other courts the possible task of judging the same issue in the future. And if the issue comes up again in another court, that other court would have to rule independently on the issue anyway because the Dover decision is not controlling precedent.

“I didn’t think a school district somewhere else should be exposed to the costs and fees that the Dover School District ended up paying (more than $1 million) as a result of my ducking that issue.”

I am sure that you have the everlasting gratitude of other school districts.

There is an easier way of preventing school districts from getting ripped off like this in the future: a bill -- which recently passed the House by a large margin -- that would prohibit the award of attorney fees to winning plaintiffs in establishment clause cases.

You could have followed the precedent of Edwards v. Aguillard, where the Supreme Court approved the district court judge's refusal to hear expert witness testimony on the grounds that such testimony would not have illuminated the purposes of legislators. I believe that some of the Dover school board members said that they did not even need to understand intelligent design themselves because it was not actually being taught to the students.

John, you are able to bullshit ignoramuses like Ed Brayton but you can't bullshit me because I know how the courts operate -- judges couldn't care less about saving the litigants or the courts any time, money, and trouble. I remember one environmental lawsuit where the plaintiffs failed to give the federal and state governments a required 60-days notice of intent to sue. The plaintiffs corrected that defect by giving the required 60-days notice after the lawsuit had commenced and the district court later ruled against the defendant. However, the appeals court dismissed the case because the 60-days notice had not been given prior to filing the lawsuit, and the Supreme Court upheld that dismissal! See Hallstrom v. Tillamook County, 493 U.S. 20 (1989). The dissenters on the Supreme Court said, "The Court fails to recognize ... that there is no necessary connection between a violation of that statute [the statute requiring 60-days notice] and any particular sanction for noncompliance."

Jones said critics should “read the court transcript” rather than making an “abstract” critique.

So you are saying that your critics should read through six weeks of courtroom testimony before criticizing your decision? That's absurd.

They make much of my being a Republican judge who didn’t rule the way they would like.

Wrong. It is mostly the decision's supporters who have made much of your being a "conservative church-going Republican" who didn't rule the way that the decision's opponents would like.

Anyway, John, it looks like you have plumb run out of excuses.

Labels:

48 Comments:

Anonymous Voice In The Wilderness said...

> There is an easier way of preventing school districts from getting ripped off like this in the future: <

Yes. School districts should not be so irresponsible as to file cases that they know they will lose. They knew that they were disobeying the law. It was criminal behavior on the part of the board.

> you can't bullshit me because I know how the courts operate <

That’s why you have a perfect record. Everything that you ever filed was laughed out of court.

Let’s face it, Larry. There is nobody we can point to with a more distinguished record of failure in legal cases. Perhaps that is because you haven’t a clue.

Tuesday, October 10, 2006 8:17:00 PM  
Anonymous Voice In The Wilderness said...

> you can't bullshit me because I know how the courts operate <

I have thought of a new appropriate name for you, the Court Jester.

Wednesday, October 11, 2006 6:12:00 AM  
Blogger Larry Fafarman said...

Voice In The Wilderness said --
>>>>>> There is an easier way of preventing school districts from getting ripped off like this in the future: <

Yes. School districts should not be so irresponsible as to file cases that they know they will lose. They knew that they were disobeying the law. It was criminal behavior on the part of the board. <<<<<<

VIW, by your standards, the Tangipahoa Parish school board was engaging in "criminal" behavior, but the Freiler v. Tangipahoa Parish case came within one vote of being granted an en banc (full court) appeals court rehearing and within one vote of being granted certiorari by the Supreme Court. In both cases, dissenting judges wrote long opinions.

>>>>>There is nobody we can point to with a more distinguished record of failure in legal cases. <<<<<

How do you know what my record in legal cases is?

Also, one learns the most by taking on the weak cases. You don't learn much by taking on the easy ones.

VIW strikes out again.

Wednesday, October 11, 2006 7:35:00 AM  
Anonymous Voice In The Wilderness said...

> How do you know what my record in legal cases is? <

It is public knowledge. I have explained before how I came to know about it but you were asleep as usual. That is still on this blog but I will leave it to you to find it. The bottom line is that you have been an unmatched failure in your legal career but did provide a bit of comic relief to your opponents.

> Also, one learns the most by taking on the weak cases. <

But you show that you haven't learned anything. On the other hand your choices of supporting creationism and blithering about the holocaust may show that you intentionally chose losing sides.

The court jester strikes out again. Better luck next time.

Wednesday, October 11, 2006 8:32:00 AM  
Blogger Larry Fafarman said...

Voice In The Wilderness said...

>>>>>> How do you know what my record in legal cases is? <

It is public knowledge. I have explained before how I came to know about it but you were asleep as usual. <<<<<<

As usual, VIW is so full of crap that it's coming out his ears. A lot of cases are not even posted on the Internet -- particularly old ones. Others are hard to find even if you know where to look -- which you don't.

Wednesday, October 11, 2006 1:13:00 PM  
Blogger JanieBelle said...

"Wrong. It is mostly the decision's supporters who have made much of your being a "conservative church-going Republican" who didn't rule the way that the decision's opponents would like."

Only AFTER the decision, Larry. The fundy nutjobs over at UD (you included) were positively SALIVATING at having drawn Judge John E. "appointed by King George" Jones III BEFORE the decision.

You can't wish that away any more than you can wish away the Holocaust.

Thursday, October 12, 2006 11:05:00 AM  
Anonymous Voice In The Wilderness said...

> A lot of cases are not even posted on the Internet -- particularly old ones. <

I never said that they were.

> Others are hard to find even if you know where to look -- which you don't. <

Any case filed in the last 30 years or more is quite easy to find if you know where to look -- which you don't.

I have already said where I found the cases and why I happened to know about it in the first place. I will not bother to repeat it but it is still here posted on your blog.

Why do you continue to make yourself look like the pathetic clown that you do. You are so devoid of common sense, combined with a complete ignorance of the law, that you nave never, and will never win an argument about law, let alone break you unbroken record of having your lawsuits laughed out of court.

Keep it up, dumbshit. We are rolling in the isles.

Thursday, October 12, 2006 3:40:00 PM  
Anonymous W. Kevin Vicklund said...

>>>A judge is not required to rule on something just because both sides asked for a ruling. And judges are not supposed to make rulings just for the purpose of allegedly saving other courts the possible task of judging the same issue in the future. And if the issue comes up again in another court, that other court would have to rule independently on the issue anyway because the Dover decision is not controlling precedent.<<<

To the contrary: a judge, assuming no jurisdictional barriers exist (such as standing), is supposed to rule on the controversies brought before him - every example Larry has given us so far of a judge not issuing a ruling was a result of some jurisdictional barrier. One of the considerations often used in a decision and in the interpretation of a law is the prudent use of judicial resources in this and future cases. In fact, Larry links to one such case later on! The whole point of caselaw, after all, is to a) save resources by not having to reach the same conclusion de novo every time an issue arises, b) establish a consistent set of rules, and c) discourage future actions that the courts have ruled against. Otherwise, we would throw precedence out the door and decide every case without reference to any other case. Sounds like chaos, eh? As far as the specific Dover ruling, although it does not have binding or mandatory precedence, it does have persuasive evidence. The distinction is thus: binding precedence forces a court to follow that previous ruling, whereas persuasive precedence only acts as a guide. A district court decision can't be binding, and is less persuasive than a circuit or supreme court decision. However, if the district court decision is the highest level a particular issue has advanced to, it is the most persuasive. So a comprehensive and clear ruling like the one by Jones (Larry's inability to understand legal language does not make it any less clear to the sane portion of the population) serves several purposes. It addresses all the issues raised by the parties, it discourages others from trying a tactic that the evidence clearly shows would be unconstitutional, and it provides future courts with a persuasive summary of caselaw so that fewer resources need to be used in the event that a similar suit arises. Of course, the ruling on whether ID is science was necessary to determine whether the endorsement test was violated, and 3rd Circuit binding precedence is that the endorsement test gets considered first.

>>>There is an easier way of preventing school districts from getting ripped off like this in the future: a bill -- which recently passed the House by a large margin -- that would prohibit the award of attorney fees to winning plaintiffs in establishment clause cases.<<<

Because only rich people deserve to have their civil rights protected, after all. We need to punish those poor people! /sarcasm

>>>You could have followed the precedent of Edwards v. Aguillard, where the Supreme Court approved the district court judge's refusal to hear expert witness testimony on the grounds that such testimony would not have illuminated the purposes of legislators.<<<

Well, I guess it's a good thing that the expert witness testimony was not offered to illuminate the purposes of the legislators. Rather, it was offered for effect and endorsement, which the court in Edwards indicated was the proper use of expert testimony. And again, note that by binding precedent, Judge Jones had to consider endorsement before purpose.

>>>John, you are able to bullshit ignoramuses like Ed Brayton but you can't bullshit me because I know how the courts operate -- judges couldn't care less about saving the litigants or the courts any time, money, and trouble. I remember one environmental lawsuit where the plaintiffs failed to give the federal and state governments a required 60-days notice of intent to sue. The plaintiffs corrected that defect by giving the required 60-days notice after the lawsuit had commenced and the district court later ruled against the defendant. However, the appeals court dismissed the case because the 60-days notice had not been given prior to filing the lawsuit, and the Supreme Court upheld that dismissal! See Hallstrom v. Tillamook County, 493 U.S. 20 (1989). The dissenters on the Supreme Court said, "The Court fails to recognize ... that there is no necessary connection between a violation of that statute [the statute requiring 60-days notice] and any particular sanction for noncompliance."<<<

Ah, such selective memory/reading we have, Larry. Let's look at where you first learned about Hallstrom: the EPA's reply brief in a 9th Circuit case known as Fafarman v. California:

1. Fafarman Failed To Provide The Required Notice Prior To Bringing His Action. -- To the extent that Appellant alleges that EPA has failed to perform a non-discretionary duty under the Act or has unreasonably delayed agency action, his claim is governed by section 304, the CAA's citizen suit provision. That section required him to provide notice to the Agency in prescribed fashion, i.e., 60 days before bringing an action alleging failure to perform a non-discretionary duty, or 180 days before bringing an action alleging an unreasonable delay. 42 U.S.C. § 7604(a) & (b).
The United States Supreme Court has strictly enforced notice provisions such as the one found in section 304. In Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989), the Court held that the notice requirement contained in the Resource Conservation and Recovery Act ("RCRA") is a mandatory precondition to initiating a citizen suit. In that case, the Supreme Court addressed the 60-day notice requirement in subsection (b)(1) of RCRA's citizen suit provision. 42 U.S.C. § 6972(b)(1). The Court found that the failure of a *14 party to comply with the provision's notice and waiting period requires a district court to dismiss the action for lack of jurisdiction. Id. at 31. [FN6] Accord Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). According to the Supreme Court:

FN6. The Court identified two important purposes served by the notice provision. First, notice to EPA and the state allow the regulatory agencies to take enforcement action if appropriate. Id. at 29. Second, notice gives the alleged violator an opportunity to bring itself into compliance with
the environmental standards. Id. In either event, litigation becomes unnecessary.

The language of this provision could not be clearer. A citizen may not commence an action under RCRA until 60 days after the citizen has notified the EPA, the State in which the alleged violation occurred, and the alleged violator. Actions commenced prior to 60 days after notice are "prohibited." Because this language is expressly incorporated by reference in § 6972(a), it acts as a specific limitation on a citizen's right to bring suit. Under a literal reading of the statute, compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit... Therefore, we hold that the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a district court may not disregard these requirements at its discretion
Hallstrom, 493 U.S. at 26, 31.
While Fafarman corresponded with EPA prior to filing his complaint, he never notified the Agency of any claim of unreasonable delay, a breach of a nondiscretionary duty by EPA, or of his intent to file a lawsuit under section *15 304(a). Because Appellant did not provide the notice required in section 304, the Court lacks jurisdiction over this matter.


The purpose of the 60 day waiting period is to allow the violator to come into compliance and give the regulatory agencies a chance to enforce compliance, without dragging the courts into the mess. If compliance is achieved before the 60 days are up, no litigation can proceed. The Supreme Court acknowledged that in making their decision, a certain amount of resources were wasted in the case at hand, but that it will save future courts' resources by making clear precedence so that case-by-case decisions do not have to be made. The proper remedy for not meeting the 60-day waiting period is to refile 60 days after giving notice. So contrary to Larry's assertions, the courts do care, though sometimes to the detriment of the current case.

>>>So you are saying that your critics should read through six weeks of courtroom testimony before criticizing your decision? That's absurd.<<<

Isn't your motto "I'm from Missouri...you'll have to show me"? He is showing it to you, in the transcripts, unadulterated by his opinions and biases. How hypocritical of you to claim it absurd that you should be expected to examine the evidence shown to you. But that's typical Larry - claim you need to be shown something, then stick your fingers in your ears, screw your eyes shut, and yell "La la la la la" to avoid having to admit you were shown something. If you want to criticize the conclusions he reached based on the evidence, you need to know what the evidence was - and that is in the court transcripts. If, on the other hand, you merely want to criticize his procedures, you have to review the precedences that he used and had to apply - which means reading the decision and the precedences to see whether he applied them properly. If you do that, then Judge Jones acknowledges that your critique is valid (though not necessarily correct, mind you). If you try to criticize him because of politics or polls, he doesn't regard that as valid criticism. And he is right. You can't give a proper critique unless you have indepth and accurate knowledge of what you are critiquing. Critiquing is not for lazy people. Something Larry refuses to understand.

Thursday, October 12, 2006 6:53:00 PM  
Anonymous W. Kevin Vicklund said...

>>>>>>>>> How do you know what my record in legal cases is? <<<

>>>>>>It is public knowledge. I have explained before how I came to know about it but you were asleep as usual. <<<

>>>As usual, VIW is so full of crap that it's coming out his ears. A lot of cases are not even posted on the Internet -- particularly old ones. Others are hard to find even if you know where to look -- which you don't.<<<

As evidenced above, Larry's cases are indeed available to the public, and if you know the right place to look, you can even get some of them on the web. Looks like Larry's the one fountaining excrement through his aural orifices.

Let's take a look at his failures in the Federal Courts.

On October 13, 1995, he filed Fafarman v. California in the Central District of California. On February 12, 1996, Judge Hatter granted the motion to summarily dismiss for lack of subject matter jurisdiction. On March 8, 1996, he appealed to the 9th Circuit. A brief by Larry (May 9, 1996), a reply brief each from the EPA (July 29, 1996)and California (August 5,1996), and a reply brief to each reply brief (August 7,1996 and September 9, 1996) later, Judges Sneed, Trott, and Thomas unanimously decided no oral argument was required and upheld the district court's decision on December 20, 1996. The Supreme Court denied certiorari October 6, 1997.

Larry also submitted a claim directly to the 9th Circuit Court, Fafarman v. EPA, Docket 96-70179. This claim was dismissed April 12, 1996 for lack of subject matter jurisdiction.

Not leaving any stone unturned, Larry also filed several motions in the DC Circuit, collectively known as Fafarman v. EPA (yeah, I know, both are the same name - deal with it). The details are complicated, but among other things he attempted to consolidate and/or untimely intervene in other cases. On April 25, 1997, Judges Wald, Williams, and Tatel dismissed part of his case, denied intervention, denied consolidation (but scheduled the other cases for hearing on the same day), denied a preliminary injunction, denied a deferral on briefing, and gave him 30 days to show cause as to why the remainder of his case shouldn't be summarily dismissed. On June 30, 1997, Judges Wald, Rogers, and Tatel summarily dismissed the remainder of his case. His suggestion for rehearing en banc was denied August 28, 1997. The Supreme Court denied certiorari December 8, 1997.

But wait, there's more! Larry filed suit again in the Central District Court. Judge Hatter dismissed the case res judicata. On July 8, 1998, he appealed to the 9th Circuit. On January 21, 1999, agfter unanimously denying oral arguments, Judges Beezer, Kleinfeld, and Hawkins upheld the District Court's decision, with the following smackdown:

Contrary to Fafarman's contention, our order dismissing Fafarman's petition for review in Fafarman v. EPA, No. 96-70179, did not confer jurisdiction upon the district court.

3+ years, 4 federal court cases, at least 11 federal judges, and every motion that wasn't a leave to file was summarily dismissed. Talk about utter failure!

Thursday, October 12, 2006 8:16:00 PM  
Blogger Larry Fafarman said...

Kevin,
>>>>>4 federal court cases <

Quoting one opinion:

"Contrary to Fafarman's contention, our order dismissing Fafarman's petition for review in Fafarman v. EPA, No. 96-70179, did not confer jurisdiction upon the district court." <<<<<

Why don't you post the other opinions in those cases, Kevin? District court judge Terry "Mad" Hatter never gave any opinions at all -- they were just complete blanks (an attorney acquaintance of mine said that Hatter had a bad reputation for doing that). The 9th circuit appeals court mostly gave either no opinions or trivial opinions. The reason why I pursued these cases for so long was that I was pissed because often the judges gave no evidence that they had even read the briefs at all. Certainly if Calif. and the EPA had such a strong case, the judges could have easily found something in the Cal. and EPA briefs to justify dismissing my suits. Anyway, it was a good experience because I learned a hell of a lot along the way -- you don't learn much by choosing the easy cases. My experience gained is what counts here, and not whether I won or lost the suits. Your own total lack of legal experience is quite evident from your statements on this blog.

I was right about the smog impact fee being unconstitutional -- it was struck down in state courts.

BTW, here is a 49-page opinion from the EPA that is mostly a response to my complaints about the smog impact fee.

Thursday, October 12, 2006 9:13:00 PM  
Blogger Larry Fafarman said...

Furthermore, I would add, Kevin, that arguing that an opposing attorney does not have a good record of winning cases would not go very far in court.

Thursday, October 12, 2006 9:23:00 PM  
Anonymous Voice In The Wilderness said...

> But that's typical Larry - claim you need to be shown something, then stick your fingers in your ears, screw your eyes shut, and yell "La la la la la" to avoid having to admit you were shown something. <

You couldn't have the imbecile pegged more accurately. He has been shown again and again where he is wrong but still claims that we don't attack his position directly. He will consider your learned treatise as only an ad-homonym attack. He still doesn't know what ad-homonym means although he uses the term daily..)

> The details are complicated, but among other things he attempted to consolidate and/or untimely intervene in other cases. <

His attempts to intervene in the cases of others brought great joy to his opponents. They saw him as a bull in a China shop to his own side.

> 3+ years, 4 federal court cases, at least 11 federal judges, and every motion that wasn't a leave to file was summarily dismissed. Talk about utter failure! <

He didn't do that much better in his engineering career. That is why he is now unemployable and living on the charity of his elderly parents.

Thursday, October 12, 2006 9:48:00 PM  
Anonymous Voice In The Wilderness said...

> Hatter never gave any opinions at all <

He did not have to. It is a shame that you can't understand his decision. It seems quite clear to the sane.

> an attorney acquaintance of mine <

You have never been within 10 feet of an attorney except during your pathetic suits.

> The 9th circuit appeals court mostly gave either no opinions or trivial opinions. <

Again they gave them but you failed to understand. Kevin's description of you covering your ears and yelling "La la la la la" to avoid hearing is perfectly demonstrated here.

> I was pissed because often the judges gave no evidence that they had even read the briefs at all. <

Is there anyone else on this planet besides the imbecile himself who doesn't understand the judges' findings?

> the judges could have easily found something in the Cal. and EPA briefs to justify dismissing my suits. <

It was unnecessary. Why gild the lily? They had you cold already.

> Anyway, it was a good experience because I learned a hell of a lot along the way <

You have shown no evidence that you have learned anything. You still know less about law than does the average coconut.

> Your own total lack of legal experience is quite evident from your statements on this blog. <

Kevin's experience is quite evident. Your lack of knowledge is even more evident.

This is not brain surgery. The judges' findings could not have been more clear. Most eight year olds in Sherry D's class could explain them. I'm sorry that they go over your head.

> Furthermore, I would add, Kevin, that arguing that an opposing attorney does not have a good record of winning cases would not go very far in court. <

It would not be an issue in court that you are bald. Kevin is not bringing up your pathetic record of failure as evidence in court. He is only observing a fact. It would be difficult to find anyone with a poorer record in court. You could not likely prove that the Sun rises in the East with your ignorance of the law and lack of debating skills.

Thursday, October 12, 2006 10:02:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said --

>>>>>> a judge, assuming no jurisdictional barriers exist (such as standing), is supposed to rule on the controversies brought before him <<<<<<

Wrong -- judges often choose to rule on narrow grounds. No one could predict whether or not Jones would rule on the scientific merits of ID.

>>>>> Let's look at where you first learned about Hallstrom: the EPA's reply brief in a 9th Circuit case known as Fafarman v. California <<<<<<

I am not aware of this brief being available on the Internet, and IMO it is unethical of a government entity to post a brief without at least also posting the opposing briefs.

Anyway, I never sued under the statute identified by the EPA and it was not the only applicable statute, so the 60-day notice requirement did not apply to the case.

>>>>> The purpose of the 60 day waiting period is to allow the violator to come into compliance and give the regulatory agencies a chance to enforce compliance, without dragging the courts into the mess. <<<<<<

The defendant in the Hallstrom case shared the blame of prematurely "dragging the courts into the mess" because this defendant failed to promptly raise the issue of the 60-day notice requirement. The timeline of the case shows that there was a big delay in raising this issue:

In April 1981, believing that the landfill operation violated standards established under RCRA, petitioners sent respondent written notice of their intention to file suit. A year later, petitioners commenced this action. On March 1, 1983, respondent moved for summary judgment on the ground that petitioners had failed to notify Oregon's Department of Environmental Quality (DEQ) and the EPA of their intent to sue, as required by 6972(b)(1). Respondent claimed that this failure to comply with the notice requirement deprived the District Court of jurisdiction. On March 2, 1983, petitioners notified the agencies of the suit. -- from Hallstrom v. Tillamook County

Therefore, this long delay in raising the issue could have been a case of deliberate entrapment exploiting the FRCP Rule 12(h)(3) loophole, which says, "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." In Hallstrom, the Supreme Court gave its approval of entrapment involving delayed raising of the issue of the 60-day notice requirement -- and possibly also involving delayed raising of the issue of any statutory prerequisite for suit. Also, it is obvious that the judge himself was either not aware of the 60-day notice requirement or did not notice the noncompliance with the requirement, because otherwise under FRCP Rule 12(h)(3) he was obligated to raise the issue himself! So the judge too was to blame!

Also, the state and the EPA did not act anyway, so it made no real difference whether the 60-day notice was given before the suit was filed or after. And as the dissenters in Hallstrom v. Tillamook County observed, "The Court fails to recognize ... that there is no necessary connection between a violation of that statute [the statute requiring 60-days notice] and any particular sanction for noncompliance."

As for the 60-days notice serving the purpose of giving "the alleged violator an opportunity to bring itself into compliance with
the environmental standards," the defendant in the Hallstrom case got a year's notice, not just 60 days notice.

>>>>> If you want to criticize the conclusions he reached based on the evidence, you need to know what the evidence was - and that is in the court transcripts. <<<<<<

Appeals court judges who review cases normally don't go through the complete transcripts of the courtroom testimony -- so why should I ?

>>>>. If, on the other hand, you merely want to criticize his procedures, you have to review the precedences that he used and had to apply - which means reading the decision and the precedences to see whether he applied them properly. <<<<<

I have reviewed a lot of his procedures and the precedents and other authorities that he used for them and concluded in many cases that he did not apply the authorities properly. An example was one of the reasons he gave for denying FTE's motion to intervene: FTE's interests were "purely economic."

Kevin's arguments get smacked down again.

Friday, October 13, 2006 12:37:00 AM  
Anonymous Voice In The Wilderness said...

> I am not aware of this brief being available on the Internet <

You are not aware of the Sun rising and setting. You are not aware that you have placed a sign on your back that says "Kick Me".

> and IMO it is unethical of a government entity to post a brief without at least also posting the opposing briefs. <

You are missing the point. Perhaps I can give an analogy of your idiotic argument that the judge did not comment on your absurd complaint: A man has just jumped in front of a steamroller and his body has been brought into the hospital by the paramedics. The doctor checks the pancake like carcass and observes that there is no heartbeat, and the body is cold. He declares the patient dead.

Larry(?) shows up in the afterlife (wherever that may be for him) and immediately protests that the doctor said nothing about his baldness and what could be done to prevent further hair loss.

> it was not the only applicable statute <

It was the only one necessary. It very conclusively shut down your case so it was not necessary for the judge to rub your nose in the many other flaws of your pathetic effort.

> The defendant in the Hallstrom case shared the blame of prematurely "dragging the courts into the mess" because this defendant failed to promptly raise the issue of the 60-day notice requirement. <

It was not necessary. The opponent is under no obligation to try to educate you on basic law. they probably enjoyed seeing you flop around before sinking. Allowing one's opponent to walk off of a cliff is not entrapment.

> So the judge too was to blame! <

Sure. Everyone except the imbecile who made the mistake to begin with.

> Appeals court judges who review cases normally don't go through the complete transcripts of the courtroom testimony -- so why should I ? <

A second doctor also found that the flat carcass was dead. He failed to check for signs of food poisoning.

> I have reviewed a lot of his procedures and the precedents and other authorities that he used for them and concluded in many cases that he did not apply the authorities properly. <

This shows that your conclusions there are no better than your conclusions here.

> Kevin's arguments get smacked down again. <

Again? The Court Jester has never beaten Kevin in an argument. There is no evidence that you have ever won an argument in your life.

I have figured it out. Larry(?) is actually Ed Brayton. He is deliberately making a fool of himself under this pseudonym to make the creationists look bad.

Friday, October 13, 2006 6:07:00 AM  
Blogger Larry Fafarman said...

VIW continues to dishonorably take advantage of my no-deletions policy by cluttering up my blog with his breathtakingly inane insults and ad hominems.

Friday, October 13, 2006 6:38:00 AM  
Anonymous homonym is not a homonym said...

Main Entry: hom·onym
Pronunciation: 'hä-m&-"nim, 'hO-
Function: noun
Etymology: Latin homonymum, from Greek homOnymon, from neuter of homOnymos
1 a : HOMOPHONE b : HOMOGRAPH c : one of two or more words spelled and pronounced alike but different in meaning (as the noun quail and the verb quail)
2 : NAMESAKE
3 : a taxonomic designation rejected as invalid because the identical term has been used to designate another group of the same rank -- compare SYNONYM

Friday, October 13, 2006 10:17:00 AM  
Blogger Larry Fafarman said...

BTW, Kevin, the statute at issue, 42 USC § 6972(b)(1), under "Citizen Suits," does not require 60-days notice of intent to sue, but only requires 60-days notice of the violation --

No action may be commenced under subsection (a)(1)(A) of this section—
(A) prior to 60 days after the plaintiff has given notice of the violation to —
(i) the Administrator [i.e., the US EPA]
(ii) the State in which the alleged violation occurs; and
(iii) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order,

except that such action may be brought immediately after such notification in the case of ....... ; or
(B) if the Administrator or State has commenced and is diligently prosecuting ......


60-days notice of intent to actually sue is required only when the plaintiff sues the "Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator."

The opinion in Hallstrom v. Tillamook County erroneously stated, "At least 60 days before commencing suit, plaintiffs must notify the alleged violator, the State, and the Environmental Protection Agency (EPA) of their intent to sue. 42 U.S.C. 6972(b)(1)."

By common sense, the plaintiff should have sought an administrative remedy before filing suit. And even if there had been no 60-day notice requirement, the judge should have immediately asked whether the plaintiff sought an administrative remedy and -- if so -- what the results were. Also, under FRCP Rule 12(h)(3), the judge was obligated to bring up the 60-day notice requirement himself if he was aware of it.

BTW, these provisions for vigilante-type "citizen suits," where there is no requirement that the plaintiffs be injured-in-fact, are contrary to the general rule that plaintiffs must be injured-in-fact to have standing to sue.

You weren't just "smacked down" this time, Kevin. You were stomped into the ground.

Sometimes I can even make the Supreme Court look ridiculous. I am very disappointed that Justice O'Connor wrote the majority opinion in Hallstrom -- she used to be my favorite justice.

Friday, October 13, 2006 1:28:00 PM  
Anonymous Voice In The Wilderness said...

> VIW continues to dishonorably take advantage of my no-deletions policy by cluttering up my blog with his breathtakingly inane insults and ad hominems. <

You consider pointing out the flaws in what you allege to be your thinking as an ad hominem attack. You really need to look up the term and stop making a fool of yourself.

You have proven that you can't answer my arguments so you dishonorably reply with insults.

Friday, October 13, 2006 10:47:00 PM  
Anonymous Voice In The Wilderness said...

> You weren't just "smacked down" this time, Kevin. You were stomped into the ground. <

You seem to be the only one to see it that way.

> Sometimes I can even make the Supreme Court look ridiculous. <

If you don't realize that you are delusional, you are a minority of one.

You have stated that you often don't answer your opponent's bullseyes because their arguments don't deserve an answer. Clearly the judges didn't think that your foolishness deserved an answer.

Friday, October 13, 2006 10:52:00 PM  
Blogger Larry Fafarman said...

VIW groaned --
>>>>> Clearly the judges didn't think that your foolishness deserved an answer. <<<<<<

You stupid fatheaded nincompoop, how many times do I have to stomp your lousy butt into the ground before you stop cluttering up this blog with your lousy crap?

Since those lousy judges gave no evidence that they read the briefs, my briefs could just as well have been strokes of legal genius and it would not have made any difference. My first reply brief was in fact a stroke of legal genius -- no, actually, it was an accident. At the time, I knew nothing about how to do legal research, but I just happened to stumble on a precedent that was a perfect answer to California's claim of immunity from tax suits in federal courts. I argued that California lost that immunity in the case of the smog impact fee because the fee was entirely based on federal laws and regulations and the Supreme Court said in Parden v. Terminal Railway of the Alabama State Docks Dept., 377 U.S. 184 (1964) that state immunity from suit in federal court is lost when a state "leaves the sphere that is exclusively its own":

"A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation."

My argument was so strong that California did not even attempt to submit a rebuttal brief, which the state was entitled to do. That fact alone should have caught the attention of judge TJ "Mad" Hatter, but he dismissed my suit without an opinion. So what plaintiff would not be pissed? Anyway, as I said, my lawsuits in the federal courts were a good learning experience -- it was not just a matter of winning or losing.

I think that as a general rule, judges tend to ignore the low-profile cases in order to make more time for dealing with the high-profile cases. Also, judges don't care about the low-profile cases because those cases have little effect on their own reputations or the reputation of the judiciary in general.

Knowing how to sue the government as a pro se litigant ought to be a requirement for graduation from high school.

=================================

"I'm always kicking their butts -- that's why they don't like me! Hahahaha" --- Gov. Arnold Schwazenegger

Saturday, October 14, 2006 2:18:00 AM  
Anonymous Voice In The Wilderness said...

> how many times do I have to stomp your lousy butt into the ground <

You have yet to win an argument. So far all of your responses show you to be the fool that we all know you to be.

> Since those lousy judges gave no evidence that they read the briefs <

They had no need to read them. If a patient is DOA at the hospital, they do not check him out for hemorhoids.

> my briefs could just as well have been strokes of legal genius <

More likely they are the mindless crap that you keep posting here.

> My first reply brief was in fact a stroke of legal genius <

That was just before your defeat at Leipzig after which you were exiled to Elba.

> My argument was so strong that California did not even attempt to submit a rebuttal brief <

Your argument was so week that the state felt no obligation to answer.

> So what plaintiff would not be pissed? <

One who learned from experience. Of course you have not. The more contact you have with the legal system, the more misinterpretations stand in the way of any real knowledge.

> my lawsuits in the federal courts were a good learning experience <

They could have been but you have shown that you learned nothing.

I'm always kicking your butt -- that's why you don't like me! Hahahaha" --- ViW

Saturday, October 14, 2006 9:41:00 AM  
Anonymous Bill Carter said...

> My first reply brief was in fact a stroke of legal genius <

This claim may be quite illuminating to anyone who still believed that Larry(?) was sane. This is nothing. As I have previously stated, the idiot once erupted in a restaurant and began screaming at the startled patrons about how they did not appreciate the great service that he had done for them by fighting the smog fee. He would definitely be better off if he were institutionalized.

> At the time, I knew nothing about how to do legal research <

You still don't. What has changed?

Saturday, October 14, 2006 9:48:00 AM  
Anonymous Anonymous said...

Kevin,

Thank you for again exposing the cretin (as if he didn't do enough in this line by himself).

He doesn't understand what you said. He doesn't understand what the judge said. He doesn't understand what ViW says.

But he thinks that he is winning!

Saturday, October 14, 2006 11:38:00 AM  
Blogger Dave Fafarman said...

< I argued that California lost that immunity in the case of the smog impact fee because the fee was entirely based on federal laws and regulations ... >

Since it appears to me that Larry(?) had at least somewhat of a point here, on what grounds is it argued that he was completely off-base? (Claiming perfect wisdom and justice on the part of the court system won't cut it.)

I'm not that familiar with the details of this case, but in the discussions on this blog, I've seen lots of flame war and little of substance (which I would prefer).

I guess my question is directed toward Kevin, since he seems to best understand this case and is patient in explanation (thanks in advance, Kevin). Is this particular claim an example of "blind pig finding an acorn" or not -- and why?

Thanks.

P.S. I'm not trying to "encourage" Larry(?) in his lawsuits -- I'm on record as urging him to take up stamp collecting.

Saturday, October 14, 2006 12:03:00 PM  
Blogger Larry Fafarman said...

Anon moans --
>>>>> He doesn't understand what the judge said. <<<<<<

You stupid, profoundly retarded idiot -- there was nothing to understand, because the judge said nothing!

>>>>>He doesn't understand what ViW says. <<<<<<

VIW might as well have said nothing.

You lousy trolls are unable to address the issues, so instead you make breathtakingly inane ad hominems.

As I said, a large part of a 49-page opinion written by the EPA responded to the issues I had raised. For example, when I argued that the smog impact fee was not really a "used-car" regulation because it had nothing to do with emissions from used cars but was entirely retroactively based on new-car emissions certifications, the EPA hocus-pocussed that comparatively few cars with federal (as opposed to California) new-car emissions certifications were subjected to the fee!

Saturday, October 14, 2006 12:30:00 PM  
Anonymous Voice In The Urbanness said...

> there was nothing to understand, because the judge said nothing! <

You had your hands over your ears.

> You lousy trolls are unable to address the issues <

We constantly address the issues and, since you are unable to reply, you engage in ad homimems you stupid, profoundly retarded idiot.

Saturday, October 14, 2006 9:32:00 PM  
Blogger Larry Fafarman said...

In a rare moment of candor, Fake Dave said,

>>>>>> I argued that California lost that immunity in the case of the smog impact fee because the fee was entirely based on federal laws and regulations ...<< (October 14, 2006 2:18:56 AM )

Since it appears to me that Larry(?) had at least somewhat of a point here, on what grounds is it argued that he was completely off-base? (Claiming perfect wisdom and justice on the part of the court system won't cut it.) <<<<<<

Neither the state's attorney nor the judge even attempted to answer my above argument, which was based on Supreme Court precedent. There was just silence. Absolute silence.

Except for a breathtakingly inane comment from Voice in the Urbanness, the trolls in this thread have also become silent.

BTW, the attorneys who eventually won the suit against the fee in the state courts also first tried suing in federal court. They dropped the federal suit when they were unable to counter California's claim of immunity from tax suits in federal court.

Monday, October 16, 2006 10:09:00 AM  
Anonymous Voice In The Wilderness said...

> Since it appears to me that Larry(?) had at least somewhat of a point here, on what grounds is it argued that he was completely off-base? <

The case was dead based on his failure to observe the court procedures. Once he was dead, there was no need to comment on the high state of shine on the top of his head.

You strain too far to find the thinnest excuse to give your brother a crumb. Perhaps you believe that it might change his attitude towards you. In this matter you are just as delusional as he is.

> Except for a breathtakingly inane comment from Voice in the Urbanness, the trolls in this thread have also become silent. <

Do you need glasses as well as a hairpiece? There are 29 posts on this thread. The world has gone on. You, sadly, have not. We do notice your silence on other issues and you have never really addressed the points raised here.

Monday, October 16, 2006 5:20:00 PM  
Blogger Larry Fafarman said...

Voice In The Wilderness whined,

<<<<<> Since it appears to me that Larry(?) had at least somewhat of a point here, on what grounds is it argued that he was completely off-base? <

The case was dead based on his failure to observe the court procedures. <<<<<<

What court procedures? Are you talking about the 60-day notice requirement? As I said, that did not apply because I did not sue under one of the "citizen suit" provisions. And if the judge thought that it did apply, he was obligated to tell me so that I could give the required notice and then refile the suit! In Hallstrom v. Tillamook County, the Supreme Court said,

Nor will the dismissal of this action have the inequitable result of depriving petitioners of their "right to a day in court." . . . . Petitioners remain free to give notice and file their suit in compliance with the statute to enforce pertinent environmental standards.

VIW, you and the other trolls have lost big-time here. You are only making yourself look more and more foolish by your futile efforts to defend the actions of the courts.

Your breathtakingly inane comments only make it harder for me to attract serious readers and commenters -- they take one look at your crap and decide to leave. I guess that's the idea.

Monday, October 16, 2006 7:01:00 PM  
Anonymous Voice In The Wilderness said...

> As I said, that did not apply because I did not sue under one of the "citizen suit" provisions. <

The judge disagreed.

> And if the judge thought that it did apply, he was obligated to tell me so that I could give the required notice and then refile the suit! <

The judge is not responsible for wiping your butt for you. He leaves that to your parents. If you don't have the knowledge necessary to operate in court, stay out of court or get competent help.

> VIW, you and the other trolls have lost big-time here. <

Do you claim that while we are winning all of the battles that we are losing the war?

> Your breathtakingly inane comments only make it harder for me to attract serious readers and commenters <

Despite your breathtakingly inane articles you have attracted serious readers and commenters. You should stop ducking our questions.

Of course others take one look at your crap and decide to leave.

Tuesday, October 17, 2006 3:30:00 AM  
Blogger Dave Fafarman said...

< As I said, a large part of a 49-page opinion written by the EPA responded to the issues I had raised. For example, when I argued that the smog impact fee was not really a "used-car" regulation because it had nothing to do with emissions from used cars but was entirely retroactively based on new-car emissions certifications, the EPA hocus-pocussed that comparatively few cars with federal (as opposed to California) new-car emissions certifications were subjected to the fee! >

I hope you had a stronger point than the above -- you were arguing for the other side!

Incidentally, is "hocus pocus" really a verb? M-W says "Yes." How about that? :-)

< In a rare moment of candor, Fake Dave said, >

I beg your pardon?

BTW (aside) -- these !#$% "word verification" strings are getting worse -- 8 characters of gibberish!

Tuesday, October 17, 2006 9:58:00 AM  
Blogger Larry Fafarman said...

Fake Dave said,
< As I said, a large part of a 49-page opinion written by the EPA responded to the issues I had raised. For example, when I argued that the smog impact fee was not really a "used-car" regulation because it had nothing to do with emissions from used cars but was entirely retroactively based on new-car emissions certifications, the EPA hocus-pocussed that comparatively few cars with federal (as opposed to California) new-car emissions certifications were subjected to the fee! >(emphasis added by Fake Dave)

I hope you had a stronger point than the above -- you were arguing for the other side! <<<<<

How was I arguing for the other side? One of the EPA's defenses was that it had no jurisdiction because the fee was supposedly a used-vehicle regulation (the courts allow the states limited power to regulate used-vehicle emissions) -- but I pointed out that the fee had nothing to do with used-vehicle emissions but was entirely retroactively based on a vehicle's new-car emissions certification -- California or federal. If it were shown that a federal car's emissions controls were exactly the same as -- or even superior to -- a comparable California car's, the fee could still not be avoided. The car could be converted to a zero emissions electric vehicle and the fee would still be charged, because the fee was entirely based on the new-vehicle emissions certification label. All in-use cars -- California and federal -- are required to pass the same smog checks in California. Emissions controls on California cars and federal cars of the same year and model are usually identical or nearly identical. One of the main ideas behind the federal emissions laws' "California waiver" provision -- authorizing the EPA to allow California to have its own emissions regulations -- was to use California as a "testing area" for new emissions control technologies and equipment, which would then be incorporated into the national fleet. Congress recognized the high mobility of motor vehicles as well as air pollution and never intended to allow high-pollution vehicles to be sold in the US and then perhaps be introduced to smoggy places like California.

The state appeals court decision on the smog impact fee said,

In support of their motion for summary judgment, plaintiffs offered the declaration of Thomas Austin, a former executive officer of the California Air Resources Board and now a partner in a consulting firm specializing in air pollution . . . . he opined that the California waiver [granted by the US Environmental Protection Agency] did not cover the motor vehicle smog impact fee and a separate waiver would be required. pages 8-9

So as I argued, there was not just the question of a constitutional violation but there was also a question of whether federal auto emissions regulations administered by the US EPA had been violated, and the US EPA was therefore a necessary party to the suit and it was therefore necessary to sue in a federal court.

The law that generally bars state tax suits in federal courts is called the Tax Injunction Act, and in my opinion it is unconstitutional and should be either repealed or struck down by the courts.

As you can see, I devoted a tremendous amount of time and effort and a fair amount of money to fighting this abominable fee from hell. I should not have wasted my time with the lousy courts -- I found out later that fighting the fee through the Internet was much more effective.

>>>>> BTW (aside) -- these !#$% "word verification" strings are getting worse -- 8 characters of gibberish! <<<<<<

I had to introduce word verfication because I had a bad spam attack a while back.

Tuesday, October 17, 2006 10:03:00 PM  
Anonymous W. Kevin Vicklund said...

>>>Wrong -- judges often choose to rule on narrow grounds. No one could predict whether or not Jones would rule on the scientific merits of ID.<<<

Anyone familiar with the existing 3rd Circuit precedents could have predicted that Jones would have to rule on the scientific merits. Additionally, anyone familiar with Jones's existing jurisprudence (either in previous aspects of this case or in other cases) could have predicted his thoroughness. Appellate courts often do rule on narrow grounds, true; but that is because that is the controversy brought before them.

>>>I am not aware of this brief being available on the Internet, and IMO it is unethical of a government entity to post a brief without at least also posting the opposing briefs.<<<

Well, now you are aware that it is available. You seem to use your ignorance as a shield. We are not Ravenous Bugblatter Beasts of Traal, so stupid as to believe if you can't see something, we can't see it either. And while it may or may not be ethical for a government entity to post a brief without posting the opposing brief, your idiotic assumption is without merit - your briefs are also posted in all their glorious idiocy.

>>>Anyway, I never sued under the statute identified by the EPA and it was not the only applicable statute, so the 60-day notice requirement did not apply to the case.<<<

The statute that you attempted to sue under specifically states The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute. Therefore, the 60-day notice requirement does apply. (For those that have not gone to the trouble of obtaining Larry's briefs, he tried to argue that the statutory review proceeding was inadequate and thus not subject to the above requirement - the courts rightly rejected this argument). It also specifically does not convey standing where standing would be otherwise barred by another statute.

>>> The defendant in the Hallstrom case shared the blame of prematurely "dragging the courts into the mess" because this defendant failed to promptly raise the issue of the 60-day notice requirement. The timeline of the case shows that there was a big delay in raising this issue:

In April 1981, believing that the landfill operation violated standards established under RCRA, petitioners sent respondent written notice of their intention to file suit. A year later, petitioners commenced this action. On March 1, 1983, respondent moved for summary judgment on the ground that petitioners had failed to notify Oregon's Department of Environmental Quality (DEQ) and the EPA of their intent to sue, as required by 6972(b)(1). Respondent claimed that this failure to comply with the notice requirement deprived the District Court of jurisdiction. On March 2, 1983, petitioners notified the agencies of the suit. -- from Hallstrom v. Tillamook County

Therefore, this long delay in raising the issue could have been a case of deliberate entrapment exploiting the FRCP Rule 12(h)(3) loophole, which says, "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." In Hallstrom, the Supreme Court gave its approval of entrapment involving delayed raising of the issue of the 60-day notice requirement -- and possibly also involving delayed raising of the issue of any statutory prerequisite for suit. Also, it is obvious that the judge himself was either not aware of the 60-day notice requirement or did not notice the noncompliance with the requirement, because otherwise under FRCP Rule 12(h)(3) he was obligated to raise the issue himself! So the judge too was to blame!<<<

Ah, yes, when losing an argument, invoke the conspiracy theory. Why assume mendacity when ignorance explains just as well? The plaintiffs filed suit and claimed to have met all the requirements for standing. Neither the court nor the plaintiffs had any way of knowing whether the approriate authorities had been notified, short of verifying with those authorities. The court is under no obligation to check with those authorities, and the defendants had no reason to believe that the plaintiff's lawyers hadn't followed their due diligence. The more likely scenario is rather than the defendants maliciously delaying their Rule 12(b)(1) motion, they didn't find out until well into the suit that, contrary to their clomplaint, the plaintiff hadn't met all of the mandatory notice requirements. My guess is that this happened when the defendants called the EPA to find out why they weren't being active in the suit or verify that they weren't unknowingly in violation.

D: "Hey, EPA, what do you think about this alleged violation?"
EPA: "What violation?"
D: "This one filed a year ago."
EPA: "We weren't notified."
D: "Hmmm... oh, Mr. District Judge?"
J: "Yes?"
D: "Plaintiff never filed notice with the EPA."
J: "Is that true?"
P: "Uh, let me get back to you on that..."
...
P: "Hey EPA and State agency, there's a violation that I forgot to tell you about. Can we continue the
suit now?"
J: "Um, I don't want to have to go through all this again, so I guess if we wait 60 days, we can proceed."
...
Circuit Judges: "Bad District Judge. The requirement is there for a reason. Proper procedure is to refile."
Supreme Court: "What they said. Congress can correct us if we're wrong."

The judge acted as soon as he was informed of the non-compliance, despite Larry's wild suppositions otherwise. If Larry had bothered to read the decision, he would have known that the district judge knew about the 60-day notice requirement.

>>>Also, the state and the EPA did not act anyway, so it made no real difference whether the 60-day notice was given before the suit was filed or after. And as the dissenters in Hallstrom v. Tillamook County observed, "The Court fails to recognize ... that there is no necessary connection between a violation of that statute [the statute requiring 60-days notice] and any particular sanction for noncompliance."

As for the 60-days notice serving the purpose of giving "the alleged violator an opportunity to bring itself into compliance with
the environmental standards," the defendant in the Hallstrom case got a year's notice, not just 60 days notice.<<<

And the Supreme Court recognized that this ended up wasting resources in this particular case, but decided it was necessary to nip this in the bud before it became widespread.

>>>>>>If you want to criticize the conclusions he reached based on the evidence, you need to know what the evidence was - and that is in the court transcripts.<<<<<<

>>>Appeals court judges who review cases normally don't go through the complete transcripts of the courtroom testimony -- so why should I ?<<<

That's because appeals courts usually are only ruling on procedural grounds (that's why many publicized court decisions seem narrow). As I said in the next paragraph, when ruling on procedural grounds, you only need to look at the opinion and precedential authorities. Also, if you are reviewing the conclusions, you may not have to read the entire transcript, but you do have to read the portions that apply to the particular conclusion you are reviewing. Note that Jones didn't say you had to read the whole transcript.

>>>>>>If, on the other hand, you merely want to criticize his procedures, you have to review the precedences that he used and had to apply - which means reading the decision and the precedences to see whether he applied them properly.<<<<<<

>>>I have reviewed a lot of his procedures and the precedents and other authorities that he used for them and concluded in many cases that he did not apply the authorities properly. An example was one of the reasons he gave for denying FTE's motion to intervene: FTE's interests were "purely economic."<<<

I have seen you invent precedents that don't exist, I have seen you apply precedents that are not applicable, and I have seen you deny precedents that are applicable. The example you give here is the latter. The clear and binding 3rd Circuit precedent is that interests that are "purely economic" are not sufficient for intervention. Your beef here should be directed at the 3rd Circuit, not Judge Jones who had no choice but to follow the clear and binding precedent.

>>>Kevin's arguments get smacked down again.<<<

Keep flailing away with that wet noodle. In the meanwhile, I'll continue using one of my many steel blades.

Wednesday, October 18, 2006 6:20:00 AM  
Anonymous Voice In The Wilderness said...

Kevin slam dunks the idiot again. Idiot lands on his head. No damage. Nothing in his head to be damaged.

Wednesday, October 18, 2006 9:22:00 AM  
Blogger Larry Fafarman said...

Kevin said (October 18, 2006 6:20:28 AM) --
>>>>> Anyone familiar with the existing 3rd Circuit precedents could have predicted that Jones would have to rule on the scientific merits. <<<<<<

What 3rd circuit precedents? And why were you the only one who was able to find them?

For example, consider court cases to determine whether states have violated the commerce clause. The courts generally use a multi-prong test and are supposed to stop as soon as the case has been decided. This multi-prong test might consist of the following questions:
1) Does the state action burden interstate commerce? If no, stop.
(2) If yes, then does the burden have legitimate public benefits? If no, stop.
(3) If yes, then are there less burdensome alternatives? If yes, stop (except that a judge might apply question #4 to any less burdensome alternative).
(4) If no, then is the burden on interstate commerce excessive in relation to the benefits?

It's like a mechanic working on a car -- the mechanic is supposed to stop as soon as the car has been fixed. Courts are heavily subsidized by taxes and litigants have no right to have questions answered by the courts after the cases have already been decided.

>>>>>>I am not aware of this brief being available on the Internet,

Well, now you are aware that it is available. You seem to use your ignorance as a shield. <<<<<

You are the one who is ignorant, you stupid fathead. The federal district court's online record of opinions goes back only to 2000. The McLean v. Arkansas Board of Education (1982) case is considered to be a landmark case but there is now a major project to reconstruct the records of that case. If you would give me a link to where the records of my cases are, I would greatly appreciate it.

>>>>> The statute that you attempted to sue under specifically states The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute. Therefore, the 60-day notice requirement does apply. <<<<<<

That statute, 42 USC § 7604, a "citizen suit" statute, applies only to suits charging a failure to control emissions ("an emission standard or limitation under this chapter"). Hence, the 60-day notice requirement does not apply.

>>>>> he tried to argue that the statutory review proceeding was inadequate and thus not subject to the above requirement - the courts rightly rejected this argument <<<<<

I don't remember what all my arguments were, but whatever they were, the judges left no evidence that they had read any of the briefs -- mine or the defendants' -- at all. As I said, there were NO written opinions, and there were NO oral hearings.

>>>>> (in Hallstrom v. Tillamook County) Neither the court nor the plaintiffs (I presume you mean "defendants," not "plaintiffs") had any way of knowing whether the approriate authorities had been notified, short of verifying with those authorities. The court is under no obligation to check with those authorities, and the defendants had no reason to believe that the plaintiff's lawyers hadn't followed their due diligence. <<<<<

If I had been the judge, one of the first things I would have asked to see -- notice requirement or no notice requirement -- would have been the decisions and/or findings of the "appropriate authorities," i.e., the federal and state environmental protection agencies. And as I said, had the judge been aware of the violation of the 60-day notice requirement, FRCP Rule 12(h)(3) obligated him to raise the issue himself. The judge as well as the plaintiff and the defendant were guilty of ignorance or negligence.

>>>>> Circuit Judges: "Bad District Judge. The requirement is there for a reason. Proper procedure is to refile."
Supreme Court: "What they said. Congress can correct us if we're wrong." <<<<<

Supreme Court dissenters (verbatim): ""The Court fails to recognize ... that there is no necessary connection between a violation of that statute [the statute requiring 60-days notice] and any particular sanction for noncompliance." Some dissenting opinions are so persuasive that I often wonder whether the judges or justices discuss cases among themselves before deciding.

BTW, I found no evidence that the SC majority said something like, "Congress can correct us if we're wrong." That would not be a valid argument anyway, because Congress might not care enough about a problem to correct it.

>>>>> And the Supreme Court recognized that this ended up wasting resources in this particular case, but decided it was necessary to nip this in the bud before it became widespread. <<<<<<

Wrong again. The waste of resources in Hallstrom was due to ignorance and/or negligence on the part of the plaintiff's attorney, the judge, and the defendant, and also the defendant might be guilty of entrapment by possibly waiting a long time to raise the issue. The court's decision therefore would not necessarily prevent repetition of this problem.

Anyway, Kevin, I think that you have blown this Hallstrom case way out of proportion. I just presented it as an example of where the courts have shown that they don't care about saving people time, money, and trouble.

Wednesday, October 18, 2006 2:28:00 PM  
Anonymous Voice In The Wilderness said...

> And why were you the only one who was able to find them? <

Why is it that you are so often the only one unable to find things?

> It's like a mechanic working on a car -- the mechanic is supposed to stop as soon as the car has been fixed. Courts are heavily subsidized by taxes and litigants have no right to have questions answered by the courts after the cases have already been decided. <

And yet you question why the judges did not proceed with minor irrelevant details after they found that your cases were lost.

> If you would give me a link to where the records of my cases are, I would greatly appreciate it. <

Why should Kevin do your work for you? A competent researcher could find this on their own.

> That statute, 42 USC § 7604, a "citizen suit" statute, applies only to suits charging a failure to control emissions ("an emission standard or limitation under this chapter"). Hence, the 60-day notice requirement does not apply. <

Read Kevin's statement again. It does apply. He clearly explains why. You have your hands over your eyes and say the world does not exist because you can't see it.

> I don't remember what all my arguments were, but whatever they were, the judges left no evidence that they had read any of the briefs -- mine or the defendants' -- at all. <

This after you just gave the mechanic analogy! I guess you don't understand your own analogies.

> If I had been the judge <

You might have done all sorts of nonsensical things. This one didn't.

> I found no evidence <

That is true. You didn't find it.

> Wrong again. <

He hasn't been wrong yet. You haven't been right yet.

> I just presented it as an example of where the courts have shown that they don't care about saving people time, money, and trouble. <

The courts just find according to the law. They are not in the business of saving the incompetent from themselves.

Kevin wins again (as always).

Wednesday, October 18, 2006 2:55:00 PM  
Blogger Larry Fafarman said...

La la la la la. I can't hear you. I will cover my eyes and you will disappear.

Thursday, October 19, 2006 8:46:00 AM  
Anonymous W. Kevin Vicklund said...

I'm sorry I have not responded earlier, Dave. My wife returned from her doctoral research two weeks ago, and then my car was stolen last week (anyone know where Larry was between 10:00 am and 1:30 pm EDT last Wednesday? just kidding;)

Dave had asked me to address Larry's argument that Parden created a precedence by which Larry could sue California:

>>>Since those lousy judges gave no evidence that they read the briefs, my briefs could just as well have been strokes of legal genius and it would not have made any difference. My first reply brief was in fact a stroke of legal genius -- no, actually, it was an accident. At the time, I knew nothing about how to do legal research, but I just happened to stumble on a precedent that was a perfect answer to California's claim of immunity from tax suits in federal courts. I argued that California lost that immunity in the case of the smog impact fee because the fee was entirely based on federal laws and regulations and the Supreme Court said in Parden v. Terminal Railway of the Alabama State Docks Dept., 377 U.S. 184 (1964) that state immunity from suit in federal court is lost when a state "leaves the sphere that is exclusively its own":

"A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation."

My argument was so strong that California did not even attempt to submit a rebuttal brief, which the state was entitled to do. That fact alone should have caught the attention of judge TJ "Mad" Hatter, but he dismissed my suit without an opinion. So what plaintiff would not be pissed? Anyway, as I said, my lawsuits in the federal courts were a good learning experience -- it was not just a matter of winning or losing.<<<

A little background on Parden. A number of states created state-run railroad companies. Plaintiff argued that Alabama's state-run railroad was in violation of federal regulations and sued. Defendants made a motion to dismiss under Rule 12(b)(6) [if plaintiff can present no evidence for a claim for which relief can be granted, the claim must be dismissed] by claiming Eleventh Amendment immunity (meaning that the Court is prevented from granting relief for a claim against a State or the Federal government if said claim is made by an individual, unless said defense has been expressly waived). The question, therefor, was whether the State had waived its immunity by its actions.

Let's start by taking a look at the second sentence of the quote Larry provided. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation. Note that the Supreme Court did not say that the State waived its immunity, rather that it subjected itself to congressional regulation. In other words, the regulation is what defines whether the State's immunity is waived. So is a private lawsuit the only form of regulation? Let's take a look at a portion of the conclusion from Parden, a few sentences after the quote Larry provided, for the answer.

States have entered and are entering numerous forms of activity which, if carried on by a private person or corporation, would be subject to federal regulation. See South Carolina v. United States, supra, 199 U.S., at 454 -455. In a significant and increasing number of instances, such regulation takes the form of authorization of lawsuits by private parties. To preclude this form of regulation in all cases of state activity would remove an important weapon from the congressional arsenal with respect to a substantial volume of regulable conduct.

Obviously, this means that there are a number of instances in which congressional regulation does not take the form of authorization of lawsuits by individual parties. Furthermore, the state must be carrying on activities for which private persons or corporations would be subject to lawsuit.

In Parden, the state was acting outside its normal sphere of governance by operating a railroad, something which a private person or a corporation could do. It was alleged to have violated FELA in a manner for which FELA permits a private party to normally bring suit. The question before us, then, is whether Larry's lawsuit was similar enough for this to be precedential.

That brings us to a three part test:

1. Is the action regulated?

2. Would the state be considered to be similar to a corporation or individual?

3. Does the regulation authorize lawsuits by individuals? Note that the answer may vary depending on the answer to question 2.

So let's look at the answers to the questions.

1. The action is regulated, but the federal government has waived its right to regulate the entity in question under 42§7543(b). Therefore, California has not waived its immunity, as it is not subject to regulation. We could stop here, but let's continue. I have to leave now, but I will look at the other two tests in my next post. For those that can't wait, I encourage you to examine the relevant codes: 42§7604 and 42§7607(b) (which are the citizen suit codes directly applicable to the EPA), and 5§202, 5§203, and 5§204 (which are the more general APA citizen suit codes under which Larry attempted to file suit).

Tuesday, October 24, 2006 4:06:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said,

>>>>>(Fake) Dave had asked me to address Larry's argument that Parden created a precedence by which Larry could sue California: <<<<

Not just sue California, but sue California in a federal court over a state tax.

Out the outset, I wish to point out that nothing that is said here can excuse the failure of the state and the judge to counter my arguments invoking Parden. And it cannot be argued that the judge had already dismissed my suit on other grounds, because the judge said absolutely nothing.

>>>>> Plaintiff argued that Alabama's state-run railroad was in violation of federal regulations and sued. <<<<<<

Wrong. There was no indication that Alabama's railroad was in violation of federal regulations -- the plaintiffs were suing the railroad for compensation for personal injuries suffered while employed by the railroad. Parden says that the plaintiffs "alleged that the Railway was a 'common carrier by railroad . . . engaging in commerce between any of the several States' within the terms of the Federal Employers' Liability Act, 45 U.S.C. 51-60, and sought damages under that Act for personal injuries sustained while employed by the Railway." There was no indication that the plaintiffs even claimed that the railroad was negligent or at fault, let alone that they claimed that the railroad violated federal regulations.

>>>>>> Let's start by taking a look at the second sentence of the quote Larry provided. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation. Note that the Supreme Court did not say that the State waived its immunity, rather that it subjected itself to congressional regulation. <<<<<

As usual, you are quoting the Supreme Court out of context ("quote mining"). Parden was a suit by individuals against a state-owned railroad (see above). When the SC ruled in favor of the plaintiffs, the SC ruled that the state was in this case subject to suit, and not just that the state was subject to Congressional regulation.

Also, California partly relied on the Tax Injunction Act, a federal law generally prohibiting state tax suits in federal court. Though I did not point this out in my briefs, the sponsor of the Tax Injunction Act indicated in a Senate floor speech that the act was directed at state tax suits that do not involve federal issues. In the case of the smog impact fee, federal issues were coming out the ears. The Supreme Court has ruled that Congressional records and reports may be used in the interpretation of federal statutes.

>>>> That brings us to a three part test: <<<<<

And who came up with this "three part test"? The Supreme Court? No, you did. Nevertheless, I will respond to the questions.

>>>>1. Is the action regulated? <<<<<

Yes -- it is subject to regulation by the US government -- the EPA in particular. There is federal pre-emption of new-car emissions laws and regulations -- Congress passed a law generally prohibiting state laws and regulations concerning new-car emissions, with the exception that the US EPA may grant California special waivers of the federal new-car laws and regulations. It was claimed that the smog impact fee was a used-car regulation, but the fee had nothing to do with used-car emissions but was entirely retroactively based on a car's new-car emissions certification, California or federal. Nothing could be done to the car to avoid the fee -- imposition of the fee was entirely based on the vehicle's new-car emissions certification label, and the law made it a crime to remove or tamper with the label. Also, as I pointed out in my comment of October 17, 2006 10:03:50 PM on this thread, the opinion in the state court suit against the fee said,

In support of their motion for summary judgment, plaintiffs offered the declaration of Thomas Austin, a former executive officer of the California Air Resources Board and now a partner in a consulting firm specializing in air pollution . . . . he opined that the California waiver [granted by the US Environmental Protection Agency] did not cover the motor vehicle smog impact fee and a separate waiver would be required.

>>>>> 2. Would the state be considered to be similar to a corporation or individual? <<<<<

Irrelevant. The SC just happened to say that in this particular case, the state could be sued as though it were a corporation or individual. But there is no reason why a state cannot be sued as a state in the appropriate circumstances.

>>>>> 3. Does the regulation authorize lawsuits by individuals? Note that the answer may vary depending on the answer to question 2. <<<<<

Who gives a shit here about regulations? I was suing under the Supreme Law of the Land -- the US Constitution.

Under the "citizen suit" provisions which I did not sue under, the court might have required me to give 60-days official notice to the state and the regulatory agencies and then refile the suit. I am referring to that part of 42 USC §7604 concerning actions that are not discretionary with the US EPA (though arguably this part does not apply, because the emissions laws say nothing about the US EPA being required to take action against an unauthorized motor-vehicle smog impact fee).

>>>>>> The action is regulated, but the federal government has waived its right to regulate the entity in question under 42§7543(b). Therefore, California has not waived its immunity, as it is not subject to regulation. <<<<<<

The courts are supposed to decide whether the federal government may waive its rights under 42 USC §7543(b).

>>>>> For those that can't wait, I encourage you to examine the relevant codes: 42§7604 and 42§7607(b) (which are the citizen suit codes directly applicable to the EPA), and 5§202, 5§203, and 5§204 (which are the more general APA citizen suit codes under which Larry attempted to file suit). <<<<<

42 USC §7607 is not a "citizen suit" provision and 5 USC §§202-204 are not in the 2000 edition of the US Code.

Wednesday, October 25, 2006 1:33:00 AM  
Anonymous W. Kevin Vicklund said...

Sorry it took so long to get back to you guys. My wife is on a cleaning spree, my stolen car was recovered the day after I lasted posted in this thread and needs repairs (thankfully not enough to be totaled), and I was called out of the office most of the past week. But now my wife is away for the weekend, my car is in the repair shop, and work is done for the week, so I have a block of time on my hands.

Larry decided to interject with his usual ignorant nonsense, so I'll go ahead and address his objections, which will also finish what I had started in the previous post.

>>>Not just sue California, but sue California in a federal court over a state tax.<<<

For those readers who, like Larry, are charter members of Short Attention Span Theater, yes, we are talking about suing in federal court, not state court.

>>>Out the outset, I wish to point out that nothing that is said here can excuse the failure of the state and the judge to counter my arguments invoking Parden. And it cannot be argued that the judge had already dismissed my suit on other grounds, because the judge said absolutely nothing.<<<

Nothing except for the fact that you improperly invoked Parden by failing to specify which federal regulation waived the state's 11th amendment right to immunity from civil action in federal court. Once California claimed immunity, the burden was upon you to support your claim. Your failure to support your claim obligated the judge to dismiss for lack of subject matter jurisdiction, and the circuit court agreed - twice. The courts aren't a game where who gets in the last word wins, Larry. Put simply, invoking Parden doesn't relieve you of the obligation to provide the relevant regulation that provides the constitutionally required standing to over-ride the constitutional defense provided by the 11th Amendment. (I will cover why simply invoking Parden isn't enough later on in this comment - please hold your objections until then, Larry.)

>>>Wrong. There was no indication that Alabama's railroad was in violation of federal regulations -- the plaintiffs were suing the railroad for compensation for personal injuries suffered while employed by the railroad. Parden says that the plaintiffs "alleged that the Railway was a 'common carrier by railroad . . . engaging in commerce between any of the several States' within the terms of the Federal Employers' Liability Act, 45 U.S.C. 51-60, and sought damages under that Act for personal injuries sustained while employed by the Railway." There was no indication that the plaintiffs even claimed that the railroad was negligent or at fault, let alone that they claimed that the railroad violated federal regulations.<<<

Again, Larry shows his lack of comprehension of basic legal concepts, as well as throwing out a red herring in an attempt to distract from the real issue. 45§51 requires common carriers to assume liability for injuries sustained by their employess. Failure to assume full liability as required by federal regulation is in fact a violation of those federal regulations, and 45§56 establishes standing in federal court to bring suit. I was trying to avoid too much analysis in my previous post to make it shorter, so I called it a violation and left it at that.

>>>As usual, you are quoting the Supreme Court out of context ("quote mining"). Parden was a suit by individuals against a state-owned railroad (see above). When the SC ruled in favor of the plaintiffs, the SC ruled that the state was in this case subject to suit, and not just that the state was subject to Congressional regulation.<<<

How ironic that Larry, who constantly is quote-mining, accuses me (falsely) of quote-mining, and then immediately quote-mines me! I continued on in my analysis and showed that the regulation is what waives the right. Nowhere did I claim that the Supreme Court didn't rule that the state was subject to suit.

In reality, it is Larry who is quote-mining the Supreme Court, by skipping steps that are clearly laid out in the opinion. The steps in the case:

1. Is state action subject to federal regulation? Yes, under Commerce Clause
2. Does state meet definition of defendant against which an action may be brought under said federal regulation? Yes, as "common carrier" under 45§51
2a. If so, what type of action may be brought against state in its role as defendant? Same action as against any private common carrier
3. Does federal regulation give standing to bring action in federal court? Yes, in district court under 45§56

Larry is trying to claim that step 1 is sufficient to establish standing, but the Supreme Court very cleary states that it is because the regulation requires the carriers to assume liability in federal court that the state has lost immunity.

Some select quotes from Parden (emphasis mine):
"By empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity."

"Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act. By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit."

"...the waiver is asserted to arise from the State's commission of an act to which Congress, in the exercise of its constitutional power to regulate commerce, has attached the condition of amenability to suit."

"This must be true whenever the waiver is asserted to arise from an act done by the State within the realm of congressional regulation; for the congressional power to condition such an act upon amenability to suit would be meaningless if the State, on the basis of its own law or intention, could conclusively deny the waiver and shake off the condition. The broad principle of the Petty case is thus applicable here: Where a State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere - whether it be interstate compacts or interstate commerce - subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law. Here, as in Petty, the States by venturing into the congressional realm "assume the conditions that Congress under the Constitution attached." 359 U.S., at 281 -282."

"In a significant and increasing number of instances, such regulation takes the form of authorization of lawsuits by private parties. To preclude this form of regulation in all cases of state activity would remove an important weapon from the congressional arsenal with respect to a substantial volume of regulable conduct. Where, as here, Congress by the terms and purposes of its enactment has given no indication that it desires to be thus hindered in the exercise of its constitutional power, we see nothing in the Constitution to obstruct its will."

Any doubts as to whether the Supreme Court meant the power to over-ride the immunity claim comes from the text of the regulations? Didn't think so. Well, I'm sure Larry will deny the evidence I've shown him in his habitual hypocrisy, but aside from him...

>>>Also, California partly relied on the Tax Injunction Act, a federal law generally prohibiting state tax suits in federal court. Though I did not point this out in my briefs, the sponsor of the Tax Injunction Act indicated in a Senate floor speech that the act was directed at state tax suits that do not involve federal issues. In the case of the smog impact fee, federal issues were coming out the ears. The Supreme Court has ruled that Congressional records and reports may be used in the interpretation of federal statutes.<<<

A claim not made is a claim waived. Besides which, this claim has been struck down repeatedly, and Congress has the power and duty to correct the courts if they have incorrectly interpreted Congresses wishes. It's not going to be overturned except by act of Congress.

>>>>>> That brings us to a three part test: <<<<<<

>>>And who came up with this "three part test"? The Supreme Court? No, you did. Nevertheless, I will respond to the questions.<<<

And yet Larry in his previous comment invents a multi-prong test. Hypocrisy, thy name is Lawrence.

>>>>>>1. Is the action regulated? <<<<<<

>>>Yes -- it is subject to regulation by the US government -- the EPA in particular. There is federal pre-emption of new-car emissions laws and regulations -- Congress passed a law generally prohibiting state laws and regulations concerning new-car emissions, with the exception that the US EPA may grant California special waivers of the federal new-car laws and regulations. It was claimed that the smog impact fee was a used-car regulation, but the fee had nothing to do with used-car emissions but was entirely retroactively based on a car's new-car emissions certification, California or federal. Nothing could be done to the car to avoid the fee -- imposition of the fee was entirely based on the vehicle's new-car emissions certification label, and the law made it a crime to remove or tamper with the label.<<<

Not only was it claimed that the smog-impact fee was a used-car regulation, it was the winning argument in the state court case that declared the fee unconstitutional - over the state's objections that it was based on the new car certification! I should also point out that there are a number of California regulations that make it illegal to remove or tamper with the certification label.

>>>Also, as I pointed out in my comment of October 17, 2006 10:03:50 PM on this thread, the opinion in the state court suit against the fee said,

In support of their motion for summary judgment, plaintiffs offered the declaration of Thomas Austin, a former executive officer of the California Air Resources Board and now a partner in a consulting firm specializing in air pollution . . . . he opined that the California waiver [granted by the US Environmental Protection Agency] did not cover the motor vehicle smog impact fee and a separate waiver would be required.<<<

Whenever Larry provides a quote from a legal decision, you should check the source to see whether it's a nugget from a quote-mine. And sure enough, this little gem has QM stamped all over it. You see, Larry neglected to include the final sentence in the paragraph he is quoting, which states the reason why Mr. Austin concluded another waiver was required. Here's the full quote (bold emphasis mine):

In support of their motion for summary judgment, plaintiffs offered the declaration of Thomas Austin, a former executive officer of the California Air Resources Board and now a partner in a consulting firm specializing in air pollution. Austin declared his firm had performed a detailed analysis of the differences between California-certified vehicles and federally certified vehicles for model years 1981-1993. The analysis found a majority of federally-certified vehicles, 56 percent, “complied with and could have been certified to California emission standards for new vehicles.” (Original emphasis omitted.) He further declared there was no differentiation in smog testing for used vehicles, whether California-certified or federally-certified. Finally, he opined that the California waiver did not cover the motor vehicle smog impact fee and a separate waiver would be required. He noted the California waiver applied only to new vehicles.

Yet another out-of-context quote from Larry. Who'da thunk it?

The simple fact is, Larry guessed the right answer (the fee was unconstitutional), but was completely wrong in every phase of how to solve the problem (why it was unconstitutional, how to prove it, and the procedures to follow in proving it). Yet he tries to claim credit for giving the right answer. Unfortuantely for Larry, courts don't give partial credit for guessing the answer - they demand you show the work.

>>>>>> 2. Would the state be considered to be similar to a corporation or individual? <<<<<<

>>>Irrelevant. The SC just happened to say that in this particular case, the state could be sued as though it were a corporation or individual. But there is no reason why a state cannot be sued as a state in the appropriate circumstances.<<<

It is not irrelevant. This question sets up the next question. If a state is considered the same as an individual, then any suit permitted in the next question will automatically apply to the state. If, however, the regulation treats the state as a state, it retains its 11th Amendment right to immunity unless the regulation in the next question specifically waives that right. This question is not meant to be a stop point.

>>>>>> 3. Does the regulation authorize lawsuits by individuals? Note that the answer may vary depending on the answer to question 2. <<<<<<

>>>Who gives a shit here about regulations? I was suing under the Supreme Law of the Land -- the US Constitution.<<<

Well, the Supreme Court in Parden seems to give a shit about regulations (see my quotes above). Article 3 and the 11th Amendment are also the Supreme Law of the Land. Article 3 requires standing to bring suit in federal court, and the 11th Amendment denies standing unless the state waives its immunity. Here's another quot from Parden that addresses this issue:

this Court has recognized that an unconsenting State is immune from federal-court suits brought by its own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U.S. 1 ; Duhne v. New Jersey, 251 U.S. 311 ; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 ; Fitts v. McGhee, 172 U.S. 516, 524 . See also Monaco v. Mississippi, 292 U.S. 313 . Nor is the State divested of its immunity "on the mere ground that the case is one arising under the Constitution or laws of the United States." Hans v. Louisiana, supra, 134 U.S., at 10 ; see Duhne v. New Jersey, supra, 251 U.S. 311 ; Smith v. Reeves, 178 U.S. 436, 447 -449; Ex parte New York, 256 U.S. 490, 497 -498. But the immunity may of course be waived; the State's freedom from suit without its consent does not protect it from a suit to which it has consented.

The Supreme Court in Parden made it quite clear that if a state chooses to participate in a federally regulated activity, and the regulations require the state to waive its 11th Amendment rights, then it has voluntarily waived the right to immunity from suit in federal court. So it therefore becomes incumbent on the plaintiff to provide the regulations that governs both the activity and the ability to bring suit in federal court.

>>>Under the "citizen suit" provisions which I did not sue under, the court might have required me to give 60-days official notice to the state and the regulatory agencies and then refile the suit. I am referring to that part of 42 USC §7604 concerning actions that are not discretionary with the US EPA (though arguably this part does not apply, because the emissions laws say nothing about the US EPA being required to take action against an unauthorized motor-vehicle smog impact fee).<<<

And yet you argued that the EPA was required to take action by revoking the waiver. Such is the price of incompetence.

>>>>>> The action is regulated, but the federal government has waived its right to regulate the entity in question under 42§7543(b). Therefore, California has not waived its immunity, as it is not subject to regulation. <<<<<<

>>>The courts are supposed to decide whether the federal government may waive its rights under 42 USC §7543(b).<<<

Survey says... WRONG! The federal government assigned the decision to waive its rights under 42§7543(b) to the Administrator of the EPA. Congress did, however, provide a limited forum for citizens to file suit for judicial review of the Administrator's decisions, including any decisions he makes regarding waiver of federal rights under 42§7543(b). This citizen suit provision is known as 42§7607(b). But it carries some caveats. It has a statute of limitation of 60 days from when the decision is made official (by publishing the decision in the Federal Register), it is the sole review available, and it may not be combined with any civil or criminal enforcement action. Larry managed to fail to file within the 60-day time limit, attempted to review the decision under a different statute, and tried to combine it with an enforcement action against the State of California. Such is the price of incompetence.

>>>>>> For those that can't wait, I encourage you to examine the relevant codes: 42§7604 and 42§7607(b) (which are the citizen suit codes directly applicable to the EPA), and 5§202, 5§203, and 5§204 (which are the more general APA citizen suit codes under which Larry attempted to file suit). <<<<<<

>>>42 USC §7607 is not a "citizen suit" provision and 5 USC §§202-204 are not in the 2000 edition of the US Code.<<<

42§7607 is a provision that permits private citizens to sue in federal court for (albeit limited) judicial review. Thus, it is a "citizen suit" provision. I apologize for the error regarding 5§§202-204 - in my haste to get out the door, I misread my notes. It should read 5§§702-704.

Anyway, on to a quick analysis. The Commerce Clause gives Congress the right to regulate emission standards. Congress created Title 42 in part to regulate these standards. In 42§7543, Congress prohibited states from enforcing regulations on new vehicles, engines, and equipment under subsections (a), (c), and (e). However, under subsection (b) they permitted a waiver of subsections (a), (c), and (e)(2). Section (d) gave the right to the states to enforce other emission standards (which means used car standards and regulations are not federally regulated).

Despite Larry's protestations to the contrary, it is quite clear that the courts have ruled the Fee to be a used vehicle regulation, which is not federally regulated. Since Congress has not chosen to regulate it, the 11th Amendment and the Tax Injunction Act rule the field, forcing the action to state court. Even if Larry could demonstrate that it is a new car regulation, he failed to cite any regulation that either applied to the state or waived the state's 11th Amendment and Tax Injunction Act rights.

Let's look at the sections that are either part of the regulation, or that Larry invoked.

42§7604:
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or
(3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit.
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)). The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in section 7607 (b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607 (b) of this title. In any such action for unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of this section shall be provided 180 days before commencing such action.
(b) Notice
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to 60 days after the plaintiff has given notice of the violation
(i) to the Administrator,
(ii) to the State in which the violation occurs, and
(iii) to any alleged violator of the standard, limitation, or order, or
(B) if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any person may intervene as a matter of right.
(2) under subsection (a)(2) of the section prior to 60 days after the plaintiff has given notice of such action to the Administrator,
except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of section 7412 (i)(3)(A) or (f)(4) of this title or an order issued by the Administrator pursuant to section 7413 (a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.
(c) Venue; intervention by Administrator; service of complaint; consent judgment
(1) Any action respecting a violation by a stationary source of an emission standard or limitation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located.
(2) In any action under this section, the Administrator, if not a party, may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section to which the United States is not a party shall not, however, have any binding effect upon the United States.
(3) Whenever any action is brought under this section the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and on the Administrator. No consent judgment shall be entered in an action brought under this section in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator during which time the Government may submit its comments on the proposed consent judgment to the court and parties or may intervene as a matter of right.
(d) Award of costs; security
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.
(e) Nonrestriction of other rights
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from—
(1) bringing any enforcement action or obtaining any judicial remedy or sanction in any State or local court, or
(2) bringing any administrative enforcement action or obtaining any administrative remedy or sanction in any State or local ­administrative agency, department or ­instrumentality,
against the United States, any department, agency, or instrumentality thereof, or any officer, agent, or employee thereof under State or local law respecting control and abatement of air pollution. For provisions requiring compliance by the United States, departments, agencies, instrumentalities, officers, agents, and employees in the same manner as nongovernmental entities, see section 7418 of this title.
(f) “Emission standard or limitation under this chapter” defined
For purposes of this section, the term “emission standard or limitation under this chapter” means—
(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,
(2) a control or prohibition respecting a motor vehicle fuel or fuel additive, or [1]
(3) any condition or requirement of a permit under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment),,[2] section 7419 of this title (relating to primary nonferrous smelter orders), any condition or requirement under an applicable implementation plan relating to transportation control measures, air quality maintenance plans, vehicle inspection and maintenance programs or vapor recovery requirements, section 7545 (e) and (f) of this title (relating to fuels and fuel additives), section 7491 of this title (relating to visibility protection), any condition or requirement under subchapter VI of this chapter (relating to ozone protection), or any requirement under section 7411 or 7412 of this title (without regard to whether such requirement is ­expressed as an emission standard or otherwise); [3] or
(4) any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations.[4]
which is in effect under this chapter (including a requirement applicable by reason of section 7418 of this title) or under an applicable implementation plan.
(g) Penalty fund
(1) Penalties received under subsection (a) of this section shall be deposited in a special fund in the United States Treasury for licensing and other services. Amounts in such fund are authorized to be appropriated and shall remain available until expended, for use by the Administrator to finance air compliance and enforcement activities. The Administrator shall annually report to the Congress about the sums deposited into the fund, the sources thereof, and the actual and proposed uses thereof.
(2) Notwithstanding paragraph (1) the court in any action under this subsection to apply civil penalties shall have discretion to order that such civil penalties, in lieu of being deposited in the fund referred to in paragraph (1), be used in beneficial mitigation projects which are consistent with this chapter and enhance the public health or the environment. The court shall obtain the view of the Administrator in exercising such discretion and selecting any such projects. The amount of any such payment in any such action shall not exceed $100,000.


If "limitation" included the prohibition in 42§7543(a), this would appear to be the section of the regulation by which Larry could file suit. Two problems: "limitation" as defined in section (f) doesn't include 42§7543(a), and the state's immunity has expressly not been waived. Larry still has some hope in that section (e) does not restrict the right to bring suit under a different statute. Of course, the different statute must be applicable to the situation.

42§7607(b):
(b) Judicial review

(1) A petition for review of action of the Administrator in
promulgating any national primary or secondary ambient air quality
standard, any emission standard or requirement under section 7412 of
this title, any standard of performance or requirement under section
7411 of this title, any standard under section 7521 of this title (other
than a standard required to be prescribed under section 7521(b)(1) of
this title), any determination under section 7521(b)(5) \1\ of this
title, any control or prohibition under section 7545 of this title, any
standard under section 7571 of this title, any rule issued under section
7413, 7419, or under section 7420 of this title, or any other nationally
applicable regulations promulgated, or final action taken, by the
Administrator under this chapter may be filed only in the United States
Court of Appeals for the District of Columbia. A petition for review of
the Administrator's action in approving or promulgating any
implementation plan under section 7410 of this title or section 7411(d)
of this title, any order under section 7411(j) of this title, under
section 7412 of this title,,\3\ under section 7419 of this title, or
under section 7420 of this title, or his action under section 1857c-
10(c)(2)(A), (B), or (C) of this title (as in effect before August 7,
1977) or under regulations thereunder, or revising regulations for
enhanced monitoring and compliance certification programs under section
7414(a)(3) of this title, or any other final action of the Administrator
under this chapter (including any denial or disapproval by the
Administrator under subchapter I of this chapter) which is locally or
regionally applicable may be filed only in the United States Court of
Appeals for the appropriate circuit. Notwithstanding the preceding
sentence a petition for review of any action referred to in such
sentence may be filed only in the United States Court of Appeals for the
District of Columbia if such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination. Any petition for review under this subsection shall be
filed within sixty days from the date notice of such promulgation,
approval, or action appears in the Federal Register, except that if such
petition is based solely on grounds arising after such sixtieth day,
then any petition for review under this subsection shall be filed within
sixty days after such grounds arise. The filing of a petition for
reconsideration by the Administrator of any otherwise final rule or
action shall not affect the finality of such rule or action for purposes
of judicial review nor extend the time within which a petition for
judicial review of such rule or action under this section may be filed,
and shall not postpone the effectiveness of such rule or action.
(2) Action of the Administrator with respect to which review could
have been obtained under paragraph (1) shall not be subject to judicial
review in civil or criminal proceedings for enforcement. Where a final
decision by the Administrator defers performance of any nondiscretionary
statutory action to a later time, any person may challenge the deferral
pursuant to paragraph (1).


First this applies only to the Administrator of the EPA, not the state. Second, paragraph (2) prevents this review from occuring in conjunction with a civil enforcement proceeding (in other words, he can't combine it with an action against the state, thereby destroying any claim to diversity). Despite Larry's protestations otherwise, the Administrator's grant of waiver, once published in the Federal Register, is a final action within the meaning of the statute and therefor subject exclusively to this section. If Larry wanted review of the waiver, he was required to file suit within 60 days of the waiver being published, or the statute of limitations runs out. The administrator has the right, but not the duty, to review the waiver at any time, including if a citizen brings an issue to his attention. He has the duty to review waiver requests from the state.

Larry turned to the Administrative Procedures Act (codified in Title 5) in an attempt to gain standing. Unfortunately for him, the APA also preserves the state's immunity.

5§701 (although Larry didn't expressly mention this section, it applies to the rest of the chapter and thus to the two sections he sued under):
Application; definitions

(a) This chapter applies, according to the provisions thereof,
except to the extent that--
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.


(b) For the purpose of this chapter--
(1) ``agency'' means each authority of the Government of the
United States, whether or not it is within or subject to review by
another agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the
United States;
(D) the government of the District of Columbia;
(E) agencies composed of representatives of the parties or
of representatives of organizations of the parties to the
disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war
or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and
1744 of title 12; chapter 2 of title 41; subchapter II of
chapter 471 of title 49; or sections 1884, 1891-1902, and former
section 1641(b)(2), of title 50, appendix; and

(2) ``person'', ``rule'', ``order'', ``license'', ``sanction'',
``relief'', and ``agency action'' have the meanings given them by
section 551 of this title.


Hmm, the APA does not when other statutes preclude judicial review. That would include the Tax Injunction Act and the11th Amendment. And does "agency" include the state? Also note that it doesn't over-ride discretionary decisions of agencies. By the way, I apologize for the formatting of some of the quotes of the statutes. Cornell's site is not reliable today, so I'm pulling stuff off other sites.

5§702 (Larry sued under this section):
Right of review

A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof. An action in a
court of the United States seeking relief other than money damages and
stating a claim that an agency or an officer or employee thereof acted
or failed to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the United States is
an indispensable party. The United States may be named as a defendant in
any such action, and a judgment or decree may be entered against the
United States: Provided, That any mandatory or injunctive decree shall
specify the Federal officer or officers (by name or by title), and their
successors in office, personally responsible for compliance. Nothing
herein (1) affects other limitations on judicial review or the power or
duty of the court to dismiss any action or deny relief on any other
appropriate legal or equitable ground; or (2) confers authority to grant
relief if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.


Looks like this one is also expressly prevented from over-riding the state's rights to immunity.

5§703 (Larry sued under this section as well):
Form and venue of proceeding

The form of proceeding for judicial review is the special statutory
review proceeding relevant to the subject matter in a court specified by
statute or, in the absence or inadequacy thereof, any applicable form of
legal action, including actions for declaratory judgments or writs of
prohibitory or mandatory injunction or habeas corpus, in a court of
competent jurisdiction. If no special statutory review proceeding is
applicable, the action for judicial review may be brought against the
United States, the agency by its official title, or the appropriate
officer. Except to the extent that prior, adequate, and exclusive
opportunity for judicial review is provided by law,
agency action is
subject to judicial review in civil or criminal proceedings for judicial
enforcement.


42§7607(b) provides the "prior, adequate and exclusive opportunity for judicial review", so this provision also is not applicable, besides which, this section is controlled by 5§701

To summarize, Larry's legal tour de force was merely a tour de farce, and deserved to be laughed out of court.

Sunday, November 05, 2006 8:06:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said ( November 05, 2006 8:06:10 PM ) --
>>>>>To summarize, Larry's legal tour de force was merely a tour de farce, and deserved to be laughed out of court. <<<<<<

Kevin, you are wasting your time. I am not going to bother wading through the crap of your lengthy dissertation, and I am sure that most readers are not going to bother, either. Everything you say is of no consequence, because none of the judges in my lawsuit -- not in the district court, the appeals court, or (of course) the supreme court -- stated any opinion. Not one single word.

This matter is closed, and you have LOST. Get over it.

Tuesday, November 07, 2006 3:49:00 AM  
Anonymous W. Kevin Vicklund said...

Dave wanted to know why your argument failed. I explained. If Dave hadn't asked, I wouldn't have bothered. Frankly, the judges are under no obligation to wipe your butt for you. You failed to support your argument with any statute that waives the state's rights, and you failed to support your argument with any statute that permitted your action against the EPA. It's your burden to prove that those statutes exist and apply, otherwise you get summarily dismissed for lack of subject matter jurisdiction. Period.

Oh, by the way:

>>>Fafarman v. E.P.A.
Not Reported in F.3d, 1997 WL 404896
C.A.D.C.,1997.
Jun 30, 1997
Not Reported in F.3d, 1997 WL 404896 (D.C.Cir.)
Only the Westlaw citation is currently available.


United States Court of Appeals, District of Columbia Circuit.
Lawrence FAFARMAN, Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY and Carol M. BROWNER, Administrator, United
States Environmental Protection Agency, Respondents
No. 96-1473.
June 30, 1997.
Suggestion for Rehearing In Banc Denied Aug. 28, 1997.

BEFORE: WALD, ROGERS, and TATEL, Circuit Judges.


ORDER

PER CURIAM.
*1 Upon consideration of the court's order to show cause filed April 25, 1997, the response thereto and amendment to the petition for review, the reply, the unopposed motion for leave to file a reply to the reply, and the lodged reply to the reply, it is
ORDERED that the motion for leave to file a reply to the reply be granted. The Clerk is directed to file the lodged pleading. It is
FURTHER ORDERED that the order to show cause be discharged. It is
FURTHER ORDERED that the amendment be dismissed. The amendment is untimely and suffers from the same defects as the original petition, discussed below. It is
FURTHER ORDERED that the remainder of the petition for review (that is, the constitutional claims) be summarily denied. The merits of the parties' positions are so clear as to warrant summary action. See Cascade Broadcasting Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C.Cir.1987) (per curiam). The Vehicle Smog Impact Fee and the waiver nominally at issue in this case are related only in that the fee might not exist but for the waiver and its predecessors. However, petitioner has not demonstrated that the waiver itself is unconstitutional, and the relationship between the waiver and the fee is insufficient to allow review of the fee on petition for review of the waiver.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 41.
C.A.D.C.,1997.
Fafarman v. E.P.A.
Not Reported in F.3d, 1997 WL 404896 (D.C.Cir.)
END OF DOCUMENT<<<

Not one word, eh?

Larry seems to be unaware that summary dismissals are generally treated rather, well, summarily. There's a reason they call it summary dismissal. You LOST, Larry. Even the reasons you gave for why the fee was unconstitutional were wrong. Get over it.

If you still doubt that the judge is not required to issue an opinion due to summary judgement (Rule 56, by the way), I offer up FRCP Rule 52(a):

Rule 52. Findings by the Court; Judgment on Partial Findings
(a) Effect.

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in subdivision (c) of this rule.


You LOSE.

(subdivision (c) deals with partial judgements, btw)

Tuesday, November 07, 2006 6:08:00 AM  
Blogger Larry Fafarman said...

W. Kevin Vicklund wheezed, .
>>>>Dave wanted to know why your argument failed. I explained. If Dave hadn't asked, I wouldn't have bothered. Frankly, the judges are under no obligation to wipe your butt for you. <<<<<

You stupid fathead, you have not explained why my argument failed, because there is no why. As I said, in the district court California raised no defense against my Parden argument and the judge did not issue an opinion. The appeals court judges did not issue an opinion, either. The judges did not even wipe their own butts in this case.

Kevin wheezed --

>>>>> Oh, by the way:

>>>Fafarman v. E.P.A.
Not Reported in F.3d, 1997 WL 404896 <<<<<<

You incredibly stupid fatheaded birdbrain, that was a DIFFERENT, SEPARATE lawsuit that was filed directly -- as was required in that lawsuit -- in the DC circuit court of appeals in Washington DC! When I said that there was no opinion from any judge (district, appeals, or supreme court), I was talking about the suit that I initiated in the federal district court in Los Angeles! And please note that California was not a defendant in the Washington DC suit, so Parden did not apply! Also, I was obviously granted standing to sue in the Washington DC suit.

Also, the court opinion had the following absurd statement, which you kindly highlighted for me:

The Vehicle Smog Impact Fee and the waiver nominally at issue in this case are related only in that the fee might not exist but for the waiver and its predecessors.(emphasis added)

"Might not exist" is wrong -- the correct phrase is "could not exist." The fee was entirely based on the difference between federal and California new-vehicle emissions certifications. If the US EPA had never granted waivers to California (i.e., had the US EPA never authorized California to have its own new-vehicle emissions standards), then there would have been only federal certification and no California certification and hence no basis for the fee. The fact that the fee owed its existence to the waivers was central to my case.

Thanks, Kevin, for helping make my case for me. I mean, what a dumbshit you are.

Tuesday, November 07, 2006 10:03:00 AM  
Anonymous W. Kevin Vicklund said...

>>>You stupid fathead, you have not explained why my argument failed, because there is no why. As I said, in the district court California raised no defense against my Parden argument and the judge did not issue an opinion. The appeals court judges did not issue an opinion, either. The judges did not even wipe their own butts in this case.<<<

I explained in great detail why - you didn't state any regulation that would grant you standing over the state's statutory and constitutional defense. Except you yet again hypocritically put your fingers in your ears, screwed your eyes shut, and declared the Ravenous Bugblatter Beast of Traal defense at the top of your lungs. Under Rule 52(a), the judges do not have to issue any opinion at all. Period. End of story. If your case gets dismissed for lack of standing, you don't get the right to a court opinion. Period. End of story. You got your butt kicked in court - repeatedly. Period. End of story. Except you're too bloody stupid to even have the slightest clue why you got your ass handed to you on a platter, sliced six ways to Sunday. Period. End of story.

Tuesday, November 07, 2006 10:53:00 AM  
Blogger Larry Fafarman said...

Kevin wheezed,

>>>>>Under Rule 52(a), the judges do not have to issue any opinion at all. <<<<<

There is one little problem here -- Judge TJ "Mad" Hatter never expressly invoked Rule 52(a), so for all practical purposes the rule did not exist. Was I, a pro se litigant, supposed to wipe his lousy butt for him by finding a reason why he was not required to issue an opinion?

Also, you conveniently ignored the Rule 52(c) exception of the Federal Rules of Civil Procedure ---
Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in subdivision (c) of this rule.

-- - - - - - - - - -

(c) Judgment on Partial Findings
If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.


My case was a trial without a jury, so that condition of Rule 52(c) was satisfied. The term "judgment on partial findings" is not defined and could mean a dispositive (i.e., conclusive) judgment that is based on only part of the issues or evidence involved. So Rule 52(c) therefore required the judge to support his decision by "findings of fact and conclusions of law."

Also, the appeals court is governed by a different set of rules, the Federal Rules of Appellate Procedure instead of the Federal Rules of Civil Procedure. The appeals judges did not issue an opinion, either. So what was their excuse?

You are just a lousy fink who takes the side of crooked judges, attorneys, politicians, etc., against the little guy -- e.g., me.

Kevin, you are a lousy stupid pest and I wish that you would just drop dead and go to hell so that I could spend more of my time writing new articles for this blog instead of wasting time answering your asinine comments.

Wednesday, November 08, 2006 5:30:00 AM  
Anonymous W. Kevin Vicklund said...

Larry just can't seem to get enogh of me kicking his ass. Since I'm in a good mood over the elections, I think I'll oblige.

>>>>>>Under Rule 52(a), the judges do not have to issue any opinion at all. <<<<<<

>>>There is one little problem here -- Judge TJ "Mad" Hatter never expressly invoked Rule 52(a), so for all practical purposes the rule did not exist. Was I, a pro se litigant, supposed to wipe his lousy butt for him by finding a reason why he was not required to issue an opinion?<<<

An argument from personal ignorance is merely an ignorant argument, Larry. There is absolutely no need for a judge to invoke Rule 52. It exists, and as a plaintiff, you are responsible for knowing the Rules. Just because you don't know about a Rule, doesn't mean it doesn't exist. The courts aren't Ravenous Bugblatter Beasts of Traal - throwing a towel over your head will just make you look stupid as you get laughed out of court.

>>>Also, you conveniently ignored the Rule 52(c) exception of the Federal Rules of Civil Procedure<<<

I didn't ignore it, I quite accurately stated that it was not applicable.

(c) Judgment on Partial Findings
If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.


>>>My case was a trial without a jury, so that condition of Rule 52(c) was satisfied. The term "judgment on partial findings" is not defined and could mean a dispositive (i.e., conclusive) judgment that is based on only part of the issues or evidence involved. So Rule 52(c) therefore required the judge to support his decision by "findings of fact and conclusions of law."<<<

Ah, Larry's favorite defense - it might mean something, therefore I win. Time after time, it turns out that it doesn't mean what Larry fervently wishes it meant, and this is no exception. First of all, note my boldings. 52(c) only applies during the trial. Larry's case never went to trial - it doesn't matter whether it was supposed to be a non-jury trial. Secondly, Larry was not fully heard on any issue; he wasn't heard at all - in fact, as he readily admitted, he never even had an oral hearing. Third, we have the legal term of art "judgement as a matter of law." This where the heart of Rule 52(c) lies. "Judgement as a matter of law" is a judgement rendered after evidence has been presented but trial is not yet over, made after the party has presented that part of his case that the rest of the claims or defenses rely on, where the evidence presented does not justify finding in favor of the party. But Larry never got a chance to do that - his case was thrown out before he got to present evidence. (With one modification - part of his DC case was summarily dismissed on the merits). Larry's California cases were dismissed for lack of subject matter jurisdiction, which means they were dismissed prior to any consideration of the issues or evidence - in other words, the judgements were not dispositive.

Here are the Advisory Committee Notes for the amendments that created Rule52(c):

Notes of Advisory Committee on Rules—1991 Amendment

Subdivision (c) is added. It parallels the revised Rule 50 (a), but is applicable to non-jury trials. It authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence.
The new subdivision replaces part of Rule 41 (b), which formerly authorized a dismissal at the close of the plaintiff’s case if the plaintiff had failed to carry an essential burden of proof. Accordingly, the reference to Rule 41 formerly made in subdivision (a) of this rule is deleted.
As under the former Rule 41 (b), the court retains discretion to enter no judgment prior to the close of the evidence.
Judgment entered under this rule differs from a summary judgment under Rule 56 in the nature of the evaluation made by the court. A judgment on partial findings is made after the court has heard all the evidence bearing on the crucial issue of fact, and the finding is reversible only if the appellate court finds it to be “clearly erroneous.” A summary judgment, in contrast, is made on the basis of facts established on account of the absence of contrary evidence or presumptions; such establishments of fact are rulings on questions of law as provided in Rule 56 (a) and are not shielded by the “clear error” standard of review.

Notes of Advisory Committee on Rules—1993 Amendment


This technical amendment corrects an ambiguity in the text of the 1991 revision of the rule, similar to the revision being made to Rule 50. This amendment makes clear that judgments as a matter of law in nonjury trials may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense.


Clearly, this focuses on the evidence (as does Rule 50(a), which is the equivalent rule for trials with juries). Since Larry had his cases dismissed prior to evidence being formally presented, he clearly hasn't met the conditions of 52(c). Rule 52(c) exists to speed up a trial - if there is a single issue that a plaintiff's claim relies on or that a defendant's defense clings to and the party has clearly lost on that issue, the court can stop the trial and render a judgement, explaining how it reached that judgement. But if the court doesn't need any evidence (or if the only evidence required is undisputed) to reach it's decision, as in Larry's case, it need not present the facts and conclusions. To do so in Larry's case would be an advisory decision, and we all know how Larry hates those...

>>>Also, the appeals court is governed by a different set of rules, the Federal Rules of Appellate Procedure instead of the Federal Rules of Civil Procedure. The appeals judges did not issue an opinion, either. So what was their excuse?<<<

There is no Rule requiring an opinion to accompany a judgement at the appellate level. The only related Rule is Rule 36.

FRAP 36:
(a) Entry. A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment:
(1) after receiving the court’s opinion—but if settlement of the judgment’s form is required, after final settlement; or
(2) if a judgment is rendered without an opinion, as the court instructs.
(b) Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion—or the judgment, if no opinion was written—and a notice of the date when the judgment was entered.


However, the 9th Circuit Court has some supplementary rules:

CIRCUIT RULE 36-1
OPINIONS, MEMORANDA, ORDERS; PUBLICATION
Each written disposition of a matter before this Court shall bear under the number in the caption the designation
OPINION, or MEMORANDUM, or ORDER. A written, reasoned disposition of a case or motion which is
designated as an opinion under Circuit Rule 36-2 is an OPINION of the Court. It may be an authored opinion or a
per curiam opinion. A written, reasoned disposition of a case or a motion which is not intended for publication under
Circuit Rule 36-2 is a MEMORANDUM. Any other disposition of a matter before the Court is an ORDER. A
memorandum or order shall not identify its author, nor shall it be designated "Per Curiam."
All opinions are published; no memoranda are published; orders are not pub- lished except by order of the court. As
used in this rule, the term PUBLICATION means to make a disposition available to legal publishing companies to
be reported and cited.

CIRCUIT RULE 36-2
CRITERIA FOR PUBLICATION
A written, reasoned disposition shall be designated as an OPINION only if it:
(a) Establishes, alters, modifies or clarifies a rule of law, or
(b) Calls attention to a rule of law which appears to have been generally overlooked, or
(c) Criticizes existing law, or
(d) Involves a legal or factual issue of unique interest or substantial public importance, or
(e) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless
the panel determines that publication is unnecessary for clarifying the panel's disposition of the case, or
(f) Is a disposition of a case following a reversal or remand by the United States Supreme Court, or
(g) Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression
requests publication of the disposition of the Court and the separate expression.


It looks like Larry's case didn't meet any of the above criteria for an opinion. Issuing an opinion is entirely to the discretion of an appelate court, Larry. Guess they felt your case wasn't worth writing one.

>>>You are just a lousy fink who takes the side of crooked judges, attorneys, politicians, etc., against the little guy -- e.g., me.

Kevin, you are a lousy stupid pest and I wish that you would just drop dead and go to hell so that I could spend more of my time writing new articles for this blog instead of wasting time answering your asinine comments.<<<

Ah, the tantrums of the sore loser.

Wednesday, November 08, 2006 3:38:00 PM  
Blogger Larry Fafarman said...

Kevin bullshits --
>>>>>There is absolutely no need for a judge to invoke Rule 52. It exists, and as a plaintiff, you are responsible for knowing the Rules. <<<<<

You stupid, fatheaded piece of shit, court documents are not supposed to assume that the reader knows anything ! When a particular authority ( a law, rule, precedent, etc. ) is applied, the court document is supposed to cite it, no matter how well-known that authority might be. The readers are not expected to try to read the mind of the author of the document.

>>>>>Larry's case never went to trial - it doesn't matter whether it was supposed to be a non-jury trial. <<<<<

Findlaw defines a "trial" as a "judicial examination of the issues of fact or law disputed by parties for the purpose of determining the rights of the parties." By that definition, my case went to trial. The Federal Rules of Civil Procedure has no glossary of terms, so I am free to use any accepted definition of "trial" that I choose.

>>>>>>in other words, the judgements were not dispositive. <<<<<

You stupid, fatheaded ignoramus, any judgment that disposes of the case is by definition "dispositive."

>>>>>> Notes of Advisory Committee on Rules—1991 Amendment <<<<<<

LOL. So I, a pro se litigant, was not only supposed to know all the rules, but also was supposed to know all the advisory committee notes for the rules!

I don't give a shit about the notes of an advisory committee. These notes only give the reasons for changing the rules -- they are not supposed to be needed for interpreting the rules, which should be able to stand alone. My FRCP reference, from the Cornell Law School, does even include advisory committee notes.

Also, regarding the following provision in Rule 52(a) --

Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in subdivision (c) of this rule.(emphasis added)

However, neither Rule 12 nor Rule 56 reference Rule 52(a), nor do Rule 12 or Rule 56 have their own statements of this provision. A very good reason why this provision of Rule 52(a) should be considered null and void !

>>>>>There is no Rule requiring an opinion to accompany a judgement at the appellate level. <<<<<

Nor is there any rule allowing an unreasoned judgment (I didn't use the term "opinion" here because that term is used by the 9th circuit to mean an opinion that is going to be published).

>>>>>>It looks like Larry's case didn't meet any of the above criteria for an opinion. <<<<<

You stupid, feebleminded birdbrain -- these criteria are only for opinions that are going to be published ! The 9th circuit rule 36-1 says, "All opinions are published." The 9th circuit just happens to define "opinion" as an opinion that is going to be published.

You are a no-good lousy piece of shit who is taking advantage of my no-deletions policy. Compare my blog with the Dispatches from the Culture Wars blog of Ed "it's my way or the highway" Brayton. He kicked me off his blog because he didn't like my literal interpretation of a federal court rule.

Wednesday, November 08, 2006 6:52:00 PM  

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