Thomson-Scientific is violating law in UK
An email that I received from Thomson-Scientific contained the following information:
That really surprised me because I always thought of Thomson affiliate Thomson-West as being a quintessentially American company -- it is one of the largest publishers, if not the largest publisher, of law books in the USA. Maybe Thomson-West once was an independent American company -- I think it was known as Westlaw (at least that was the name printed in law books). Talk about globalization!
Anyway, as I pointed out, a Thomson-Scientific scientific database, the ISI Web of Knowledge, lists the Panda's Thumb blog, which practices IP address blocking, which -- as I show here and here -- is illegal in the UK, where Thomson-Scientific is incorporated. So Thomson-Scientific is in cahoots with bloggers who are violating the law in the very country where Thomson-Scientific is incorporated!
American courts have not only started to cite blogs but have also started to cite foreign laws. So maybe American courts could convict Thomson-Scientific under UK laws (that would save me the trouble of suing Thomson-Scientific in a UK court). LOL
.
The Thomson Corporation PLC is a company incorporated under the laws of England and Wales (registered number 2978875) having its registered office and address for service at First Floor, The Quadrangle, 180 Wardour Street, London W1A 4YG
That really surprised me because I always thought of Thomson affiliate Thomson-West as being a quintessentially American company -- it is one of the largest publishers, if not the largest publisher, of law books in the USA. Maybe Thomson-West once was an independent American company -- I think it was known as Westlaw (at least that was the name printed in law books). Talk about globalization!
Anyway, as I pointed out, a Thomson-Scientific scientific database, the ISI Web of Knowledge, lists the Panda's Thumb blog, which practices IP address blocking, which -- as I show here and here -- is illegal in the UK, where Thomson-Scientific is incorporated. So Thomson-Scientific is in cahoots with bloggers who are violating the law in the very country where Thomson-Scientific is incorporated!
American courts have not only started to cite blogs but have also started to cite foreign laws. So maybe American courts could convict Thomson-Scientific under UK laws (that would save me the trouble of suing Thomson-Scientific in a UK court). LOL
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posted by Larry Fafarman | 4/20/2007 02:41:00 AM
27 Comments:
> So maybe American courts could convict Thomson-Scientific under UK laws <
No wonder your law career was so abysmal!
ViW, damn you, do you always have to spoil a good joke?
Oh,please file this frivolous lawsuit, Larry. I'd love to see how quickly it got laughed out of court.
Of course, since IP address blocking is not illegal, not even Panda's Thumb is violating UK laws. Only a pettifogger would attempt to argue that IP address blocking is illegal.
I've yet to see Larry make a good argument about law. If he were in law school, he'd be called to the front of the room - to wear the dunce cap.
Kevin Vicklund wheezed,
>>>>>> Oh,please file this frivolous lawsuit, Larry. <<<<<<
It was just a joke, you stupid fathead.
>>>>>> Of course, since IP address blocking is not illegal, not even Panda's Thumb is violating UK laws. Only a pettifogger would attempt to argue that IP address blocking is illegal. <<<<<<
It is illegal in the UK and possibly elsewhere in Europe, dunghill. I showed that in the posts I cited. And I wasn't the first to point out that it is illegal in the UK -- Wikipedia pointed that out before I did. I thought that you regarded Wikipedia as infallible -- you are in complete agreement with Wikipedia's refusal to list "Of Pandas and People" as a banned book.
>>>>>> I've yet to see Larry make a good argument about law. If he were in law school, he'd be called to the front of the room -- to wear the dunce cap.<<<<<<<
If I were in law school, I'd be called to the front of the room to be at the head of the class.
> If I were in law school, I'd be called to the front of the room to be at the head of the class. <
Delusional! Here is proof.
Voice in the Wilderness said...
>>>>>>> If I were in law school, I'd be called to the front of the room to be at the head of the class. <
Delusional! Here is proof. <<<<<
Putting me at the head of the class was Kevin Vicklund's idea. So who is delusional?
>>>Putting me at the head of the class was Kevin Vicklund's idea.<<<
No, Larry, I was mocking how you constantly brag that your inane, black=white, "I don't understand basic jurisprudence" arguments would put you at the head of the class. Yet you don't even know how to properly invoke subject matter jurisdiction in an original action in federal court! That is the most basic requirement to be successful in federal court, yet Larry clearly doesn't understand the most fundamental part of federal jurisprudence.
By the way, Wikipedia does not point out that IP address blocking is illegal, and in neither of the posts you referenced did you show that it was. Why do you insist on lying when you are so easily shown to be wrong?
Kevin Vicklund driveled,
>>>>>>>you don't even know how to properly invoke subject matter jurisdiction in an original action in federal court! That is the most basic requirement to be successful in federal court, yet Larry clearly doesn't understand the most fundamental part of federal jurisprudence. <<<<<<<
Let's go over this once more, you stupid fathead.
Under federal law, there is general federal pre-emption of emissions regulations for new vehicles, except that California may request the US EPA to waive this pre-emption for specific rules. Everyone kept saying that this US EPA waiver requirement did not apply to the smog impact fee because the fee was supposedly a "used car" regulation. However, the fee was really a new-car regulation because it was entirely retroactively based on a car's new-car emissions certification, California or federal. You could take a federal car and convert it to solar cell power, sail power, or pedal power and you would still have to pay a "smog impact fee" on the car. I was vindicated when a former top administrator of a California auto emissions control agency testified in state court that the fee required approval of the US EPA. As I said, it was a federal case.
>>>>>> By the way, Wikipedia does not point out that IP address blocking is illegal, and in neither of the posts you referenced did you show that it was. <<<<<<
Wikipedia did not have to point out that IP address blocking is illegal in the UK -- that illegality is obvious from the following Wikipedia statement shown in this post --
Websites that provide for third party interception of IP addressing information and Traffic Data, without Website visitor consent, are committing a criminal offence in the UK by virtue of the Regulation of Investigatory Powers Act 2000,
An independent blogger using a blog service is a third party.
Also, the EU requires,
1. Member States shall provide that personal data must be:
- - - - - - - - -
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed . . . . .
IP address blocking requires keeping personal data -- i.e., IP addresses -- "in a form which permits identification of data subjects" for "longer than is necessary for the purposes for which the data were collected . . . . ."
>>>Let's go over this once more, you stupid fathead.<<<
With pleasure, oh purveyor of childish insults.
>>>Under federal law, there is general federal pre-emption of emissions regulations for new vehicles, except that California may request the US EPA to waive this pre-emption for specific rules.<<<
A correct statement.
>>>Everyone kept saying that this US EPA waiver requirement did not apply to the smog impact fee because the fee was supposedly a "used car" regulation.<<<
Also correct, but let's define "everyone": the EPA, the plaintiffs in the state case, the expert witness, and most importantly, the State Court of Appeals. In fact, the finding by the court that the Smog Fee was a used car regulation was the determining factor in the ruling that the fee was unconstitutional under the Commerce Clause.
>>>However, the fee was really a new-car regulation because it was entirely retroactively based on a car's new-car emissions certification, California or federal.<<<
And yet the Court rejected this argument. Not doing so well, are you?
>>>You could take a federal car and convert it to solar cell power, sail power, or pedal power and you would still have to pay a "smog impact fee" on the car.<<<
Which is part of why it was ruled uncontitutional as a used car regulation.
>>>I was vindicated when a former top administrator of a California auto emissions control agency testified in state court that the fee required approval of the US EPA.<<<
And just why did he say that the fee required approval?
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.
Testifying that the entire basis of your argument is incorrect hardly counts as vindication, Larry. Also, since the fee was not part of the waiver, the statute is simply a state law barred by federal regulation, and therefore subject to the Tax Injunction Act. In other words, Mr. Austin's testimony supported the contention that it was not a federal case.
>>>As I said, it was a federal case.<<<
Under what statute? Please be specific. You have yet to demonstrate that you know how to properly invoke federal jurisdiction for anything other than appeals.
Kevin said,
>>>> With pleasure, oh purveyor of childish insults. <<<<<
So you think that your comments don't insult me?
>>>>> the finding by the court that the Smog Fee was a used car regulation was the determining factor in the ruling that the fee was unconstitutional under the Commerce Clause. <<<<<<
Absolutely false. To find a Commerce Clause violation, all the court had to find was that the fee inexcusably placed out-of-state car sellers at a disadvantage in comparison to in-state car sellers, regardless of whether the fee was a used-car regulation or a new-car regulation. And as I said, the fee had nothing to do with emissions from used-cars -- the fee was entirely retroactively based on a vehicle's new-car emissions certification, California or federal.
The fee also violated the Privileges and Immunities Clause of the Constitution, but I don't know if the court made such a ruling.
>>>>> However, the fee was really a new-car regulation because it was entirely retroactively based on a car's new-car emissions certification, California or federal.<<<
And yet the Court rejected this argument. Not doing so well, are you? <<<<<<<
Which courts are you saying rejected that argument, the state courts or the federal courts? The federal courts rejected the argument because I was a nobody that they were trying to get rid of as quickly as possible. A court's ruling that bears don't shit in the woods doesn't make it true.
>>>>>>You could take a federal car and convert it to solar cell power, sail power, or pedal power and you would still have to pay a "smog impact fee" on the car.<
Which is part of why it was ruled uncontitutional as a used car regulation. <<<<<<
No -- that is part of why the fee was not a used-car regulation at all.
>>>>>I was vindicated when a former top administrator of a California auto emissions control agency testified in state court that the fee required approval of the US EPA. <<<<<
And just why did he say that the fee required approval?
Finally, he opined that the California waiver did not cover the motor vehicle smog impact fee and a separate waiver would be required.<<<<<<
That is what I said -- I said that he said that the fee required the approval (i.e., a separate waiver of federal pre-emption of auto emissions regulations) of the US EPA.
>>>>>> He noted the California waiver applied only to new vehicles. <<<<<<
That's true. But I said that the smog impact fee was retroactively based on the vehicles' new-car emissions certifications, California or federal. The fee had nothing to do with emissions from used cars -- to be considered a used-car emissions regulation, a regulation must of course concern emissions from used cars (duh) ! There was absolutely nothing that could be done to the federally-certified cars that could have exempted them from the fee. Also, in most cases, the federal and California emissions standards and emissions-control equipment were identical or nearly identical anyway, and the federal cars had to pass the same used-car smog checks as the California cars. In effect, California passed a law that every new car sold in the US -- before or after the enactment of the fee -- would forever be subject to the fee. It was in fact a new-car regulation, but as I pointed out above, it did not have to be a new-car regulation to be in violation of the Commerce Clause.
>>>>>As I said, it was a federal case.<<<
Under what statute? <<<<<<
The mere fact that the fee required US EPA approval made it a federal case. Any case directly involving a federal party can be -- and usually is -- a federal case.
The applicable federal auto emissions statutes are in 42 USC §7543.
My complaint was also based on the following ruling in the Supreme Court case of Parden v. Terminal Railway of the Alabama State Docks Dept. (1964) --
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.
I correctly argued that California left "the sphere that is exclusively its own" when it enacted a tax that was based entirely on federal emissions laws and regulations and which owed its existence to those laws and regulations.
Kevin, stop trying to show off by pretending that you know more about the smog impact fee than I do. I spent years fighting this fee.
Our corrupt court system tries to intimidate pro se litigants by giving them the feeling that they cannot win even when they are completely right. That needs to come to an end.
> Kevin, stop trying to show off by pretending that you know more about the smog impact fee than I do. <
But he seems to know a great deal more. The volume of your false conceptions on this subject has no relation to its value.
> I spent years fighting this fee. <
Failing every time. Luckily for you others were to win their cases despite your muddying the waters.
> Our corrupt court system tries to intimidate pro se litigants by giving them the feeling that they cannot win even when they are completely right. <
Statistically pro se litigant better than attorneys. If you had ever been right, you may have found that.
>>>>>> the finding by the court that the Smog Fee was a used car regulation was the determining factor in the ruling that the fee was unconstitutional under the Commerce Clause. <<<<<<
>>>Absolutely false. To find a Commerce Clause violation, all the court had to find was that the fee inexcusably placed out-of-state car sellers at a disadvantage in comparison to in-state car sellers, regardless of whether the fee was a used-car regulation or a new-car regulation. And as I said, the fee had nothing to do with emissions from used-cars -- the fee was entirely retroactively based on a vehicle's new-car emissions certification, California or federal.<<<
Wrong! To find a Commerce Clause violation, the Court had to find that the used California-certified cars were not a separate class from the used federally-certified cars. The Court determined that being "retroactively based on a vehicle's new-car emissions certification" (as Larry puts it) did not create a separate class because both cars were used. The state tried to use your argument about retroactiveness and lost.
>>>The fee also violated the Privileges and Immunities Clause of the Constitution, but I don't know if the court made such a ruling.<<<
Of course it didn't. Only Larry is so insane as to think that clause would even apply. The equal protection clause was brought up, but the courts declined to rule on the issue.
>>>>>>>>> However, the fee was really a new-car regulation because it was entirely retroactively based on a car's new-car emissions certification, California or federal.<<<<<<<<<
>>>>>>And yet the Court rejected this argument. Not doing so well, are you? <<<<<<
>>>Which courts are you saying rejected that argument, the state courts or the federal courts? The federal courts rejected the argument because I was a nobody that they were trying to get rid of as quickly as possible. A court's ruling that bears don't shit in the woods doesn't make it true. <<<
The state Court, which would have benobvious if you had been bothered to actually pay attention. The federal courts never even considered the argument because you failed to establish subject matter jurisdiction. Any ruling by the federal courts on the merits would have been an advisory opinion, which is a big no-no in your book.
>>>>>>>>>You could take a federal car and convert it to solar cell power, sail power, or pedal power and you would still have to pay a "smog impact fee" on the car.<<<<<<<<<
>>>>>>Which is part of why it was ruled uncontitutional as a used car regulation. <<<<<<
>>>No -- that is part of why the fee was not a used-car regulation at all.<<<
No, it's why it was ruled a used-car registration regulation (and thus in violation of the state constitution) and not a used-car emissions regulation. If it had been ruled a new-car regulation, it would have been considered a separate class and thus not in violation of the Commerce Clause!
>>>>>>>>>I was vindicated when a former top administrator of a California auto emissions control agency testified in state court that the fee required approval of the US EPA. <<<<<<<<<
>>>>>>And just why did he say that the fee required approval?
Finally, he opined that the California waiver did not cover the motor vehicle smog impact fee and a separate waiver would be required.<<<<<<
>>>That is what I said -- I said that he said that the fee required the approval (i.e., a separate waiver of federal pre-emption of auto emissions regulations) of the US EPA.<<<
I know that's what you said. I included it to show that you were quote-mining, as usual.
>>>>>> He noted the California waiver applied only to new vehicles. <<<<<<
>>>That's true. But I said that the smog impact fee was retroactively based on the vehicles' new-car emissions certifications, California or federal. The fee had nothing to do with emissions from used cars -- to be considered a used-car emissions regulation, a regulation must of course concern emissions from used cars (duh) ! There was absolutely nothing that could be done to the federally-certified cars that could have exempted them from the fee. Also, in most cases, the federal and California emissions standards and emissions-control equipment were identical or nearly identical anyway, and the federal cars had to pass the same used-car smog checks as the California cars. In effect, California passed a law that every new car sold in the US -- before or after the enactment of the fee -- would forever be subject to the fee. It was in fact a new-car regulation, but as I pointed out above, it did not have to be a new-car regulation to be in violation of the Commerce Clause.<<<
And this whole line of argument was rejected by the Court. (The state Court, not the federal courts, since you seem to have the attention span of a gnat with ADD). The court ruled it a used car regulation.
>>>>>>>>>As I said, it was a federal case.<<<<<<<<<
>>>>>>Under what statute? <<<<<<
>>>The mere fact that the fee required US EPA approval made it a federal case. Any case directly involving a federal party can be -- and usually is -- a federal case.<<<
Wrong! The federal courts are courts of limited jurisdiction - there has to be a statute or provision in the Constitution or a treaty that specifically conveys jurisdiction to the federal courts. In order to name a federal party a defendant, the plaintiff must identify the statute that permits him to bring suit in federal court. So I ask again: Under what statute?
>>>The applicable federal auto emissions statutes are in 42 USC §7543.<<<
42 USC §7543 does not grant jurisdiction to the federal courts. It merely regulates what the states may and may not do. These are separate concepts. Please try again.
>>>My complaint was also based on the following ruling in the Supreme Court case of Parden v. Terminal Railway of the Alabama State Docks Dept. (1964) --<<<
>>>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.<<<
That part of the ruling states that Congress may make laws that affect a state when Congress has the authority to make such laws. Being subject to congressional regulation is not the same as being subject to federal jurisdiction - that is two separate branches of the federal government. Let's look at the conclusion of the paragraph Larry quotemined:
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.
This is not dicta, it is an essential part of the holding. It is not sufficient to demonstrate that Congress has the power to regulate state conduct; under Parden, Congress must have authorized lawsuits by private parties in order for someone like Larry to bring suit in federal court.
>>>I correctly argued that California left "the sphere that is exclusively its own" when it enacted a tax that was based entirely on federal emissions laws and regulations and which owed its existence to those laws and regulations.<<<
Which may be true, but it is not sufficient for subject matter jurisdiction. As indicated above (by the way, Larry, this phrase means "as I implied or stated earlier"), you also have to demonstrate that the regulation gives permission to bring suit in federal court. So again, I ask you: Which statutes grant permission? Be specific.
>>>Kevin, stop trying to show off by pretending that you know more about the smog impact fee than I do. I spent years fighting this fee.<<<
Then why aren't you familiar with the ruling of the State Court of Appeals? I don't claim to know more about the fee, I'm just claiming that you don't know how to invoke federal jurisdiction. I can't help it if you make factually incorrect assertions about the state case.
>>>Our corrupt court system tries to intimidate pro se litigants by giving them the feeling that they cannot win even when they are completely right. That needs to come to an end.<<<
Translation: Larry lost all his federal cases because he doesn't know the proper procedures to file in federal court. Of course, it doesn't help when you try to base your argument on a decision that the Supreme Court ruled a decade earlier was "bad law"...
Kevin, don't you ever give up? You can't refute me about the smog impact fee -- I am the world's foremost authority on federal issues concerning this fee. Why do you have such an inflated ego that you feel you must refute an expert in an area that you know nothing about?
>>>>> Wrong! To find a Commerce Clause violation, the Court had to find that the used California-certified cars were not a separate class from the used federally-certified cars. <<<<<
That's ridiculous, because they are separate classes. In some years, the emissions standards and emissions equipment on California-certified and federally-certified cars were substantially different. For example, for a few years, there was a trade-off between maximizing NOx control and maximizing CO control and California prioritized maximizing NOx control.
>>>>>> The state tried to use your argument about retroactiveness and lost. <<<<<
What the state tried to argue was that the smog impact fee was automatically covered by the federal law giving the US EPA the discretion to grant California's requests for waivers of federal pre-emption of specific federal new-vehicle emissions regulations -- that was of course absurd.
>>>>>>The fee also violated the Privileges and Immunities Clause of the Constitution, but I don't know if the court made such a ruling. <
Of course it didn't. Only Larry is so insane as to think that clause would even apply. <<<<<<
Well, the attorneys who sued in state court thought it applied -- were they insane too?
>>>>> The equal protection clause was brought up, but the courts declined to rule on the issue. <<<<<<
Courts often choose to rule on narrow grounds. The same thing happened in a lawsuit against an unconstitutional tax on out-of-state cars in Florida -- once the court ruled against the tax on commerce clause grounds, the court denied the ACLU's request for a ruling on grounds of the Privileges and Immunities Clause or something similar.
>>>>>>> The state Court, which would have benobvious if you had been bothered to actually pay attention. The federal courts never even considered the argument because you failed to establish subject matter jurisdiction. <<<<<
The question of whether it was a new-car emissions regulation or a used-car emissions regulation was crucial as to whether or not there was federal subject matter jurisdiction, because federal laws give the federal government jurisdiction over new-car emissions regulations but not over used-car emissions regulations. Now you are using Catch-22 type circular reasoning -- saying that the federal courts could not rule on a question of federal subject matter jurisdiction because it was not a federal case, and that it was not a federal case because the federal courts did not have subject matter jurisdiction.
>>>>> No, it's why it was ruled a used-car registration regulation (and thus in violation of the state constitution) and not a used-car emissions regulation. <<<<<<
As I remember, the fee violated the state constitution or state laws as well as violating the federal Constitution and federal laws.
You are certainly right about it not being a used-car emissions regulation -- it had nothing to do with emissions from used cars!
>>>>>> If it had been ruled a new-car regulation, it would have been considered a separate class and thus not in violation of the Commerce Clause! <<<<<
Absolutely wrong. If the fee had been ruled a new-car regulation (which is in fact what it essentially was), then it still would have been in violation of the Commerce Clause because the US EPA never granted California permission to impose the fee (the California waivers of federal pre-emption of new-vehicle emissions regulations may in some cases be considered federal approval of what would otherwise be Commerce Clause violations -- the Constitution gives Congress the power to regulate interstate commerce in ways that would otherwise be commerce clause violations).
>>>>> And this whole line of argument was rejected by the Court. (The state Court, not the federal courts, since you seem to have the attention span of a gnat with ADD). The court ruled it a used car regulation. <<<<<
As I said, it didn't matter whether it was a used-car regulation or a new-car regulation -- all that mattered was that it inexcusably placed out-of-state car sellers at a disadvantage in comparison to in-state car sellers.
The smog impact fee was just a crazy gimmick. If a car had federal new-car certification, nothing could be done to the car to avoid the smog impact fee. Imposition of the fee was entirely based on the new-vehicle emissions certification label under the hood. As I remember, the smog impact fee law prescribed up to one year in jail and up to $5000 in fines for removal or alteration of the label. California did not even have any jurisdiction at all over the emissions labels because those labels were the property of the federal government, which required the labels to be installed in new cars.
>>>>> 42 USC §7543 does not grant jurisdiction to the federal courts. <<<<<
Now you are really full of shit here. Lawsuits under this statute are usually tried in federal courts -- the smog impact fee was not tried in federal courts because it was such a crazy gimmick that a lot of people couldn't figure out what it really was.
>>>>>> That part of the ruling states that Congress may make laws that affect a state when Congress has the authority to make such laws. Being subject to congressional regulation is not the same as being subject to federal jurisdiction - that is two separate branches of the federal government. <<<<<
What I did was broadly apply one case's principles to another case. I said that California "left the sphere that was exclusively its own" when it enacted a tax that was entirely based on federal emissions laws and regulations and that owed its existence to those laws and regulations, and furthermore those laws and regulations gave California a special status that other states in general don't have (since the law was first passed, some other states have been allowed to adopt the California emissions regulations). Casey Luskin of the Discovery Institute showed that the same broad principles could be applied to dissimilar cases.
>>>>> This is not dicta, it is an essential part of the holding. It is not sufficient to demonstrate that Congress has the power to regulate state conduct; under Parden, Congress must have authorized lawsuits by private parties in order for someone like Larry to bring suit in federal court <<<<<
Wrong -- private party lawsuits do not necessarily have to be expressly authorized by Congress. And the Supreme Court has ruled that a plaintiff invoking a federal law need not show that the law was intended to benefit him.
>>>>>> As indicated above (by the way, Larry, this phrase means "as I implied or stated earlier"), you also have to demonstrate that the regulation gives permission to bring suit in federal court. So again, I ask you: Which statutes grant permission? <<<<<<
As I said, I do not necessarily need Congress's express authorization to sue in federal court. And part of my authorization came from the ruling in Parden v. Terminal Railway.
>>>>> Then why aren't you familiar with the ruling of the State Court of Appeals? <<<<<
I was not involved in the state court action. I read the court's opinion, but that was a long time ago and I don't remember it very well.
>>>>> I don't claim to know more about the fee, I'm just claiming that you don't know how to invoke federal jurisdiction. <<<<<<
To understand how federal jurisdiction applies in this case, you have to understand the fee. You didn't even know that most lawsuits under 42 USC §7543 are heard in federal courts.
>>>>>> Larry lost all his federal cases because he doesn't know the proper procedures to file in federal court. <<<<<<
No, I lost because: (1) the courts are in a hurry to get rid of small-time plaintiffs and (2) judges have a jealous prejudice against pro se litigants. California did not answer my arguments that invoked Parden, there was no oral hearing, and Judge TJ "Mad" Hatter issued no opinion. Any arguments you raise now are moot anyway, because I won my arguments in the courts by default.
>>>>>> Of course, it doesn't help when you try to base your argument on a decision that the Supreme Court ruled a decade earlier was "bad law"... <<<<<
?????? And what "bad law" was that?
Kevin, I am really not learning anything from this discussion. My only reason in continuing this discussion is to show others that you are full of crap.
Bill Carter (?) wheezes,
>>>>> Statistically pro se litigant better than attorneys. <<<<<
You have presented no reference to support that claim.
Judges might show some condescending paternalism towards pro se litigants who do not present persuasive arguments. However, judges tend to have extreme jealousy against pro se litigants who do present persuasive arguments. Only now have I become fully aware of the extent of the snobbery and jealousy in our legal system. For example, law journal articles written by law students are only called "notes," and court opinions' citations of just a few main journals of Ivy League law schools far outnumber the citations of other journals. Ivy League and Stanford law school grads have recent been grossly overrepresented on the Supreme Court -- in recent years, the Supreme Court has had only one graduate from another law school. The SC now has 5 grads from Harvard Law School alone.
And once again, you are claiming that I am wrong without trying to show why. I would be ashamed to post a vacuous comment like that.
BTW, you and that pettifogger Kevin Vicklund are both lousy rotten stinking finks for approving the abominable smog impact fee. The smog impact fee continued for many years after lawsuits against it were filed. If I had won my case in federal court, it might have greatly shortened the existence of the fee and more people would have gotten refunds.
>>>>> Statistically pro se litigant better than attorneys. <<<<<
> You have presented no reference to support that claim. <
It is not necessary to present evidence for such a well known fact. If you had ever been within a few hundred yards of a law school, you would know that attorneys hate to go against pro se litigants because the judges favor them.
> judges tend to have extreme jealousy against pro se litigants who do present persuasive arguments. <
You have shown no evidence to support that claim. Cite a single case in which that has occurred.
Once again, you are claiming that he is wrong without trying to show why.
> BTW, you and that pettifogger Kevin Vicklund are both lousy rotten stinking finks for approving the abominable smog impact fee. <
You pathetic imbecile. I haven't seen where anyone on this blog has ever supported the smog impact fee. They have only pointed out your demonstrated incompetence when you attempted to fight it.
>>>Kevin, don't you ever give up? You can't refute me about the smog impact fee -- I am the world's foremost authority on federal issues concerning this fee. Why do you have such an inflated ego that you feel you must refute an expert in an area that you know nothing about?<<<
You are the world's foremost expert on failed cases concerning this fee. All of you arguments have been refuted in one court or another, except for the trivial fact that it was eventually found unconstitutional for reasons opposite of what you gave.
>>>>>> Wrong! To find a Commerce Clause violation, the Court had to find that the used California-certified cars were not a separate class from the used federally-certified cars. <<<<<<
>>>That's ridiculous, because they are separate classes. In some years, the emissions standards and emissions equipment on California-certified and federally-certified cars were substantially different. For example, for a few years, there was a trade-off between maximizing NOx control and maximizing CO control and California prioritized maximizing NOx control.<<<
Nonetheless, the state court ruled that they were not a separate class, despite the state's contention to the contrary.
>>>>>> The state tried to use your argument about retroactiveness and lost. <<<<<<
>>>What the state tried to argue was that the smog impact fee was automatically covered by the federal law giving the US EPA the discretion to grant California's requests for waivers of federal pre-emption of specific federal new-vehicle emissions regulations -- that was of course absurd.<<<
What the state tried to argue was that the two types of cars were separate classes based on their new-vehicle emission classification. The state court rejected this argument. How many times do I have to point out the simple fact that the state court ruled the way it did?
>>>>>>>>>The fee also violated the Privileges and Immunities Clause of the Constitution, but I don't know if the court made such a ruling. <<<<<<<<<
>>>>>>Of course it didn't. Only Larry is so insane as to think that clause would even apply. <<<<<<
>>>Well, the attorneys who sued in state court thought it applied -- were they insane too?<<<
Sorry, wrong answer. Please reread the decision. The 12 or so "attorneys-of-record" argued that it violated the Equal Protection Clause, not the Immunities and Privileges Clause, as I stated earlier.
>>>>>> The equal protection clause was brought up, but the courts declined to rule on the issue. <<<<<<
>>>Courts often choose to rule on narrow grounds. The same thing happened in a lawsuit against an unconstitutional tax on out-of-state cars in Florida -- once the court ruled against the tax on commerce clause grounds, the court denied the ACLU's request for a ruling on grounds of the Privileges and Immunities Clause or something similar.<<<
Actually, the lower court ruled against the Equal Protection Clause (again, not the Privileges and Immunities Clause) claim, but the Supreme Court, as appellate courts are wont to do, only considered the most dispositive claim. That's one of the differences between trials on the merits and appeals - appeals generally only try to determine if the outcome was correct and don't dwell on all the side issues, unless there is a need to issue a precedent on one of the side issues.
>>>>>> The state Court, which would have benobvious if you had been bothered to actually pay attention. The federal courts never even considered the argument because you failed to establish subject matter jurisdiction. <<<<<<
>>>The question of whether it was a new-car emissions regulation or a used-car emissions regulation was crucial as to whether or not there was federal subject matter jurisdiction, because federal laws give the federal government jurisdiction over new-car emissions regulations but not over used-car emissions regulations. Now you are using Catch-22 type circular reasoning -- saying that the federal courts could not rule on a question of federal subject matter jurisdiction because it was not a federal case, and that it was not a federal case because the federal courts did not have subject matter jurisdiction.<<<
No, it's not a Catch-22. It's a matter of a leap of logic. Under Parden, you must:
A. Demonstrate that Congress has the authority to regulate the activity
B. Demonstrate that Congress, as part of that regulation, has granted jurisdiction to the federal courts, and has stated that amenity to suit is a requirement to participate in the activity
C. Allege a violation of a regulated activity
You can't skip part B, and you can't assume B automatically follows from A. But that is what you are trying to do here.
>>>>>> No, it's why it was ruled a used-car registration regulation (and thus in violation of the state constitution) and not a used-car emissions regulation. <<<<<<
>>>As I remember, the fee violated the state constitution or state laws as well as violating the federal Constitution and federal laws.<<<
That is, in fact, what I said. Thank you for corroborating my statement.
>>>You are certainly right about it not being a used-car emissions regulation -- it had nothing to do with emissions from used cars!<<<
You're right - it was all about illegally regulating used cars by claiming that it was justified based on new-car emissions - a claim rejected by the state Court.
>>>>>> If it had been ruled a new-car regulation, it would have been considered a separate class and thus not in violation of the Commerce Clause! <<<<<<
>>>Absolutely wrong. If the fee had been ruled a new-car regulation (which is in fact what it essentially was), then it still would have been in violation of the Commerce Clause because the US EPA never granted California permission to impose the fee (the California waivers of federal pre-emption of new-vehicle emissions regulations may in some cases be considered federal approval of what would otherwise be Commerce Clause violations -- the Constitution gives Congress the power to regulate interstate commerce in ways that would otherwise be commerce clause violations).<<<
Perhaps, but the state Court ruled otherwise.
>>>>>> And this whole line of argument was rejected by the Court. (The state Court, not the federal courts, since you seem to have the attention span of a gnat with ADD). The court ruled it a used car regulation. <<<<<<
>>>As I said, it didn't matter whether it was a used-car regulation or a new-car regulation -- all that mattered was that it inexcusably placed out-of-state car sellers at a disadvantage in comparison to in-state car sellers.<<<
The state Court thought that it did matter.
>>>The smog impact fee was just a crazy gimmick. If a car had federal new-car certification, nothing could be done to the car to avoid the smog impact fee. Imposition of the fee was entirely based on the new-vehicle emissions certification label under the hood. As I remember, the smog impact fee law prescribed up to one year in jail and up to $5000 in fines for removal or alteration of the label. California did not even have any jurisdiction at all over the emissions labels because those labels were the property of the federal government, which required the labels to be installed in new cars.<<<
Nice non-sequitor.
>>>>>> 42 USC §7543 does not grant jurisdiction to the federal courts. <<<<<<
>>>Now you are really full of shit here. Lawsuits under this statute are usually tried in federal courts -- the smog impact fee was not tried in federal courts because it was such a crazy gimmick that a lot of people couldn't figure out what it really was.<<<
Yes, lawsuits involving violations of 42 USC §7543 are often tried in federal court. But 42 USC §7543 is not the statute that grants jurisdiction. You've identified A and C, but not B.
>>>>>> That part of the ruling states that Congress may make laws that affect a state when Congress has the authority to make such laws. Being subject to congressional regulation is not the same as being subject to federal jurisdiction - that is two separate branches of the federal government. <<<<<<
>>>What I did was broadly apply one case's principles to another case. I said that California "left the sphere that was exclusively its own" when it enacted a tax that was entirely based on federal emissions laws and regulations and that owed its existence to those laws and regulations, and furthermore those laws and regulations gave California a special status that other states in general don't have (since the law was first passed, some other states have been allowed to adopt the California emissions regulations). Casey Luskin of the Discovery Institute showed that the same broad principles could be applied to dissimilar cases.<<<
Yes, you showed that it left it's sphere and is thus subject to regulation. But you didn't follow up, as Parden required, by showing that Congress had intended to abrogate the States 11th Amendment Immunity.
>>>>>> This is not dicta, it is an essential part of the holding. It is not sufficient to demonstrate that Congress has the power to regulate state conduct; under Parden, Congress must have authorized lawsuits by private parties in order for someone like Larry to bring suit in federal court <<<<<<
>>>Wrong -- private party lawsuits do not necessarily have to be expressly authorized by Congress.<<<
Wrong. The Supreme Court has consistently ruled since its inception that it does.
>>>And the Supreme Court has ruled that a plaintiff invoking a federal law need not show that the law was intended to benefit him.<<<
Another non-sequitor.
>>>>>> As indicated above (by the way, Larry, this phrase means "as I implied or stated earlier"), you also have to demonstrate that the regulation gives permission to bring suit in federal court. So again, I ask you: Which statutes grant permission? <<<<<<
>>>As I said, I do not necessarily need Congress's express authorization to sue in federal court. And part of my authorization came from the ruling in Parden v. Terminal Railway.<<<
You are wrong. You do need Congress's express authorization, and even Parden acknowledged that. The decision in Parden hinged on the fact that Congress had provided express authorization.
>>>>>> Then why aren't you familiar with the ruling of the State Court of Appeals? <<<<<<
>>>I was not involved in the state court action. I read the court's opinion, but that was a long time ago and I don't remember it very well.<<<
Then you might want to read it before you start making false claims about how the Court ruled
>>>>>> I don't claim to know more about the fee, I'm just claiming that you don't know how to invoke federal jurisdiction. <<<<<<
>>>To understand how federal jurisdiction applies in this case, you have to understand the fee. You didn't even know that most lawsuits under 42 USC §7543 are heard in federal courts.<<<
I know they're heard in federal court, moron. But it's a different statute that gives the authorization - a statute that you have failed to identify. You simply do not understand the most fundamental rule of federal jurisdiction.
>>>>>> Larry lost all his federal cases because he doesn't know the proper procedures to file in federal court. <<<<<<
>>>No, I lost because: (1) the courts are in a hurry to get rid of small-time plaintiffs and (2) judges have a jealous prejudice against pro se litigants. <<<
The words of a sore loser.
>>>California did not answer my arguments that invoked Parden,<<<
Not only were they not required to reply, you failed to properly invoke Parden - the responsibility is on you to provide the positive claim.
>>>there was no oral hearing,<<<
Not surprising, since you failed to provide proper grounds for subject matter jurisdiction.
>>>and Judge TJ "Mad" Hatter issued no opinion.<<<
Any opinion would have been advisory, because he had no jurisdiction. Besides, Rule 52(a) states that an opinion is not required.
>>>Any arguments you raise now are moot anyway, because I won my arguments in the courts by default.<<<
You won your arguments in the same manner that a stopped clock is right twice a day.
>>>>>> Of course, it doesn't help when you try to base your argument on a decision that the Supreme Court ruled a decade earlier was "bad law"... <<<<<<
?????? And what "bad law" was that?
Why, Parden, of course. You didn't even bother researching cases that referenced Parden, did you? It had been eviscerated by the Supreme Court a decade before your lawsuits, and was completely overturned three years later. What a dolt! You thought you had this great argument, and not only did you misinterpret it, you picked one that had been discredited!
>>>Kevin, I am really not learning anything from this discussion. My only reason in continuing this discussion is to show others that you are full of crap.<<<
I have enjoyed showing everyone how full of crap you are, and how you are deliberately ignorant. I know you will never learn anything, because you don't want to learn. But it's fun to show you up for the clueless windbag that you truly are.
BTW, I never claimed to support the Smog Impact Fee. I'm just showing how poorly you make legal arguments.
Holy shit -- I can't believe this.
Kevin Vicklund driveled,
>>>> All of you arguments have been refuted in one court or another, except for the trivial fact that it was eventually found unconstitutional for reasons opposite of what you gave. <<<<<<
Wrong, dunghill -- my arguments have never been refuted by any court, because (1) the federal courts did not respond to those arguments and (2) those arguments were never raised in state courts.
>>>>> What the state tried to argue was that the two types of cars were separate classes based on their new-vehicle emission classification. The state court rejected this argument. How many times do I have to point out the simple fact that the state court ruled the way it did? <<<<<<
Just because a court says something does not mean that the something is correct or that arguments to the contrary are not valid. Instead of trying to counter my arguments, you are trying to hide behind the rulings of the courts, and in many cases you are trying to hide behind phantoms -- i.e., rulings that the courts never made.
>>>>> Sorry, wrong answer. Please reread the decision. The 12 or so "attorneys-of-record" argued that it violated the Equal Protection Clause, not the Immunities and Privileges Clause, as I stated earlier. <<<<<
Whatever, I said that I wasn't sure which other clause they said it violated. I don't see where the Equal Protection clause comes in, unless there is an equal right to be protected from smog impact fees.
>>>>> You're right - it was all about illegally regulating used cars by claiming that it was justified based on new-car emissions - a claim rejected by the state Court. <<<<<
But the fee could not have been justified based on new-car emissions, either, because the US EPA never gave California permission to impose the fee. Under federal law, all California deviations from federal new-car emissions regulations must be approved by the US EPA.
>>>>> If the fee had been ruled a new-car regulation (which is in fact what it essentially was), then it still would have been in violation of the Commerce Clause because the US EPA never granted California permission to impose the fee (the California waivers of federal pre-emption of new-vehicle emissions regulations) <
Perhaps, but the state Court ruled otherwise. <<<<<<
Wrong -- I expressly remember that the state Court rejected California's absurd argument that the fee was automatically covered by the federal law giving the USA EPA authority to grant California permission (called "California waivers") to deviate from federal new-car emissions laws and regulations.
>>>>> As I said, it didn't matter whether it was a used-car regulation or a new-car regulation -- all that mattered was that it inexcusably placed out-of-state car sellers at a disadvantage in comparison to in-state car sellers. <
The state Court thought that it did matter. <<<<<<
It was a used-car regulation so far as state taxes were concerned, but it was not a used-car regulation so far as emissions were concerned -- it had nothing to do with emissions from used cars.
>>>>> Nice non-sequitor. <<<<<
Those are just the facts -- no non-sequitor is possible.
>>>>> Yes, lawsuits involving violations of 42 USC §7543 are often tried in federal court. But 42 USC §7543 is not the statute that grants jurisdiction. <<<<<
42 USC §7543 (b), by giving the US EPA authority to grant the California waivers of federal pre-emption, automatically grants the federal courts jurisdiction over challenges to those waivers.
>>>>>> . . . you showed that it left it's sphere and is thus subject to regulation. But you didn't follow up, as Parden required, by showing that Congress had intended to abrogate the States 11th Amendment Immunity. <<<<<
Again, you are full of shit. The 11th Amendment does not even give Congress the power to grant exceptions to it -- this amendment says,
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
I was a California citizen when I sued over the smog impact fee and so technically speaking the amendment did not apply to me, though I know that the courts have applied the amendment to citizens of the state being sued. IMO the 11th amendment should be repealed -- it is regularly ignored and arbitrarily enforced.
>>>>>> I know they're heard in federal court, moron. But it's a different statute that gives the authorization - a statute that you have failed to identify. <<<<<
You profoundly retarded nincompoop, put up or shut up. Identify this "different statute that gives the authorization."
BTW, I also sued the US EPA over the fee in the federal (or D.C.?) circuit court of appeals, and subject matter jurisdiction was granted! There was actually a decision on the merits, but of course it was an absurd decision. Also, my name appeared 31 times in a 49-page EPA ruling, even though my public comments did not directly address the subject of the ruling! You are very naive, Kevin, to not know that public officials will stop at nothing in their efforts to prevent the little guy from ever accomplishing anything.
>>>>> Any opinion would have been advisory, because he had no jurisdiction. <<<<<<
An opinion as to why there is no jurisdiction is not "advisory."
>>>>> The words of a sore loser. <<<<<
A loser who has been cheated has a right to be sore, dunghill.
>>>>> You won your arguments in the same manner that a stopped clock is right twice a day. <<<<<
And my "stopped clock" happened to be showing the correct time when I won my arguments.
>>>>> ?????? And what "bad law" was that?
Why, Parden, of course. <<<<<<
Parden was not a law, dunderhead -- it was a court decision.
>>>>> You didn't even bother researching cases that referenced Parden, did you? It had been eviscerated by the Supreme Court a decade before your lawsuits, and was completely overturned three years later. <<<<<
And what Supreme Court decisions overturned Parden? You are just a bag of hot air. And why didn't California and Judge TJ "Mad" Hatter point out that Parden had been overturned? Instead they just remained silent. Also, as a litigant it was obviously not my job to rebut my own arguments!
>>>>> I have enjoyed showing everyone how full of crap you are <<<<<<
You have shown nothing. You just present absurd arguments and talk a lot of hot air about secret laws and secret court decisions. Kevin, your comments here are just frivolous -- you are deliberately trying to waste my time.
>>>>> I know you will never learn anything, because you don't want to learn. <<<<<<
There is nothing I can learn from you. I already know everything about the smog impact fee and you know nothing. You are just an ignoramus and a pettifogger.
>>>>> I never claimed to support the Smog Impact Fee. <<<<<
Anyone truly opposed to the fee would support my lawsuit against it. Because it took so long to get rid of the fee, thousands of extra people paid this diabolical and flagrantly unconstitutional fee and thousands did not get refunds.
I have been incredibly patient in responding to your crap. In contrast, Fatheaded Ed Brayton did not give me even a single chance to respond to his reply when he kicked me off his blog permanently because I interpreted FRCP Rule 12 as giving judges the authority to dismiss lawsuits when the plaintiffs refuse to accept out-of-court settlements that offer relief equal to or greater than the maximum relief that the court could give.
> I was a California citizen when I sued over the smog impact fee <
States don't have citizens. You were a California Resident.
> and so technically speaking the amendment did not apply to me <
The smog fee law had nothing to do with where the car's owner was a resident. It only mattered where the car was previously registered. You purchased a car that had been registered out of state but had prior to that been registered in California and therefore was not subject to the tax. When you found that you would not have to pay this tax, you were furious.
> You are very naive, Kevin, to not know that public officials will stop at nothing in their efforts to prevent the little guy from ever accomplishing anything. <
Just because you are a little guy and accomplished nothing, you can't generalize.
> A loser who has been cheated has a right to be sore, dunghill. <
You were not cheated, asshole. You just lost. Get over it.
> And why didn't California and Judge TJ "Mad" Hatter point out that Parden had been overturned? <
An accident victim is brought in decapitated. An autopsy is conducted. They fail to mention that the decedent had advanced diabetes.
> I already know everything about the smog impact fee <
Kevin has shown that you know nothing. Read Kevin's posts and you might learn something.
>>>>> I never claimed to support the Smog Impact Fee. <<<<<
> Anyone truly opposed to the fee would support my lawsuit against it. <
Those who eventually won their cases against the fee considered you a bull in a china shop who was only muddying the waters. A person who opposed the fee would want you to get lost so they could get on with winning the case. They were concerned that they might be tarred with the brush that accurately portrayed you as a nut-case.
> I have been incredibly patient in responding to your crap. <
Kevin has not posted any crap. Your responses to him, however, usually are.
> he kicked me off his blog permanently because I interpreted FRCP Rule 12 ... <
You seem to believe that you are fooling someone by repeating this lie. We all know why you were kicked off and it had nothing to do with your interpretaion of FRCP Rule 12. Can't you find another drum to beat? This one is broken.
ViW driveled,
>>>>>> States don't have citizens. You were a California Resident. <<<<<
Wrong. The 14th Amendment says,
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Also, I used the term "citizen" to be consistent with the 11th Amendment.
>>>>> and so technically speaking the amendment did not apply to me <
The smog fee law had nothing to do with where the car's owner was a resident. <<<<<<
I was obviously talking about the 11th amendment and not the smog fee law, dodo.
>>>>> You purchased a car that had been registered out of state but had prior to that been registered in California and therefore was not subject to the tax. <<<<<<
Right. The car had federal new-vehicle emissions certification and had out-of-state registration when I bought it, but the dealer told me that the car was exempt from the smog impact fee because someone else had paid the fee on the car when switching from out-of-state to California registration. But I was so pissed off about the fee that I decided to sue the bastards anyway.
>>>>> You were not cheated, asshole. You just lost. Get over it. <<<<<<
I showed you, Kevin Vicklund, etc. to be complete nincompoops. Get over it.
Shit, look at the abuse I get for my dedicated efforts to defend our Constitution.
>>>>>> Those who eventually won their cases against the fee considered you a bull in a china shop who was only muddying the waters. <<<<<
Wrong, dunghill, again you are spouting off about something about which you know nothing. My lawsuit had no effect on their lawsuit. Also, I gave them some information and they were grateful.
>>>>>> he kicked me off his blog permanently because I interpreted FRCP Rule 12 ... <
You seem to believe that you are fooling someone by repeating this lie. <<<<<<
I have already proven this, dunghill.
>>>>> You purchased a car that had been registered out of state but had prior to that been registered in California and therefore was not subject to the tax. <<<<<<
> Right. The car had federal new-vehicle emissions certification and had out-of-state registration when I bought it, but the dealer told me that the car was exempt from the smog impact fee because someone else had paid the fee on the car when switching from out-of-state to California registration. But I was so pissed off about the fee that I decided to sue the bastards anyway. <
You hunted all over to find a car with an out of state retistration and the best you could do was find a brush painted victim of a multitude of accidents? You should have kept looking. If you actually found one on which you paid the fee, you would have had standing in the courts.
> I showed you, Kevin Vicklund, etc. to be complete nincompoops. <
Only in your tortured minds. Kevin is always proving you to be a legal wannabe. Get over it.
> Shit, look at the abuse I get for my dedicated efforts to defend our Constitution. <
Your efforts to joust at windmills.
> again you are spouting off about something about which you know nothing. <
You are always spouting off about law of which you have proven you know nothing.
> Also, I gave them some information and they were grateful. <
They no doubt pretended to be grateful to prevent your going into a hissy fit and muddying the waters even further.
>>>>>> he kicked me off his blog permanently because I interpreted FRCP Rule 12 ... <
You seem to believe that you are fooling someone by repeating this lie. <<<<<<
> I have already proven this <
No. Many have proven the real reason you were thrown off. You are only showing yourself to be the delusional imbecile that you are, dunghill.
>>>Parden was not a law, dunderhead -- it was a court decision.<<<
I didn't say it was a law. I said that the Supreme Court had ruled it bad law. More precisely, the Supreme Court held that it was "no longer good law" - I apologize for the slight inaccuracy, if there is any. You might want to look up "caselaw" in a dictionary. Or even Wikipedia.
>>>>>> You didn't even bother researching cases that referenced Parden, did you? It had been eviscerated by the Supreme Court a decade before your lawsuits, and was completely overturned three years later. <<<<<<
>>>And what Supreme Court decisions overturned Parden? You are just a bag of hot air.<<<
It was a long, drawn out process. However, the case that put the final nail in the coffin of Parden contains a brief recap of the rise and fall of the Parden decision. Excerpted from COLLEGE SAVINGS BANK V. FLORIDA PREPAID POSTSECONDARY ED. EXPENSE BD.,527 U.S. 666 (1999):
There is no suggestion here that respondent Florida Prepaid expressly consented to being sued in federal court. Nor is this a case in which the State has affirmatively invoked our jurisdiction. Rather, petitioner College Savings and the United States both maintain that Florida Prepaid has “impliedly” or “constructively” waived its immunity from Lanham Act suit. They do so on the authority of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964)–an elliptical opinion that stands at the nadir of our waiver (and, for that matter, sovereign immunity) jurisprudence. In Parden, we permitted employees of a railroad owned and operated by Alabama to bring an action under the Federal Employers’ Liability Act (FELA) against their employer. Despite the absence of any provision in the statute specifically referring to the States, we held that the Act authorized suits against the States by virtue of its general provision subjecting to suit “[e]very common carrier by railroad … engaging in commerce between … the several States,” 45 U.S.C. § 51 (1940 ed.). We further held that Alabama had waived its immunity from FELA suit even though Alabama law expressly disavowed any such waiver:
Interjection: note that authorization of suit was by virtue of a general provision for suit. In other words, Congress had to give permission to sue.
“By enacting the [FELA] … 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.” 377 U.S., at 192.
Again, the Supreme Court is emphasizing that the Congress had required violators to be amenable to suit.
The four dissenting Justices in Parden refused to infer a waiver because Congress had not “expressly declared” that a State operating in commerce would be subject to liability, but they went on to acknowledge–in a concession that, strictly speaking, was not necessary to their analysis–that Congress possessed the power to effect such a waiver of the State’s constitutionally protected immunity so long as it did so with clarity. Id., at 198—200 (opinion of White, J.).
Again, reliance on whether Congress had created rules subjecting violators to liability. Notice a trend?
Only nine years later, in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279 (1973), we began to retreat from Parden. That case held–in an opinion written by one of the Parden dissenters over the solitary dissent of Parden’s author–that the State of Missouri was immune from a suit brought under the Fair Labor Standards Act by employees of its state health facilities. Although the statute specifically covered the state hospitals in question, see 29 U.S.C. § 203(d) (1964 ed.), and such coverage was unquestionably enforceable in federal court by the United States, 411 U.S., at 285—286, we did not think that the statute expressed with clarity Congress’s intention to supersede the States’ immunity from suits brought by individuals. We “put to one side” the Parden case, which we characterized as involving “dramatic circumstances” and “a rather isolated state activity,” 411 U.S., at 285, unlike the provision of the Fair Labor Standards Act in question that applied to a broad class of state employees. We also distinguished the railroad in Parden on the ground that it was “operated for profit” “in the area where private persons and corporations normally ran the enterprise.” 411 U.S., at 284. Justice Marshall, joined by Justice Stewart, went even further, concluding that although, in their view, Congress had clearly purported to subject the States to suits by individuals in federal courts, it lacked the constitutional authority to do so. Id., at 287, 289—290 (opinion concurring in result).
The statute in question stated, in part, that "Action to recover such liability may be maintained in any court of competent jurisdiction." The Court found that "The history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State" and thus Congress had not superceded state immunity.
The next year, we observed (in dictum) that there is “no place” for the doctrine of constructive waiver in our sovereign-immunity jurisprudence, and we emphasized that we would “find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal quotation marks omitted). Several Terms later, in Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468 (1987), although we expressly avoided addressing the constitutionality of Congress’s conditioning a State’s engaging in Commerce-Clause activity upon the State’s waiver of sovereign immunity, we said there was “no doubt that Parden’s discussion of congressional intent to negate Eleventh Amendment immunity is no longer good law,” and overruled Parden “to the extent [it] is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language,” 483 U.S., at 478, and n. 8.
I believe you just got "pwned" Larry. I should point out something. Larry cited Edelman v. Jordan in at least one of his briefs!
>>>And why didn't California and Judge TJ "Mad" Hatter point out that Parden had been overturned? Instead they just remained silent.<<<
Perhaps because the State had already cited cases overruling Larry's interpretation of Parden, such as, oh, Employees v. Missouri or QUERN v. JORDAN, 440 U.S. 332 (1979). Why repeat an argument already made?
>>>Also, as a litigant it was obviously not my job to rebut my own arguments!<<<
As a litigant, it is your responsibility to a) make sure that your citations are still considered good law (in fact, lawyers can be sanctioned for citing overturned caselaw), and b) make sure that your arguments haven't already been rebutted by previous pleadings.
But I have always tried to be charitable towards my opposition and give credit where credit is due. Larry makes an astute observation:
>>>The 11th Amendment does not even give Congress the power to grant exceptions to it<<<
This is, in fact, the basis upon which College Savings Bank v. Florida Prepaid was decided, and thus, the basis upon which the last vestiges of Parden were removed from federal caselaw.
Cyberbully and pettifogger Kevin Vicklund said,
>>>>>> More precisely, the Supreme Court held that it was "no longer good law" - I apologize for the slight inaccuracy, if there is any. You might want to look up "caselaw" in a dictionary. Or even Wikipedia. <<<<<
"Slight" inaccuracy? When the word "law" is used alone, in normally means statutory law. When you first used the term "law" here, you didn't say anything about what you were talking about. Even if you had said "case law," I might not have guessed what you were talking about.
The first thing I want to point out is that neither California nor Judge TJ "Mad" Hatter presented any arguments as to why Parden v. Terminal Railway did not apply to my case. And no -- judges and attorneys never get any credit for things that they did not say. And judges are reinterpreting past decisions all the time -- the courts could decide to reactivate Parden in a future case, or come up with a new reason for denying state immunity in federal courts.
I sued California and the US EPA under the provisions of 42 USC §7543, which provides for general federal pre-emption of new-vehicle emissions regulations and authorizes the US EPA to grant pre-emption waivers to California. Private entities such as auto companies sue California and the US EPA in the federal courts under the provisions of 42 USC §7543 even though this statute does not expressly authorize such suits -- so much for your idea that the states may not be sued by private entities in federal courts without express authorization of Congress or the states' permission. I claimed that the federal courts had jurisdiction because the smog impact fee was really a (retroactive) new-vehicle emissions regulation -- it certainly was not a used-vehicle emissions regulation because it had nothing to do with the emissions from used cars. The testimony of a former top administrator of a California auto emissions control agency agreed with my contention that the fee required the approval of the US EPA. Don't tell me that the California courts determined that this fee was really a used-vehicle emissions regulation, because: (1) the California courts did not decide the case until long after my lawsuit, (2) California court rulings are not binding in the federal courts, and (3) you have presented no evidence that the California courts made such a determination.
Also, you misinterpreted COLLEGE SAVINGS BANK V. FLORIDA PREPAID POSTSECONDARY ED. EXPENSE BD.,527 U.S. 666 (1999), which said:
The next year, we observed (in dictum) that there is “no place” for the doctrine of constructive waiver in our sovereign-immunity jurisprudence, and we emphasized that we would “find waiver only where stated by the most express language OR by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” (emphasis added to the word "or")
The text of 42 USC §7543 gives "overwhelming implications" that private parties may sue California and the US EPA in federal courts under this statute's provisions. Without a right to sue under this statute, carmakers and car owners who feel unfairly burdened by a California emissions regulation would have no legal recourse.
BTW, the states recently sued the US EPA under the provisions of 42 USC §7543, even though this statute does not authorize the states to sue the federal government under this statute's provisions. The states claimed that this statute does not grant federal pre-emption of regulation of greenhouse gases from motor vehicles.
>>>>>> And why didn't California and Judge TJ "Mad" Hatter point out that Parden had been overturned? Instead they just remained silent. <<<
Perhaps because the State had already cited cases overruling Larry's interpretation of Parden, such as, oh, Employees v. Missouri or QUERN v. JORDAN, 440 U.S. 332 (1979). Why repeat an argument already made? <<<<<<
That is utter bullshit. The State never mentioned Parden -- I was the only one who discussed it. And even if the State had mentioned Parden, the State and the judge were still obligated to counter my Parden arguments.
Also, that Supreme Court decision that you said "put the final nail in the coffin of Parden" (COLLEGE SAVINGS BANK V. FLORIDA PREPAID POSTSECONDARY ED. EXPENSE BD.,527 U.S. 666 (1999)) was published four years after I filed my lawsuit.
>>>>> As a litigant, it is your responsibility to a) make sure that your citations are still considered good law (in fact, lawyers can be sanctioned for citing overturned caselaw), <<<<<
You are really full of crap here -- in civil cases, litigants are never required to rebut their own arguments. A litigant might anticipate a rebuttal by arguing against it, particular in a litigant's final brief, where the litigant would not get another chance to counter the rebuttal -- however, there is some risk in anticipating rebuttals because the opposing party might not bring up the rebuttal without being prompted. The rules are different in criminal courts, where prosecutors are required to reveal any evidence that would tend to exonerate the defendant.
>>>>> and b) make sure that your arguments haven't already been rebutted by previous pleadings. <<<<<<
As I said, there was no previous mention of Parden. And even if there had been a rebuttal of my Parden arguments, I still had the right to rebut the rebuttal.
Also, in my lawsuit against the Los Angeles County Board of Supervisors, the county attorney kept repeating a patently false claim after I repeatedly rebutted it, and he was not reprimanded by the judge for doing so. The false claim was that I was required to give advance notice of intent to sue -- that was required only for a monetary suit, which my suit was not.
>>>>>>The 11th Amendment does not even give Congress the power to grant exceptions to it <
This is, in fact, the basis upon which College Savings Bank v. Florida Prepaid was decided, and thus, the basis upon which the last vestiges of Parden were removed from federal caselaw. <<<<<<
Wrong. Your quotations of College Savings Bank nowhere rule that Congress does not have the power to grant exceptions to the 11th Amendment -- in fact, these quotations show that the Supreme Court held that Congress does have such power. Anyway, I think that the 11th Amendment ought to be repealed -- it is pointless and inconsistently applied.
And even if College Savings Bank were applicable -- and I have shown above that it is not -- it would still be irrelevant because it was published four years after I filed my lawsuit.
Practically none of your legal arguments are ever defensible.
Pettifogger and cyberbully Kevin Vicklund falls flat on his face again.
>>>BTW, the states recently sued the US EPA under the provisions of 42 USC §7543, even though this statute does not authorize the states to sue the federal government under this statute's provisions. The states claimed that this statute does not grant federal pre-emption of regulation of greenhouse gases from motor vehicles.<<<
Before I respond, I need a quick clarification. You are referring to the recent Supreme Court decision Massachusetts v. EPA, correct? The one involving CO2 and other greenhouse gas emissions?
>>>>> You are referring to the recent Supreme Court decision Massachusetts v. EPA, correct? The one involving CO2 and other greenhouse gas emissions? <<<<<<
Of course. What else?
Also, Article III of the Constitution does not give states the power to sue the federal government.
Also, technically speaking (though the courts have often ruled otherwise), the 11th Amendment did not apply to me because I was a resident of the state (actually a citizen of the state, according to the 14th Amendment) that I was suing. Furthermore, I was also suing the US EPA pursuant to 42 USC §7543 and any immunity that California had under the 11th Amendment did not apply to the US EPA.
You can twist this thing every which way but loose.
>>>>>> You are referring to the recent Supreme Court decision Massachusetts v. EPA, correct? The one involving CO2 and other greenhouse gas emissions? <<<<<<
>>>Of course. What else?<<<
I wanted to make sure, since you got almost all the details wrong. First, it was the EPA, not the states, that were arguing that the Clean Air Act does not grant federal regulation of greenhouse gases from motor vehicles. The states were arguing that the Act did authorize regulation (because then California could enact regulations on greenhouse gases and the other states could adopt California's regulations, or they could just rely on the EPA regulations that would then have to be issued). In fact, the states did not even "sue ... under the provisions of 42 USC §7543. Instead, they sued to enforce 42 USC §7521; 42 USC §7543 is not even mentioned in any of the opinions! But jurisdiction in federal court (the DC Appeals Court, in this case) did not arise under 42 USC §7521. Let's go to the words of the Court to find out where jurisdiction arose:
We should say a few words about our jurisdiction under the Clean Air Act to review an EPA denial of a petition for rulemaking. Section 307(b)(1), 42 U.S.C. § 7607(b)(1), gives this court exclusive jurisdiction over "nationally applicable regulations promulgated, or final action taken, by the Administrator" under chapter 85 of the Act. The district courts, on the other hand, have jurisdiction over citizen suits to compel EPA to perform nondiscretionary acts or duties. 42 U.S.C. § 7604(a)(2); see Sierra Club v. Thomas, 828 F.2d 783, 787-92 (D.C.Cir.1987)... (the remainder of the paragraph analyzes the requirements of 7607 and concludes the Court does have jurisdiction under 7607 - WKV)
The jurisdiction of the federal courts regarding the provisions of 42 USC §7521 do not arise under 42 USC §7521 itself, but rather 42 USC §§7604,7607. In fact, those two sections govern all federal court jurisdiction for the entire Clean Air Act, including 42 USC §7543. Any private suit filed in federal court must conform with those two sections. Failure to do so will result in dismissal for lack of subject matter jurisdiction.
Anyone wanna place any bets on what these two sections have to say about 11th Amendment Immunity?
Pre-emptive clarification:
>>>because then California could enact regulations on greenhouse gases and the other states could adopt California's regulations<<<
See section 7507 of Title 42.
Cyberbully Kevin Vicklund said,
>>>>>I wanted to make sure, since you got almost all the details wrong. First, it was the EPA, not the states, that were arguing that the Clean Air Act does not grant federal regulation of greenhouse gases from motor vehicles. The states were arguing that the Act did authorize regulation (because then California could enact regulations on greenhouse gases and the other states could adopt California's regulations, or they could just rely on the EPA regulations that would then have to be issued). <<<<<<<<
OK, I am really confused about this lawsuit. I didn't know that the states were trying to force the US EPA to regulate automotive CO-2 emissions -- I thought that the states were seeking the right to regulate automotive CO-2 emissions themselves (you say that was one of the states' goals). I know that California has tried to regulate automotive CO-2 emissions indirectly by passing fuel efficiency standards and as a result ran into the issue of federal pre-emption of fuel efficiency standards. Trying to get this all straightened out would take more time than I care to spend in studying this lawsuit.
>>>>>>>The jurisdiction of the federal courts regarding the provisions of 42 USC §7521 do not arise under 42 USC §7521 itself, but rather 42 USC §§7604,7607. In fact, those two sections govern all federal court jurisdiction for the entire Clean Air Act, including 42 USC §7543. Any private suit filed in federal court must conform with those two sections. Failure to do so will result in dismissal for lack of subject matter jurisdiction. <<<<<<<
Wrong. In addition to 42 USC §7604 and §7607, there is also 5 USC §706, which I discuss below.
42 USC §7604, a "citizen suit" provision, authorizes citizens to sue the US EPA and state environmental agencies for failure to perform a "non-discretionary" duty. Since states and cities are not "citizens," they are not even eligible to sue under this provision. Actually, some private environmental organizations were co-plaintiffs in the above lawsuit against the EPA. Citizen suit statutes are arguably unconstitutional because no real or prospective injury to a plaintiff is required.
42 USC §7607 is only a procedure for challenging official US EPA rulemaking decisions that are based on formal public hearings that were announced in the Federal Register. If there was no such US EPA public hearing on automotive CO-2 emissions, then 42 USC §7607 did not apply.
However, there is also something called "abuse of discretion." 5 USC §706 gives the courts jurisdiction over agency actions that are alleged to be abuses of discretion, arbitrary and capricious, etc., and I charged that the US EPA abused its discretion by not doing anything about the smog impact fee. I claimed that the fee required EPA approval because the fee was really a new-car regulation in disguise. California new-car emissions regulations that do not get EPA approval are unenforceable. Here is 5 USC §706 --
5 U.S.C. § 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be -
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
All of these overlapping and conflicting statutes caused me no end of confusion in my lawsuits against the smog impact fee.
One thing I learned is that the courts often bend the rules for litigants with a lot of clout. For example, a big Los Angeles bus riders union successfully sued in federal court to force the Metropolitan Transportation Authority to spend more on buses and less on rail transport. The bus riders union claimed it was a civil rights issue because minorities tended to ride buses more than trains!
>>>>> Anyone wanna place any bets on what these two sections have to say about 11th Amendment Immunity? <<<<<<
I don't need to place any bets, because I already know the answer. 42 USC §7604 says,
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 . . .
IMO the 11th Amendment sucks and needs to go.
Anyway, we can argue about this until doomsday, but the fact remains that I was robbed because neither the state nor the judge even attempted to counter my Parden arguments. And I didn't even need Parden because I was also suing the US EPA. Also, by opposing my lawsuit, you have been supporting the grossly unconstitutional smog impact fee. Had my lawsuit succeeded, the fee would probably have been eliminated much sooner and thousands fewer people would have paid it and thousands more would have gotten refunds.
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