Misc RM 45    Misc reference material Part 1

 

Reference Material - For Information Only!

 

Over time we have collected a lot of reference material.

We figured it would be better to share with all rather than just delete it.

If you want it, keep it, otherwise just delete it. 

Due to the volume it will take more than one mailing.

 

 

 

Headings

The Law Legal Maximums

Courts Must Take Judicial Notice of Public Records

Courts In Derogation of the Course of the Common Law (Administrative Courts)

Preemption Doctrine

Temporary and Special Acts are Private Law

Executive Branch is Temporary and Special Act Private Law

The "Force and Effect of Law" - Substantive Regulations

Code of Federal Regulations Requirements

NonSubstantive Regulations Used by Agency are Void

Alaska Requires Substantive Regulations (Legislative Regulations)

Accusations and Remedy under the APA of Alaska

POINT SUSPENSION/REVOCATION NOTICE Letter

What or Who is DMV?

Who is "WINTERROWD, RALPH K?

 

 

The Law Legal Maximums

Lex non cogit ad impossibilia - the law does not compel the doing of impossibilities. (case cites omitted)

 

Impotentia excusat legem - the impossibility of doing what is required by the law excuses from the performance. (case cites omitted)

 

 

Courts Must Take Judicial Notice of Public Records

No formal introduction of the public records of rules and regulations are required and the courts of the United States are to take judicial notice. This holding is found in the adjudged decision of Caha v. United States, 152 U.S. 211, 221, 222 (1894), to wit:

     But we are of opinion that there was no necessity for a formal introduction in evidence of such rules and regulations. They are matters of which courts of the United States take judicial notice.

[T]he rules and regulations prescribed in pursuance of such authority become a mass of that body of public records of which the courts take judicial notice.

 

On judicial notice, see also Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 488 (1943) and The United States v. Heschmaker, 63 U.S. 392, 405 (1859).

 

The courts are to give public acts legal effect, and this is held in the adjudged decision of Armstrong v. United States, 80 U.S. 154, 156 (1871), to wit:

     This was a public act of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect.

 

Regardless of whether the sovereign is de jure or de facto, determinations by the executive or legislative branch binds the judges, even if not formally put into evidence, and this is held in the adjudged decision of Jones v. United States, 137 U.S. 202, 212, 214 (1890), to wit:

     Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances. Gelston v. Hoyt, 3 Wheat. 246, 324; U. S. v. Palmer, Id. 610; The Divina Pastora, 4 Wheat. 52; Foster v. Neilson, 2 Pet. 253, 307, 309; Keene v. McDonough, 8 Pet. 308; **84Garcia v. Lee, 12 Pet. 511, 520; Williams v. Insurance Co., 13 Pet. 415; U. S. v. Yorba, 1 Wall. 412, 423; U. S. v. Lynde, 11 Wall. 632, 638.  * * *  

 

All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings. U. S. v. Reynes, 9 How. 127; Kennett v. Chambers, 14 How. 38; Hoyt v. Russell, 117 U. S. 401, 404, 6 Sup. Ct. Rep. 881; Coffee v. Groover, 123 U. S. 1, 8 Sup. Ct. Rep. 1; State v. Dunwell, 3 R. I. 127; State v. Wagner, 61 Me. 178; Taylor v. Barclay, and Emperor of Austria v. Day, above cited; 1 Greenl. Ev. B 6. [Emphasis added]

 

 

Courts In Derogation of the Course of the Common Law (Administrative Courts)

Arising under the adjudged decision of The United States v. Bevans, 16 U.S. 336, 379 (1818) it is held that the common law was to be used for all terms and phases in the Constitution, and for ascertaining the bounds intended for the jurisdiction of the courts of the United States with three types of courts established, being courts of common law, equity, admiralty, and not any administrative court, to wit:

 

And not only must the common law be resorted to, for the interpretation of the technical terms and phrases of that science, as used in the constitution, but also for ascertaining the bounds intended to be set to the jurisdiction of other courts. In other words, the framers of the constitution must be supposed to have intended to establish courts of common law, of equity, and of admiralty, upon the same general foundations, and with similar powers, as the courts of the same descriptions respectively, in that system of jurisprudence with which they were all acquainted. [Emphasis added]

 

In the adjudged decision of Ex parte Henkes, 267 F.276, 281 (1919), it has been held that even in courts with a special, limited, inferior jurisdiction (administrative courts) must show on the record all of the essential or vital jurisdictional facts of the administrative courts of its authority to act in a particular case and its jurisdiction, to wit:

 

A court of special, limited, or inferior jurisdiction must by its record show all essential or vital jurisdictional facts of its authority to act in the particular case, and in what respect it has jurisdiction. This rule also applies to jurisdiction over special statutory proceedings exercised in derogation of, or not according to, the course of the common law. So the necessary jurisdictional facts must affirmatively appear by averment and proof to bring the case within the jurisdiction of such courts,' etc. [Emphasis added]

 

Also see the following cases with the same holdings, Nafus v. Department of Labor and Industries of Washington, 251 P. 877, 878 (1927); Smith v. Department of Labor and Industries, 95 P.2d 1031, 1033 (1939); MacVeigh v. Division of Unemployment Compensation et al., 142 P.2D 900, 901 (1943); and Okanogan Wilderness League, Inc. v. Town of Twisp, 947 P.2d 732, 743 (1997) dissenting opinion.

 

 

 

Preemption Doctrine

The preemption doctrine, which has its roots in the Supremacy Clause of the Constitution of the United States in Article VI clause 2 held that a federal interest is so dominant that the federal system will preclude the enforcement of state laws on the same subject and state regulations are nullified when in conflict with federal law and "when compliance with both federal and state regulations is a physical impossibility" and "[F]ederal regulations have no less pre-emptive effect than federal statutes." See Fidelity Federal Savings & Loan Assoc. v. Cuesta, 458 U.S. 141, 152, 153, 154 ( 1982).

 

As held in the adjudged decision of Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984), the qualifications for preemption concerning state regulations and that federal preemption is valid "[W]here the state law stands as an obstacle to the accomplishment of the full purposes and objects of Congress", "[S]uch a conflict occurs either because 'compliance with both federal and state regulations is a physical impossibility', or "[B]ecause the state law stands 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

 

Temporary and Special Acts are Private Law

A special act is a private statute and an act which operates only upon particular persons or private concerns. See Unity v. Burrage, 103 U.S. 447, 454 (1880).

 

And further in Unity v. Burrage, 103 U.S. 447, 454 (1880), to wit:

'Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, &c., for public uses, all operate upon local subjects. They are not for that reason special or private acts.' In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. [Emphasis added]


And as found in the Constitution of the State of Alaska in Article II Section 19, to wit:

SECTION 19. LOCAL OR SPECIAL ACTS. The legislature shall pass no local or special act if a general act can be made applicable. Whether a general act can be made applicable shall be subject to judicial determination. Local acts necessitating appropriations by a political subdivision may not become effective unless approved by a majority of the qualified voters voting thereon in the subdivision affected. [Emphasis added]

 

 

Executive Branch is Temporary and Special Act Private Law

In the act of the legislature, the entire "Executive Branch" was created as a Temporary and Special Act in Chapter 64, Session Laws of Alaska, 1959 (hereafter "64 SLA 1959"), known as the State Organization Act of 1959. See the Temporary and Special Acts publication by the State and as this is a public record the courts must take judicial notice of same and it need not be entered into evidence.

 

This entire "Executive Branch", being a Temporary and Special Act is "private law", and is not under the supervision of the executive, even though the "Executive Branch" is in the Constitution of the State of Alaska under Article III under "The Executive". This is held in the adjudged decision of the Supreme Court of Alaska in Boehl v. Sabre Jet Room, Inc., 349 P.2d 585, 588 (1960), to wit:

The[ir] provision is made for creation by the legislature of regulatory agencies that are not under the supervision of the executive. [FN15] Such agencies would obviously have the function of exercising authority and control in places where the legislature has decided not to exercise all the authority and control itself. This would be a delegation of legislative power and the constitution provides for it.

FN15. Alaska Constitution, Art. III, 1313 22, 24, 26. [Emphasis added]

 

The particular sections within this executive branch of the "The Executive" of Article III are sections 22, 24 and 26 in the Constitution of the State of Alaska not under executive supervision are as follows:

SECTION 22. EXECUTIVE BRANCH. All executive and administrative offices, departments, and agencies of the State government and their respective functions, powers, and duties shall be allocated by law among and within not more than twenty principal departments, so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial, and temporary agencies may be established by law and need not be allocated within a principal department.

 

SECTION 24. SUPERVISION. Each principal department shall be under the supervision of the governor.

 

SECTION 26. BOARDS AND COMMISSIONS. When a board or commission is at the head of a principal department or a regulatory or quasi-judicial agency, its members shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and may be removed as provided by law. They shall be citizens of the United States. The board or commission may appoint a principal executive officer when authorized by law, but the appointment shall be subject to the approval of the governor. [Emphasis added]

 

Now, we are to believe that by some means within Article II 1 that the legislative power of the State (sic) is vested in a legislature consisting of a senate with a membership of twenty and a house of representatives with a membership of forty means that a plenary Power exists in the legislature of "the State" to completely bypass all courts of law for the people domiciled in the territorially boundaries of Alaska under the guise of public rights? Unbelievable!

 

Then, pursuant to Boehl v. Sabre Jet Room, Inc., 349 P.2d 585, 590 (1960), the Legislative Council, an interim legislative committee, is charged with the duty of making recommendations to the legislature, and must annually review all agency regulations to determine if the legislative intent is being correctly followed. Of course this is the same Legislative Council in the CAS 24.20.080 that is participating in and carrying out the programs of the Council of State Governments ("CSG") as they apply to Alaska. Of course the CSG has several programs wherein private enterprises and others with their particular private agenda can and do by and through the CSG get their private desires implemented in Alaska. Again, unbelievable! This is a great example of the "administrative state" wherein the people have no separation of powers, and can be denied access to any court of law, depending on the whims of the legislature and other private parties.

 

Who is "the State"? Of course it is self-evident that "STATE OF ALASKA" did not come into the Union of the States as "one of the United States of America", but came in as a "State of the United States of America." And further the "STATE OF ALASKA" did not come into the Union of the States on an "equal footing with the original States", but instead came on an "equal footing with the other States."

 

 

The "Force and Effect of Law" - Substantive Regulations

It has been held in the adjudged decision of the Supreme Court of the United States and citing other adjudged decisions of the Supreme Court of the United States that only a substantive regulation has the force and effect of law and has a specific process accorded to it by the Administrative Procedures Act ("APA") to have "force and effect of law" that must be followed explicitly. This is found in the adjudged decision of Chrysler Corp. v. Brown, 441 U.S. 281, 295, 296, 301-303 (1979), to wit:

It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law." [FN18] This doctrine is so well established that agency regulations implementing federal statutes have been *296 held to pre-empt state law under the Supremacy Clause. [FN19] It would therefore take a clear showing of contrary legislative intent before the phrase "authorized by law" in B 1905 could be held to have a narrower ambit than the traditional understanding.

 

FN18. E. g., Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); Foti v. INS, 375 U.S. 217, 223, 84 S.Ct. 306, 310, 11 L.Ed.2d 281 (1963); United States v. Mersky, 361 U.S. 431, 437-438, 80 S.Ct. 459, 463, 4 L.Ed.2d 423 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed.  1375 (1937). * * *

 

In order for a regulation to have the "force and effect of law," it must have certain substantive characteristics and be the product of certain procedural requisites. The central distinction among agency regulations found in the APA is that between "substantive rules" on the one hand and "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice" on the other. [FN30] A "substantive *302 rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference. [FN31] But in Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), we **1718 noted a characteristic inherent in the concept of a "substantive rule." We described a substantive rule--or a "legislative-type rule," id., at 236, 94 S.Ct., at 1074--as one "affecting individual rights and obligations." Id., at 232, 94 S.Ct., at 1073. This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law." Id., at 235, 236, 94 S.Ct., at 1074. * * *


That an agency regulation is "substantive," however, does not by itself give it the "force and effect of law." The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes. As this Court noted in Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977)***

 

Likewise the promulgation of these regulations must conform with any procedural requirements imposed by Congress. Morton v. Ruiz, supra, 415 U.S. at 232, 94 S.Ct. at 1073. For agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which "assure fairness and mature consideration of rules of general application." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969). [Emphasis added]

 

Citing adjudged decisions of the Supreme Court of the United States and other sources it was held in Sea-Land Service, Inc. v. Department of Transp., 137 F.3d 640, 645 (D.C. Cir. 1998) that substantive regulations have the force and effect of law, regulations must be followed by citizens subject to legal consequences of law, and federal regulations count as law for Supremacy Clause, to wit:

The plain meaning of a statute is (at least for starters) the one produced by reading its words to have the meaning they do in most contexts, and in most contexts, "law" includes an administrative command backed by a criminal sanction. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979) (substantive agency regulations have "force and effect of law"); Singer v. United States, 323 U.S. 338, 345-46, 65 S.Ct. 282, 286-87, 89 L.Ed. 285 (1945) (regulations backed by criminal sanctions are law); General Motors Corp. v. Abrams, 897 F.2d 34, 39 (2d Cir.1990) (regulations and orders have force of law); Black's Law Dictionary 884 (6th ed.1990) ("That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law."); see also, e.g., Fidelity Federal Savings & Loan Assn v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (federal regulations count as law for Supremacy Clause). [Emphasis added]

 

Code of Federal Regulations Requirements

Contained in 1 CFR 5.2, it is self-evident that all documents that have general application and legal effect to be filed for public inspection, to wit:

1 CFR 5.2 Documents required to be filed for public inspection and published.

(a)     

(b)     Each document or class of documents required to be published by act of Congress.

(c)     Each document having general applicability and legal effect. [Emphasis added]

 

Contained in 1 CFR 22.2, the following clearly mandates that the authority be contained in parenthesis at the bottom of the text so that a substantive regulation may be identified and validated, to wit:

1 CFR 22.2 Authority citation.

The authority under which an agency issues a notice shall be cited in narrative form within text or in parentheses on a separate line following text. [Emphasis added]

 

Contained in the CFRs in 1 CFR 21.40, it is self-evident that the substantive regulation must have the statutory authority attached, to wit:

1 CFR 21.40 General requirements: Authority citations. Each section in a document subject to codification must include, or be covered by, a complete citation of the authority under which the section is issued, including-

(a) General or specific authority delegated by statute; and

(b) Executive delegations, if any, necessary to link the statutory authority to the issuing agency. [Emphasis added]

 

Contained in the CFRs, the agency (being the IRS) is clearly responsible for the correctness of its substantive regulations as printed in 1 CFR 21.41, to wit:

1 CFR 21.41 Agency responsibility.

(a)      Each issuing agency is responsible for the accuracy and integrity of the citations of authority in the documents it issues.

(b)     Each issuing agency shall formally amend the citations of authority in its codified material to reflect any changes therein. [Emphasis added]

 

 

NonSubstantive Regulations Used by Agency are Void

Agency actions by the use of nonsubstantive regulations are void or agencies failure to comply with rulemaking requirements of APA (Alaska) is fatal, and this is held in the adjudged decision of State of Ohio DHS v. U.S. DHHS, 862 F.2d 1228, 1237 (1988), to wit:

In the case before us, the agency's failure to comply with the rulemaking requirements of the Administrative Procedure Act is fatal to the validity of the maintenance amount ceiling rule. As Judge Manos observed in Standard Oil, 453 F.Supp. at 243, "agency action taken in disregard of statutory rulemaking procedures is void. See e.g. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 37 L.Ed.2d 270 (1974); Consumers Union of United States, Inc. v. Sawhill, 393 F.Supp. 639 (D.D.C.), affd per curiam, 523 F.2d 1404 (TECA 1975); Joseph v. United States Civil Service Comm'n, 18 U.S.App.D.C. 281, 294-95, 554 F.2d 1140, 1153-54 (1977); Rodway v. United States Dept. of Agriculture, 168 U.S.App.D.C. 387, 395, 514 F.2d 809, 817 (1975); United States v. Finley Coal Co., 493 F.2d 285, 291 (6th Cir.1974). As the Temporary Emergency Court of Appeals stated in California v. Simon, 504 F.2d 430, 439 (TECA, 1974) 'substantial compliance with rulemaking requirements is essential to the validity of administrative rules.' "

See also Pickus v. United States Bd. of Parole, 507 F.2d 1107, 1114 (D.C.Cir.1974) (rules not adopted in accordance with Administrative Procedure Act rulemaking requirements were invalid). [Emphasis added]

 

 

Alaska Requires Substantive Regulations (Legislative Regulations)

As held in the adjudged decision in Kelly v. Zamarello, 486 P.2d 906, 908, 909 (Alaska - 1971), regulations must have a public hearing, be based on the clear authority from the legislature by a grant of legislative power (statutes) and when the administrative agency is acting in a quasi-legislative capacity, the Supreme Court of the United States will not substitute it's judgment as to the content of the rule or regulation. This distinction between "legislative rule", which is a substantive regulation having the force and effect of law, differs from an "interpretative rule", and this holding is specifically held in the adjudged decision of the Supreme Court of the United States in Chrysler Corp. v. Brown, 441 U.S. 281, 295, 296, 301303 (1979). Therefore, the state agencies must promulgate substantive regulations and only such substantive regulations have the "force and effect of law."

 

In the "Drafting Manual For Administrative Regulations" ("DMFAR") 15th Edition of June 2002 (a public record) of the Department of Law, State of Alaska, was prepared to comply with CAS 44.62.050 (Foreword) and supply said style and form under CAS 44.62.040.

Under CAS 44.62.040(b), all state agencies must cite the general statutory authority under which a regulation is adopted as well as the citation of the specific statutory section being implemented, interpreted, or made clear with exceptions.

 

No part of ©AS.42.62.040(b), will apply if the regulation is not first noticed under CAS 44.62.200, as stated under the requirement of a public notice, to wit: "do[es] no apply to the adoption, amendment, or repeal of a regulation unless the adoption, amendment, or repeal is first noticed under AS 44.62.200 on or after September 3, 1995."

 

The ©Alaska Statute of CAS 44.62.040 is included because of its importance, to wit:

(a) Subject to (c) of this section, every state agency that by statute possesses regulation-making authority shall submit to the lieutenant governor for filing a certified original and one duplicate copy of every regulation or order of repeal adopted by it, except one that

(1)     establishes or fixes rates, prices, or tariffs;

(2)     relates to the use of public works, including streets and highways, under the jurisdiction of a state agency if the effect of the order is indicated to the public by means of signs or signals; or

(3)     is directed to a specifically named person or to a group of persons and does not apply generally throughout the state.

(b) Citation of the general statutory authority under which a regulation is adopted, as well as citation of specific statutory sections being implemented, interpreted, or made clear, must follow the text of each regulation submitted under (a) of this section.

(c) Before submitting the regulations and orders of repeal to the lieutenant governor under (a) of this section, every state agency that by statute possesses regulation making authority, except boards and commissions, the office of victims' rights, and the office of the ombudsman, shall submit to the governor for review a copy of every regulation or order of repeal adopted by the agency, except regulations and orders of repeal identified in (a)(1) -- (2) of this section. The governor may review the regulations and orders of repeal received under this subsection. The governor may return the regulations and orders of repeal to the adopting agency before they are submitted to the lieutenant governor for filing under (a) of this section (1) if they are inconsistent with the faithful execution of the laws, or (2) to enable the adopting agency to respond to specific issues raised by the Administrative Regulation Review Committee. The governor may not delegate the governor's review authority under this subsection to a person other than the lieutenant governor. [Emphasis added]

 

Also in the DMFAR it states "Regulations are rules adopted by agencies in the executive branch of government." This is the same executive branch in the Temporary and Special Acts (private law) of 64 SLA 1959 and Article III Section 22. It is clearly established that the regulation will have the "force and effect" of law if the substance of the regulation is valid, and if the state agencies follow the Administrative Procedures Act in the Alaska Statutes (CAS 44.62 et seq.) which is used in the DMFAR, to wit:

If the proper procedure is followed in adopting a regulation, and the substance of the regulation is valid, it will have the "force and effect" of law. To adopt a regulation, an agency must follow the APA as well as any additional statutory requirements set by the legislature that apply to that agency's particular program. [Emphasis added]

 

Further in the DMFAR it includes the definition of the term "regulation" under CAS 44.62.640(a)(3) clearly states that if anything affects the public or its rights it must be adopted under the APA as a regulation and that any agency action taken in the absence of necessary regulations will be invalid. The sections of the DMFAR as referenced on pages 3 and 4 are included due to the extreme importance proffered by the Department of Law under the Temporary and Special Acts (a private law exercised by a public body) of Chapter 64, Session Law of Alaska, 1959 ("64 SLA 1959") of the executive branch and the public's rights concerning substantive regulations, to wit:


WHEN ARE REGULATIONS NECESSARY?

In AS 44.62.640, the APA broadly defines "regulation" to include many provisions that a state agency would wish to enforce.

AS 44.62.640(a)(3) states:

(3)"regulation" means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of a rule, regulation, order, or standard adopted by a state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure, except one that relates only to the internal management of a state agency; "regulation" does not include a form prescribed by a state agency or instructions relating to the use of the form, but this provision is not a limitation upon a requirement that a regulation be adopted under this chapter when one is needed to implement the law under which the form is issued; "regulation" includes "manuals," "policies," "instructions," "guides to enforcement," "interpretative bulletins," "interpretations," and the like, that have the effect of rules, orders, regulations, or standards of general application, and this and similar phraseology may not be used to avoid or circumvent this chapter; whether a regulation, regardless of name, is covered by this chapter depends in part on whether it affects the public or is used by the agency in dealing with the public;


To decide whether a provision is a regulation, an agency must consider "whether it affects the public or is used by the agency in dealing with the public." Anything that affects the public or affects its rights must be adopted under the APA as a regulation. If an agency is in doubt, the agency should err on the side of adopting regulations under the APA. Publication of an agency standard on the Internet does not fulfill the requirements of the APA for the agency to enforce the standard as a regulation.


In the APA's definition of "regulation," an exception is provided for a provision that "relates only to the internal management of a state agency." AS 44.62.640(a)(3). An example of such a provision is a "how-to-do-it" training or procedures manual for a state public assistance worker that explains which forms to use, how many copies of forms to complete, and techniques of interviewing. That type of manual does not affect the public within the meaning of the APA and the contents need not be adopted as a regulation in order to be used by the agency.


Agency action taken in the absence of necessary regulations will be invalid. If a state agency's interpretation of an existing regulation establishes a new general standard, the new general standard must be adopted as a regulation in accordance with the APA. Each agency should consult its attorney in the Department of Law as to whether it is necessary for a provision or requirement to be adopted as a regulation. [Emphasis added]

 

These requirements included under this heading of "Alaska Requires Substantive Regulations (Legislative Regulations)" of all state agencies (with the regulation exceptions noted in CAS 44.62.040) are all public records that all courts (de facto or de jure) must take judicial notice, and are facts, evidentiary facts and conclusive evidence of the ultimate facts used in any legal conclusion that all states agencies (with exceptions noted) must follow the APA (Alaska), must have the authority of the general and specific statute cited in the regulation, must be noticed to the public for a comment period, and if it affects the public and it's rights the regulation will have the force and effect of law only after specific requirements are met, and agency action taken in the absence of such necessary regulations will be invalid See Chrysler Corp. v. Brown, 441 U.S. 281, 295, 296, 301-303 (1979) and Kelly v. Zamarello, 486 P.2d 906, 908, 909 (Alaska - 1971).

 

 

Accusations and Remedy under the APA of Alaska

Under CAS 44.62.360 clearly states that whether a right, authority, license, or privilege should be revoked, suspended, limited, or conditioned initiated by the accuser must be written in concise so that the respondent can understand and prepare a defense, the specific statute and regulation that the respondent is to have violated not in the language of the statue and regulation, and it must be verified unless by a public officer (they do no exist in Alaska) or by an employee of an agency. This is an important copyrighted Alaska Statute; therefore, CAS 44.62.360 is included, to wit:

Sec. 44.62.360 Accusation.

A hearing to determine whether a right, authority, license, or privilege should be revoked, suspended, limited, or conditioned is initiated by filing an accusation. The accusation must

(1)     be a written statement of charges setting out in ordinary and concise language the acts or omissions with which the respondent is charged, so that the respondent is able to prepare a defense;

(2)     specify the statute and regulation that the respondent is alleged to have violated, but may not consist merely of charges phrased in the language of the statute and regulation; and

(3)     be verified, unless made by a public officer acting in an official capacity or by an employee of the agency on whose behalf the proceeding is to be held; the verification may be on information and belief. [Emphasis added]

 

In a hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed is initiated by a written statement specifying the particular statute and regulation the respondent must show compliance, the issues that have come before the agency that would justify a denial, and it must be verified unless by public officer or employee of the agency. This is an important copyrighted Alaska Statute; therefore, CAS 44.62.370 is included, to wit:

Sec. 44.62.370 Statement of issues

(a) A hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed is initiated by filing a statement of issues. The statement of issues is a written statement specifying

(1)     the statute and regulation with which the respondent must show compliance by producing proof at the hearing; and

(2)     particular matters that have come to the attention of the initiating party and that would authorize a denial of the agency action sought.

(b) The statement of issues shall be verified unless made by a public officer acting in an official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief.

(c) The statement of issues, together with the form for notice of defense and other information described in AS 44.62.380, shall be delivered to the respondent or sent by certified mail to the latest address on file with the agency, except that if a hearing has already been requested by the respondent,

(1)     AS 44.62.380 and 44.62.390 do not apply; and

(2)     the statement of issues together with the notice of hearing shall be delivered or mailed to the parties as provided in AS 44.62.420. [Emphasis added]

 

 

POINT SUSPENSION/REVOCATION NOTICE Letter

A unsigned letter from "DMV" from the "Anchorage Driver Licensing" in Anchorage, AK dated 9/22/2004 with the heading of "POINT SUSPENSIONL/REVOCATION NOTICE ("DMV Letter") addressed to "WINTERROWD, RALPH K" was received in my private Post Office Box in Knik.

 

 

What or Who is DMV?

The first object was to determine who or what is the DMV, and if it has been established by the Legislature of the State (sic). In checking both the ©Alaska Statutes ("AS") and the Alaska Administrative Code ("AAC"), it has no lawful or legal existence. As DMV is purportedly the "Division of Motor Vehicles", it will be identified herein as ("DMV').

 

 

Who is "WINTERROWD, RALPH K?

As I have two Christian names and one family name with"2nd" attached and according to Oxfords Unabridged Dictionary my Christian names and my Family name are proper nouns and all proper nouns only have the first letter capitalized. My true name is "Ralph Kermit Winterrowd 2nd", and not WINTERROWD, RALPH K with no period behind the K.

 

As these administrative state agencies consider Ralph Kermit Winterrowd 2nd a "taxpayer" and use this type of identification of all capitals and the military style of names (last name, first name and letter [no period i.e. not an initial], the definition of "taxpayer" used in the regulations has application as used in the Multistate Tax Act in Alaska Administrative Code 15 AAC 19.900, to wit:

(3)     "taxpayer" means any natural person, corporation, partnership, firm, association, or governmental unit or agency acting as a business entity in this state. [emphasis added]

 

This definition is the exact definition used in the Internal Revenue Code. See the Alaska Statutes on Multistate Tax Compact CAS 43.19 et seq., and the Alaska Income Tax Act CAS 43.20 et seq.

 

Ralph Kermit Winterrowd 2nd might be classified as a natural person depending on the exact meaning of the term, but Ralph Kermit Winterrowd 2nd has no business license and is not acting as a business entity within the territorial boundaries of Alaska.

 

 

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