DOCSLIB.ORG

SEESALT DIGEST State Tax Notes®

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
SEESALT DIGEST State Tax Notes® © 2018 Tax Analysts. All rights reserved. Analysts does not claim copyright in any public domain or third party content. SEESALT DIGEST state tax notes® Ill-Fated Litigation: Exhausting Administrative Remedies and De Novo Review by Carley A. Roberts and Jessica N. Allen decision points early in the controversy cycle regarding the evidentiary record should litigation be pursued down the road. While exhaustion of administrative remedies and de novo review are separate principles, each can have a significant impact — either separately or together — on the viability of the claim(s) brought in a suit for refund. This article examines the underpinnings of the exhaustion doctrine and the de novo review standard and why taxpayers should be aware of their collective importance long before administrative appeals and formal litigation are afoot. Carley A. Roberts is a partner and Jessica N. II. Exhaustion of Administrative Remedies Allen is an associate in Pillsbury Winthrop Shaw Pittman LLP’s Sacramento, California, When challenging an assessment or refund office. claim denial, the available administrative relief procedures and the taxpayer’s level of In the inaugural installment of SeeSALT responsiveness during those procedures play an Digest, Roberts and Allen examine the essential role in the success of the taxpayer’s underpinnings of the exhaustion doctrine and the de novo review standard. challenge. All states, and many local governments, have specific administrative I. Introduction procedures that apply to tax controversies. While exhaustion rules vary from state to state, the Pre-litigation pitfalls exist at all stages of the general principles supporting the rules are the state or local tax controversy life cycle. Two same. principles warrant careful attention; otherwise, California, for example, has a well-defined mistakes early on can result in a taxpayer not only and long-standing judicial exhaustion of waiving a valid tax suit for refund but also administrative remedies doctrine. In 1941 the forfeiting necessary or otherwise valuable California Supreme Court held that “where an evidence. The first principle is the often administrative remedy is provided by statute, overlooked and highly jurisdiction-dependent relief must be sought from the administrative exhaustion of administrative remedies doctrine, body, and this remedy exhausted before the courts which involves determining what levels of will act.”1 The failure to exhaust administrative administrative challenge are required and how early the grounds on which a taxpayer can bring a suit for refund are established. The second 1 principle is de novo review, in which variations Abelleira v. District Court of Appeal, 17 Cal. 2d 280, 292 (Cal. 1941). The court relied primarily on its understanding of the exhaustion doctrine at among tax types and jurisdictions create critical the federal level, including citation to many federal cases, in addition to reliance on several cases from other states and six law review articles. STATE TAX NOTES, DECEMBER 3, 2018 849 For more State Tax Notes content, please visit www.taxnotes.com. SEESALT DIGEST © 2018 Tax Analysts. All rights reserved. Analysts does not claim copyright in any public domain or third party content. remedies is a limiting factor to the court’s which in turn puts the tax agency on notice of jurisdiction to hear a case.2 The rule acts as a those grounds, satisfying the notice requirement condition precedent, restricting a trial court’s established by the exhaustion doctrine. ability to find an exception to the rule.3 The principle of exhaustion of administrative A. What Administrative Remedies Must a remedies has two main components. First is the Taxpayer Exhaust? requirement that administrative appeals be Often mistaken to be simple in theory, the brought before the proper tax agency or raised at exhaustion doctrine can be complicated once put the proper administrative level before a court into practice. State and local tax rules can be considers the taxpayer’s cause(s) of action. This unclear regarding whether some levels of issue can arise in class action sales tax cases in administrative review are required, as illustrated which the class seeks to proceed against an in the following examples. individual taxpayer responsible for collecting and First, taxpayers often misinterpret exceptions to remitting a tax rather than seek a refund from the the exhaustion doctrine, causing them to skip a tax agency or vice versa, depending on the 4 necessary administrative step and head straight to jurisdiction. Second, the exhaustion of court. Incorrectly relying on an exception to the administrative remedies doctrine requires exhaustion doctrine can ultimately result in costly taxpayers to raise all issues before an and time-consuming judicial proceedings for the administrative body before subsequent judicial 5 taxpayer and may lead to a taxpayer forfeiting her review. Because exhausting administrative claim entirely. A California court of appeal in an remedies is a “procedural prerequisite” to an unpublished decision held that the taxpayers did action at law, failure to exhaust each challenge at not exhaust their administrative remedies because the administrative level can result in a waiver of a 6 they failed to challenge property tax assessments claim in later complaints. Courts are without before the local boards of equalization.9 In re 2009 jurisdiction to consider grounds not set forth in a Aircraft Tax Refund Cases involved assessments of taxpayer’s challenge to an administrative 7 personal property taxes by various California decision. Generally, the administrative level is the counties on commercial aircraft owned by the taxpayer’s opportunity to present all the issues it 10 8 taxpayers. The taxpayers did not apply for a may want the court to determine in the future, reduction in the assessments with the respective local boards of equalization.11 Instead, the taxpayers paid the personal property taxes and filed refund 2 Aronoff v. Franchise Tax Board, 60 Cal. 2d 177, 180-181 (Cal. 1963) claims with the county boards of equalization to (taxpayer did not exhaust his administrative remedy in which he filed a 12 writ of prohibition against the Franchise Tax Board while a petition for recover the taxes. The refund claims were denied rehearing was pending at the California State Board of Equalization). and the taxpayers filed individual suits for refund 3 However, a California trial court may determine whether a case falls and declaratory relief actions in a California within one of the few exceptions to the exhaustion rule, such as challenges to agency jurisdiction, inadequate administrative remedy, superior court, which were eventually consolidated. and alternative remedies granted by statute. See James E. Reed, The court dismissed the challenges, holding that the “Exhaustion of Remedies,” 56 Calif. L. Rev. 1061 (1968). 4 See, e.g., Loeffler v. Target Corp., 58 Cal. 4th 1081 (Cal. 2014); and failure to apply for a reduction in the assessments Larrieu v. Wal-Mart Stores Inc., 872 So. 2d 1157 (La. Ct. App. 2004). with the local boards of equalization was fatal to the 5 For a further discussion of this issue, see infra notes 41-69 and taxpayers’ claims.13 accompanying text. 6 In an attempt to bypass the first step of the Holland v. Union Pacific Railroad Co., 154 Cal. App. 4th 940, 946 (Cal. Ct. App. 2007). requisite administrative remedies, the taxpayers 7 Preston v. State Board of Equalization, 25 Cal. 4th 197, 205-206 (Cal. 2001) (citing Atari Inc. v. State Board of Equalization, 170 Cal. App. 3d 665, 672 (Cal. Ct. App. 1985)). 8 A limited “futile” exception to the exhaustion doctrine exists when 9 “the administrative agency is not empowered to correct the situation See In re 2009 Aircraft Tax Refund Cases, Cal. Ct. App. (4th App. Dist.) from which judicial relief is sought.” Park ‘N Fly of San Francisco v. City of Dkt. No. G053181 (Apr. 13, 2017) (not certified for publication). 10 South San Francisco, 188 Cal. App. 3d 1201, 1208-1209 (Cal. Ct. App. 1987) Id. at *1. (citing to Knoff v. City etc. of San Francisco, 1 Cal. App. 3d 184, 199 (Cal. Ct. 11 App. 1969)). For example, a taxpayer raising a constitutional challenge Id. at *2. 12 may skip administrative action and precede to the courts since an Id. administrative agency lacks jurisdiction to decide a constitutional claim. 13 Id. Id. at *3. 850 STATE TAX NOTES, DECEMBER 3, 2018 For more State Tax Notes content, please visit www.taxnotes.com. SEESALT DIGEST © 2018 Tax Analysts. All rights reserved. Analysts does not claim copyright in any public domain or third party content. relied on an exception to the exhaustion doctrine Similarly, in a California Supreme Court articulated in Westinghouse Electric Corp. v. County of decision, Williams & Fickett v. County of Fresno, the Los Angeles,14 which relied on the California State taxpayer attempted to sidestep the application for Board of Equalization’s Assessment Appeals assessment with the county board of equalization Manual.15 In Westinghouse, the California Court of and the county assessment appeals board.22 While Appeal stated that the Assessment Appeals Manual the taxpayer recognized the long-standing allowed a taxpayer challenging a property tax principle of exhaustion, it believed the exhaustion assessment to skip the application to the local board principle did not apply to its claim because the of equalization asking for a reduction in an assessment was “a nullity as a matter of law.”23 The assessment if “the
Load more

Recommended publications
  • In the United States District Court
    Case 1:12-cv-00069-JB-KBM Document 135 Filed 11/18/14 Page 1 of 106 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO JARITA MESA LIVESTOCK GRAZING ASSOCIATION; ALAMOSA LIVESTOCK GRAZING ASSOCIATION; SEBEDEO CHACON; THOMAS GRIEGO; DONALD GRIEGO; MICHAEL PENA; JUAN GIRON; JOE GURULE, JR.; FERNANDO GURULE; DIEGO JARAMILLO; LORENZO JARAMILLO; GABRIEL ALDAZ; ARTURO RODARTE; JEFFREY CHACON; GLORIA VALDEZ; JERRY VASQUEZ; CARLOS ORTEGA; LEON ORTEGA; HORACIO MARTINEZ; RONALD MARTINEZ; STEVE CHAVEZ; VANGIE CHAVEZ; ALFONSO CHACON; DANIEL RAEL; JOHN VALDEZ and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RIO ARRIBA, Plaintiffs, vs. No. CIV 12-0069 JB/KBM UNITED STATES FOREST SERVICE and DIANA TRUJILLO, in her official and individual capacities, Defendants. Case 1:12-cv-00069-JB-KBM Document 135 Filed 11/18/14 Page 2 of 106 AMENDED MEMORANDUM OPINION1 THIS MATTER comes before the Court on the Federal Defendants‟ Motion to Dismiss Count 1 for Failure to Exhaust Administrative Remedies, filed February 18, 2013 (Doc. 55)(“MTD”). The Court held a hearing on July 26, 2013. The primary issue is whether the Court should dismiss the Plaintiffs‟ retaliation claim under the First Amendment to the Constitution of the United States for failure to exhaust administrative remedies. Because the Plaintiffs never argued their First Amendment retaliation claim before Defendant United States Forest Service in the administrative proceedings, because a claim is not exempt from the administrative-exhaustion requirement merely because it is constitutional in nature, and because the administrative-exhaustion requirement is mandatory and thus not subject to judicial waiver, the Court will dismiss without prejudice the First Amendment retaliation claim for failure to exhaust administrative remedies pursuant to 7 U.S.C.
    [Show full text]
  • ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional Philosophy of Writs
    CLASS- B.A.LL.B VIIIth SEMESTER SUBJECT- ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional philosophy of Writs: A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual. Writ is an instrument or order of the Court by which the Court (Supreme Court or High Courts) directs an Individual or official or an authority to do an act or abstain from doing an act. Understanding of Article 32 Article 32 is the right to constitutional remedies enshrined under Part III of the constitution. Right to constitutional remedies was considered as a heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the Fundamental rights. Article 32(1) states that if any fundamental rights guaranteed under Part III of the Constitution is violated by the government then the person has right to move the Supreme Court for the enforcement of his fundamental rights. Article 32(2) gives power to the Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court. Article 32(3) states that parliament by law can empower any of courts within the local jurisdiction of India to issue writs, order or directions guaranteed under Article 32(2).
    [Show full text]
  • Exhaustion of State Remedies Before Bringing Federal Habeas Corpus: a Reappraisal of U.S. Code Section
    Nebraska Law Review Volume 43 | Issue 1 Article 7 1963 Exhaustion of State Remedies before Bringing Federal Habeas Corpus: A Reappraisal of U.S. Code Section Merritt aJ mes University of Nebraska College of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Merritt aJ mes, Exhaustion of State Remedies before Bringing Federal Habeas Corpus: A Reappraisal of U.S. Code Section, 43 Neb. L. Rev. 120 (1964) Available at: https://digitalcommons.unl.edu/nlr/vol43/iss1/7 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. NEBRASKA LAW REVIEW VOL. 43, NO. 1 EXHAUSTION OF STATE REMEDIES BEFORE BRINGING FEDERAL HABEAS CORPUS: A REAPPRAISAL OF U.S. CODE SECTION 2254 I. INTRODUCTION There are many instances in which a state's prisoner, after being denied his liberty for years, has subsequently, upon issuance of federal writ of habeas corpus, either been proven innocent or adjudged entitled to a new trial upon grounds that he was denied some constitutional right during the process of his state court trial.' In some of these cases it has been clear from the very beginning that if the allegations of the writ were proven, the de- tention was unconstitutional. Yet the prisoner is still forced to endure years of confinement while exhausting state remedies before 2 federal habeas corpus is available to him.
    [Show full text]
  • 15. Judicial Review
    15. Judicial Review Contents Summary 413 A common law principle 414 Judicial review in Australia 416 Protections from statutory encroachment 417 Australian Constitution 417 Principle of legality 420 International law 422 Bills of rights 422 Justifications for limits on judicial review 422 Laws that restrict access to the courts 423 Migration Act 1958 (Cth) 423 General corporate regulation 426 Taxation 427 Other issues 427 Conclusion 428 Summary 15.1 Access to the courts to challenge administrative action is an important common law right. Judicial review of administrative action is about setting the boundaries of government power.1 It is about ensuring government officials obey the law and act within their prescribed powers.2 15.2 This chapter discusses access to the courts to challenge administrative action or decision making.3 It is about judicial review, rather than merits review by administrators or tribunals. It does not focus on judicial review of primary legislation 1 ‘The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which government power might be exercised and upon that the whole system was constructed’: R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). 2 ‘The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them’: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
    [Show full text]
  • Individual Access to Constitutional Justice
    Strasbourg, 27 January 2011 CDL-AD(2010)039rev. Study N° 538 / 2009 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) STUDY ON INDIVIDUAL ACCESS TO CONSTITUTIONAL JUSTICE Adopted by the Venice Commission at its 85th Plenary Session (Venice, 17-18 December 2010) on the basis of comments by Mr Gagik HARUTYUNYAN (Member, Armenia) Ms Angelika NUSSBERGER (Substitute Member, Germany) Mr Peter PACZOLAY (Member, Hungary) This document will not be distributed at the meeting. Please bring this copy. http://www.venice.coe.int CDL-AD(2010)039 - 2 - Table of contents INTRODUCTION.............................................................................................................6 GENERAL REMARKS....................................................................................................6 I. ACCESS TO CONSTITUTIONAL REVIEW ...............................................................15 I.1. TYPES OF ACCESS .................................................................................................17 I.1.1. Indirect access...................................................................................................17 I.1.2. Direct access.....................................................................................................20 I.2. THE ACTS UNDER REVIEW ......................................................................................28 I.3. PROTECTED RIGHTS ..............................................................................................29 PARTIAL CONCLUSIONS OF CHAPTER
    [Show full text]
  • Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules?
    Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules? Jeffrey S. Lubbers* The requirement that parties seeking judicial review of agency action first “exhaust” their administrative remedies initially developed as a prudential judicial construct1 and now is also sometimes reflected in statutes.2 The classic version of the exhaustion requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. This ensures that the agency action being challenged is the final agency position and that the agency has had the opportunity to bring its expertise to bear and to correct any errors it may have made at an earlier stage. It also allows for the resolution of disputes before they come to court, thus avoiding potentially unnecessary additions to court dockets. I will refer to this as “remedy exhaustion.” The orthodox application of the remedy exhaustion requirement involves cases where the petitioner for judicial review has eschewed available administrative appeal opportunities. In some cases, a court’s refusal to accept review will simply clear the way for the further administrative proceedings to take place;3 but in other situations, the foreclosure of judicial relief occurs after “the opportunity to invoke the relevant administrative processes had passed.”4 * Professor of Practice in Administrative Law, Washington College of Law, American University; Research Director of the Administrative Conference of the United States (“ACUS”) from 1982–1995, Special Counsel to ACUS 2011– present, J.D., University of Chicago. I thank my research assistant Cooper Spinelli (Class of 2014) and ACUS staff (Stephanie Tatham, Connie Vogelmann, and Seth Nadler), for very helpful research assistance.
    [Show full text]
  • Draft Study on Individual Access to Constitutional Justice
    Strasbourg, 8 December 2010 CDL(2010)134* Study N° 538 / 2009 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) DRAFT STUDY ON INDIVIDUAL ACCESS TO CONSTITUTIONAL JUSTICE on the basis of comments by Mr Gaguik HARUTYUNYAN (Member, Armenia) Ms Angelika NUSSBERGER (Substitute Member, Germany) Mr Peter PACZOLAY (Member, Hungary) *This document has been classified restricted on the date of issue. Unless the Venice Commission decides otherwise, it will be declassified a year after its issue according to the rules set up in Resolution CM/Res(2001)6 on access to Council of Europe documents. This document will not be distributed at the meeting. Please bring this copy. http://www.venice.coe.int CDL(2010)134 - 2 - Table of contents INTRODUCTION...............................................................................................................6 GENERAL REMARKS......................................................................................................6 I. ACCESS TO CONSTITUTIONAL REVIEW ................................................................15 I.1. TYPES OF ACCESS...................................................................................................16 I.1.1. Indirect access ....................................................................................................16 I.1.2. Direct access.......................................................................................................20 I.2. THE ACTS UNDER REVIEW ........................................................................................27
    [Show full text]
  • Functus Officio and the Piwrogative Writ of Prohibition
    FUNCTUS OFFICIO AND THE PIWROGATIVE WRIT OF PROHIBITION By Ross A. SUNDBERG* An imaginary system cunningly planned for the evil purpose of thwarting justice and maximizing fruitless litigation would copy the major features of the extraordinary remedies. For the purpose of creating treacherous procedural snares and preventing or delaying the decision of cases on their merits, such a scheme would insist upon a plurality of remedies . .l There would appear to have been a deal of unnecessary litigation occasioned by the very fine line separating the stages at which the writs of certiorari and prohibition are properly sought. The objection in point of plurality of remedies is supported by the law of functus oficio-that despite the many points of law common to certiorari and prohibition each is available at a different stage in proceedings. The scene for the discussion that follows can be set very simply: Once proceedings have begun in the tribunal, but not until they have begun, prohibition may be obtained at any time until they are finished. if the proceedings have ended, the lower tribunal is said to be functus officio and prohibition ceases to be available.2 Is this a rehement that should be retained? Is it likely to result in many cases failing to reach the merits? Have the courts done anything to minimize the procedural difficulties that could arise from the distinction? These are some of the questions to which attention should be directed. The writs have the following points in common: historically they were used to control inferior courts; they are available in respect of a body with power to determine questions affecting the rights of subjects and having an obligation to act judicially; neither goes to an administrative tribunal, or so it is said;3 they are available only when the power to determine is de- rived from statute or subordinate legislation; the rules as to standing are the same; neither writ lies against the Crown.
    [Show full text]
  • Tuesday, January 05, 2010 11:35:01 EST Client ID/Project Name: Number of Lines: 199 Job Number: 1861:196830226
    1225VR Time of Request: Tuesday, January 05, 2010 11:35:01 EST Client ID/Project Name: Number of Lines: 199 Job Number: 1861:196830226 Research Information Service: LEXSEE(R) Feature Print Request: Current Document: 1 Source: Get by LEXSEE(R) Search Terms: 285 ark. 397 Send to: MILLER, ROD ARKANSAS SUPREME COURT LIBRARY 625 MARSHALL ST LITTLE ROCK, AR 72201-1054 Page 1 LEXSEE 285 ARK. 397 REHAB HOSPITAL SERVICES CORP. v. DELTA-HILLS HEALTH SYSTEMS AGENCY, INC.; and Frances FLENER, Individually and as Executive Director of Delta-Hills Health Systems Agency, Inc. No. 85-2 Supreme Court of Arkansas 285 Ark. 397; 687 S.W.2d 840; 1985 Ark. LEXIS 1928; 11 Media L. Rep. 1929 April 15, 1985, Opinion delivered PRIOR HISTORY: [***1] Appeal from Jackson As such, the parties are required to exhaust administrative Circuit Court; Andrew G. Ponder, Judge. remedies prior to seeking a declaratory judgment. DISPOSITION: Affirmed. Administrative Law > Judicial Review > Reviewability > LexisNexis(R) Headnotes Exhaustion of Remedies Civil Procedure > Justiciability > Exhaustion of Remedies > Administrative Remedies Civil Procedure > Declaratory Judgment Actions > State Judgments > General Overview Administrative Law > Governmental Information > [HN3] The Supreme Court of Arkansas requires Freedom of Information > Enforcement > Reviewability exhaustion of administrative remedies before resorting to > Jurisdiction & Venue an action for declaratory judgment. Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend Governments > Courts > Rule Application & Administrative Law > Judicial Review > Reviewability > Interpretation Exhaustion of Remedies [HN1] Jurisdiction to interpret the Freedom of [HN4] A basic rule of administrative procedure requires Information Act is in the Supreme Court of Arkansas. that the agency be given the opportunity to address a Ark.
    [Show full text]
  • Petition for Writ of Prohibition/Mandate
    RICHARD L. DUQUETTE Attorney at Law P.O. Box 2446 Carlsbad, CA 92018­2446 SBN 108342 Telephone: (760) 730­0500 Attorney for Petitioner CHRISTINA HARRIS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION CHRISTINA HARRIS and all ) CASE NO. UNNAMED AND FUTURE ) PETITIONERS SIMILARLY ) PETITION FOR WRIT OF SITUATED, ) PROHIBITION/MANDATE; ) STAY REQUESTED; Petitioner, ) VERIFICATION; MEMORANDUM ) OF POINTS AND AUTHORITIES; VS. ) REQUEST FOR ATTORNEY FEES ) & COSTS; AND EXHIBITS SUPERIOR COURT OF SAN DIEGO ) COUNTY, And DOES 1­10; ) IMMEDIATE STAY OF 12/4/06 ) JURY TRIAL REQUESTED Respondent, ) ) (Local Rule 7.2.3) ______________________________ ) Word Count: 3,336 PETITION FOR WRIT OF PROHIBITION/MANDATE Immediate Action Requested TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO, HONORABLE J. SAMMARTINO, PRESIDING JUDGE: Petitioner lawfully authorized her counsel to appear for her in a misdemeanor matter pursuant to Penal Code sections 977 and 1043, and thus was not personally in court on September 8, 2006 (readiness hearing before Judge Mills) or November 8, 2006 -1- _______________________________________________________________________________________________ PETITION FOR WRIT OF PROHIBITION/MANDATE AND REQUEST FOR STAY (trial call before Judge Kirkman) (Exhibit B). The trial court called petitioner’s case, and since petitioner was not personally present, the court issued a warrant for her arrest, but stayed it until December 4, 2006. When the court was thereafter informed that petitioner was lawfully appearing: 1.) through counsel 2.) was never ordered in open court on the recordto appear at the readiness conference contrary to the court docket (Exhibit P), and thus had 3.) not failed to appear, the court refused to send the case out for a speedy Jury Trial.
    [Show full text]
  • Rule 5:4. Motions and Responses; Orders
    RULES OF SUPREME COURT OF VIRGINIA PART FIVE THE SUPREME COURT A. GENERAL Rule 5:4. Motions and Responses; Orders. (a) Motions and Responses. — (1) Motions. All motions, except motions for the qualification of attorneys at law to practice in this Court, shall be in writing and filed with the clerk of this Court. All motions shall contain a statement by the movant that the other parties to the appeal have been informed of the intended filing of the motion. For all motions in cases in which all parties are represented by counsel – except motions to dismiss petitions for a writ of habeas corpus – the statement by the movant shall also indicate whether the other parties consent to the granting of the motion, or intend to file responses in opposition. (2) Responses. Opposing counsel may have 10 days after such motion is filed to file with such clerk a response to such motion, but this Court may act before the 10 days expire, if necessary. Once such a response is filed, no further pleadings in support of or in opposition to a motion may be filed without leave of Court. (3) Number of Copies. An original and three copies of all motions or responses must be filed. (4) Oral Argument. No motion shall be argued orally except by leave of this Court. (b) Orders. — Promptly after this Court has entered an order, the clerk of this Court shall send a copy of the order to all counsel. ADVISORY NOTE This rule is not intended to limit the scope of motions that may be filed in the Supreme Court.
    [Show full text]
  • In the Court of Appeals of the State of Mississippi No. 2016
    IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-SA-00112-COA MISSISSIPPI DEPARTMENT OF PUBLIC APPELLANTS SAFETY AND ALBERT SANTA CRUZ, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY v. STACY SMITH, GREG NESTER, AND APPELLEES KRISTOPHER WINGERT DATE OF JUDGMENT: 01/06/2016 TRIAL JUDGE: HON. WILLIAM A. GOWAN JR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY: PETER W. CLEVELAND WILSON DOUGLAS MINOR ATTORNEYS FOR APPELLEES: DENNIS L. HORN SHIRLEY PAYNE NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: GRANTED THE APPELLEES’ MOTION FOR SUMMARY JUDGMENT AND OTHER RELIEF DISPOSITION: AFFIRMED - 08/01/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. CARLTON, J., FOR THE COURT: ¶1. Forensic scientists Stacy Smith, Greg Nester, and Kristopher Wingert (collectively, the Appellees), after proceeding through four levels of administrative review for grievances related to their transfer from the Mississippi Crime Laboratory (Crime Lab) to the Mississippi Bureau of Investigation (MBI) and the subsequent loss of their Crime Lab “position identification numbers” (PINs), filed a petition for a writ of mandamus on July 9, 2013, in the Hinds County Circuit Court, First Judicial District. The Mississippi Department of Public Safety (MDPS) failed to notify the Appellees, who were state civil-service employees, about the loss of their Crime Lab PINs until well after the event occurred. In their mandamus petition, the Appellees requested the following relief: (1) placement in the forensic[-]scientist step appropriate with their experience and performance, (2) all back pay due along with all fringe benefits, including contributions to the Mississippi State Retirement System [(PERS)], (3) on[-] call pay, (4) prospective placement in steps earned by experience, and (5) placement in supervisory positions if such become available.
    [Show full text]