OMG .. the FIC has bent over backwards too far me thinks ... I'm just asking for documents related to all the guns a town has .. yesh .. here is what I filed yesterday:
Memorandum of Law in Support of
Complainant’s Motion or Request Regarding FIC Hearing of 24 APR 12
The complainant filed a motion to dismiss two of the three parties, DESPP and DESPP-Commissioner on 27 MAR 12, the pleadings of the motion are incorporated into these pleadings.
The complainant noted to the FIC, during a 24 APR 12 hearing (which previously no testimony had been taken by the FIC outside a motion to dismiss filed by the respondent City of Stamford on or about 14 FEB 12) and at the beginning of the session that the 27 MAR 12 motion to dismiss of the complainant’s has not been ruled upon and this would need to be ruled upon prior to commencing further proceedings.
The FIC hearing officer took testimony and pleadings directly after the complainant motioned for a ruling regarding the 27 MAR 12 filed motion to dismiss. The respondents DESPP and DESPP-Commissioner offered no facts that would support their standing and or that the court had jurisdiction of them as parties in this case. The respondents DESPP and DESPP-Commissioner stated that they would just leave the decision as to the jurisdictional issues to the sound discretion of the FIC without proving any justification for their participation in this case as parties. The complainant noted that it was not believed that the respondents DESPP and DESPP-Commissioner had the prerequisite standing and or jurisdiction to be proper parties in this case.
The FIC hearing officer, after hearing arguments and testimony, decided not to rule on the motion to dismiss but to “table it” to be decided on another date. The FIC hearing officer then proceeded to continue the hearing taking evidence, testimony, making rulings, and allowed other fact-finding activities that one would expect from a FIC hearing that has had the proper parties already identified.
Once a motion to dismiss of this nature has been filed by a party attacking the jurisdiction of another party or parties then the burden of proving that the court has jurisdiction is upon the party claiming it. And the respondents DESPP and DESPP-Commissioner actively participated in the 24 APR 12 FIC hearing held and, in doing so, effectively confirmed their claim to jurisdiction as parties.
It is clear that the proceedings that continued after the refusal of the FIC hearing officer to rule on the motion to dismiss are null and should be stricken or rejected.
The concept of needing to rule on a motion to dismiss due to standing and or jurisdictional issues is required to be done prior to a continuation of other proceedings, rulings, etc. is required should be known to any lawyer, which the FIC hearing officer is in this state. Therefore, it is a logical conclusion that the refusal to issue a ruling regarding the standing and or jurisdictional issues raised by the complainant was not error but that it was deliberate and it was designed to allow other parties to raise the issue later in any subsequent proceeding (administrative proceeding, superior court proceeding, appellate court proceeding, or supreme court proceeding) and effectively null and void the ruling of the administrative agency’s decision that may be ruled in favor of the complainant. It is a chilling prospect and one that violates complainant’s due process rights. The removal of the hearing officer is more than appropriate under this set of circumstances and facts.
A short list of authorities is contained within the next section which supports the request or motion filed 25 APR 12.
"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it `can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.' Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 717 ; Denton v. Danbury, 48 Conn. 368, 372 ."` " State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); see Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982); Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448-49, 352 A.2d 301 (1974); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). Therefore, the trial court was required to address the defendant's jurisdictional challenge 246*246 before ruling on his other motions.” 211 Conn. 232 (1989); STATEWIDE GRIEVANCE COMMITTEE v.ZBIGNIEW ROZBICKI (13557);,Supreme Court of Connecticut, Argued March 7, 1989, Decision released May 23, 1989.
“Once jurisdiction is challenged, it must be proven." (Jagens v. Lavine, 415 S.Ct.768). "Jurisdiction can be challenged at any time, even on final determination." (Basso v. Utah Power & Light Co., 495 2nd 906 at 910). "Where there is an absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack." (Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 382; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471).
“We begin our analysis by noting that "[administrative agencies are tribunals of limited jurisdiction and their 291*291 jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.... [A]n administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner.... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power." (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988). "It is a familiar principle that [an administrative agency] which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Internal quotation marks omitted.) Id., 427-28. 241 Conn. 282 (1997), GARLAND HALL v. GILBERT AND BENNETT MANUFACTURING COMPANY, INC., ET AL.,(SC 15608), Supreme Court of Connecticut, Argued March 27, 1997,Officially released June 3, 1997.
“The party seeking the exercise of the court's jurisdiction bears the burden of alleging facts that clearly demonstrate that it is the proper party to invoke judicial resolution of the dispute” 888 A.2d 1127 (2006), 93 Conn.App. 327, AAIS CORPORATION v. DEPARTMENT OF ADMINISTRATIVE SERVICES et al., No. 26071, Appellate Court of Connecticut, Argued October 18, 2005, Decided January 24, 2006.
On the hearing date of 24 APR 12, testimony and pleadings regarding the complainant’s motion to dismiss were considered by the FIC hearing officer. Based on the information provided to the FIC on that date, the FIC should now render a decision on the motion to dismiss in favor of the complainant.
The subsequent hearing testimony, exhibits, rulings and other activities that took place after the motion to dismiss was not ruled upon but “tabled” should be stricken from the record.
The hearing officer should be removed from this case.
Last edited by davidmcbeth; 04-27-2012 at 09:50 AM.