Kevin Smith wrote:
> On Fri, 04 Aug 2006 14:21:56 GMT, Orator
> wrote:
>
>
>>Kevin Smith wrote:
>>
>>
>>>On Thu, 03 Aug 2006 02:00:19 GMT, Orator
>>>wrote:
>>>
>>>[...]
>>>
>>>
>>>>Is Seth saying that the State law has no application for local
>>>>governments in the US? Why doesn't the State law apply without the need
>>>>to "adopt" it? It simply doesn't make sense.
>>>
>>>
>>>To the best of my knowledge (I could easily be wrong) local law is
>>>inferior to state law when it conflicts with state law,
>>
>>I agree.
>>
>>
>>>however local
>>>law may sometimes be considered superior to state law when it agrees
>>>with state law.
>>
>>How can something be "superior" to something that is identical to it :-)
>
>
> Not identical; simply more detailed and/or stringent.
If a State law covers a specific area, then that law takes precedence
over local government laws and makes such laws redundant. Then you might
have a federal law that requires mirroring state legislation, where you
have a state and federal jurisdiction. Then it depends on which body has
jurisdiction (or even both) to which law is applied.
Then you have another curious aspect, where states need to treat each
others as foreign nations for enforcing judgements of one state in
another state.
>
>
>>>It may also be a politically, if not Constitutionally
>>>protected community right, but I'm just guessing here.
>>
>>The Law is the Law - politics don't alter a law, only repealing the law,
>>overriding legislation or amendments do. A "law" that is
>>unconstitutional is not a Law.
>
>
> I'm under the impression that officials, police and judges can easily
> ignore and simply not enforce or abide by laws they find inconvenient.
Definitely not -- in theory. Practise often differs, but it doesn't make
their action "lawful" or alter the laws in any way.
>>>>Here we have what we call "enabling laws" they are laws that enable (in
>>>>this case) local governments to make rules and regulations. The Law you
>>>>referred to appears to me to be an enabling law, meaning that it is not
>>>>exacting for do's and don'ts (remember I haven't read it), but one that
>>>>sets parameters within which a local authority can make local laws,
>>>>rules and regulations.
>>>
>>>
>>>From what I've read, you're right on target, Orator. Local government
>>>may use Article 24 as a model just as easily as they may adopt it.
>>>
>>>Call me paranoid, but I'm concerned the administrative law judge just
>>>might rule all of the state and local laws, rules and regulations that
>>>are inconvenient for NYSDEC staff to respect should be ignored in my
>>>case. That would suck, and it would also fall straight in line with
>>>all of my previous experiences with them.
>>
>>Well, now that you agree that I have read it right, it means that the
>>legal advice you had must then also be right, as I did agree with their
>
>
> With all due respect, the local law in question states the purpose of
> the adoption of state law. The local law could have "modeled" state
> law, but in this case state law was "adopted", not used as a "model".
An "enabling law" cannot be "adopted" as it isn't a functioning law of
governing something, other than the ability to make a functioning law
for (whatever) by a local government. This should become apparent from
the text of the law itself.
I can't see that a state law ever requires local government mirroring
laws. The need for these mirroring laws go back to the federation
(uniting) of the various states and that doesn't apply within a state.
>
>
>>views initially. Though I cannot guess what a Judge will do there. Here
>>is why.
>>
>>I saw on TV some time ago from a rather economically disadvantaged
>>district on the effect of "plea bargaining'. A group of people were
>>alleged to have done something, fraud IIRC, but it really doesn't
>>matter. One of the accused was a black single mother with 3 kids living
>>on welfare, and no means to hire a lawyer.
>>
>>She was given a court appointed lawyer. One who was overworked, probably
>>under qualified and uninterested in more than "plea bargaining". He told
>>the single mother, best plead guilty and you'll only get (jail time, a
>>few years IIRC) and told her she would get at least double if she
>>claimed to be innocent even though she said she was not involved.
>>
>>Other accused were slightly more affluent and managed a lawyer, who
>>proved that the whole event was fiction. It never happened at all. The
>>others got off. Do you think they let the unmarried mother out of jail?
>>No. The "reasoning" was she had pleaded guilty to a crime (that never
>>existed) and she was guilty of that crime because she said so. It was
>>immaterial that it had never occurred, apparently.
>
>
> The law means absolutely nothing unless the powers that be decide they
> like the way the law was written.
Personally I think your biggest problem over there is that you have
political people as "judges" who are elected and really need no legal
knowledge at all, only popularity and/or money. Look at who got voted in
as the Governor of California, whose sole claim to fame (not ability or
knowledge) is having said "I'll be back", then he didn't ever write that
himself. Still I suppose little has changed in that role, public servant
minions are still writing what he says and directs what he does....
That doesn't apply to high court judges as I understand. They are
appointed by the politicians who actually consider capability (as well
as their possible political leaning I suppose) of the day, as they are here.
>
> For example: some Christians believe "Thou Shalt Not Kill" except in
> self-defense or when someone really annoys them.
..or when they want to impose their religion on others - eg the Crusades.
>
>
>>>Hey, is it true that all the women glow and men thunder, Down Under?
>>>
>>
>>Oh I don't know about the "thunder" so much.... unless they fart...
>
>
> If this true, I must be an Aussie.
:-) |