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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 100047
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am reasonably familiar with the doctrine that "the can do

Customer Question

I am reasonably familiar with the doctrine that "the king can do no wrong" in regards ***** ***** actions against the State of California or any of its agencies. However, can the State or any of its agencies knowingly and willingly break their own laws?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Well, the answer is generally "no," of course. However, I am sure that there is more to this story. Can you please tell me briefly about what has happened and what you are attempting to achieve here?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
There is a Vehicle Code provision (41500) for the removal of traffic violations, citations and fines for someone who has been incarcerated and the reinstatement of one's drivers license. While checking into this for a friend, who does not have a computer, we discovered that 2 of the 3 traffic tickets were dismissed but not the third. We've been to the DMV 4 times. They referred us to the county court that issued the citation in the first place. Went to the county court and they referred us back to the DMV. The last visit with the local office of the DMV referred us to the Mandatory Actions Unit of the DMV who finally stated that there was nothing they could do about it, he either pays the fine or wait until the charge drops off later this year. We've been bounced from pillar to post. To my way of thinking, this is their (DMV) law, found in their handbook. While all three citations should have been removed, they are breaking their own law by refusing to comply and reinstate his license. I might add that the DMV has not provided a reason for this oversight but states that they can not do anything. Can not or will not? This has gone on for over 6 months. He makes his living as a handyman but, without a license, has been severely restricted. If the DMV has violated its own law, I fully intend to run this case through small claims for the income he has lost by not having a valid license. Which brings me back to my original inquiry, can they (DMV) break their own law by what amounts to no more than a "refusal" to do what they've already done to the previous 2 citations. One final note, the citation is noted as "purgeable" which is a necessary classification before any action can be taken nor are there any different code violations on this third ticket than were on the first two.
Expert:  Ely replied 1 year ago.

Thank you.

There is something called a Writ of Mandamus. It is a writ filed in Court, and it asks the Court to order the state agency to do its duty. See HERE, HERE, and HERE.

What someone in this person's situation may wish to do is to file a Writ of Mandamus, if he believes that the DMV is not doing that it should be doing under the statutory code of California. This may be a way to ask the Court to have them grant him the license.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 1 year ago.
That information may be of some interest, but does not necessarily answer my initial question. The Writ you referenced can not be filed in Small Claims in that this is a money venue. To file it in the Fresno County Superior Court would not only take time, but money as well and, if we are successful, would only get the DMV to do what they were suppose to do in the first place. The approximate time frame would be well beyond the date his citation would die a natural death in the first place and the penalized party is, again, the one with the suspended license. No, my question is still whether or not this agency of the State of California can knowingly or willingly violate its own laws. My final option would be to invoke the stripping doctrine and go after the individual in the MAU who refused to do anything about the matter. It would be a little more difficult and take a little longer but there would be a message in our efforts that he might consider when next dealing with this matter. You had answered "generally no". What would give you cause to make this statement?
Expert:  Ely replied 1 year ago.

Hmm, I see.

Well in that case let me be direct.

"No, my question is still whether or not this agency of the State of California can knowingly or willingly violate its own laws."

No, they cannot. However, the only way to "hold" the state agency to account in said violation is via Writ of Mandamus. There is no other legal way to force the issue. While the Court can (a) assign court/attorney fees in its decision and (b) waive filing fees if it sees fit, the fact is that this is still the only way.

"My final option would be to invoke the stripping doctrine and go after the individual in the MAU who refused to do anything about the matter. It would be a little more difficult and take a little longer but there would be a message in our efforts that he might consider when next dealing with this matter."

You can do this if you'd like. The Writ would be more practical, however.

"You had answered "generally no". What would give you cause to make this statement?"

I would recommend reviewing Marbury v. Madison HERE.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.