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Lesson Plan 3-09 (3)

Lesson Plan 3-09 (3)

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Civil Law Procedure
 –
Lesson Plan III Page 1 of 9
 Written by Michael A Young, Mount Vernon, Ohio
CIVIL PROCEDURE
Lesson Plan
Part IIIJune Session 2010Public v. Private - Insight:
 Jurisdictionary
offers a structured, easy-to-understand program to helpaverage people learn how to properly execute a civil lawsuit (action). In mostinstances, the laws that support these actions are found within the various stateand federal statutes, which have been organized and codified into titles,chapters and sections for easier access.For the benefit of our students, I would like to expand our assessment of thestatutory law with a brief analysis which is overlooked by most. Understanding
the “nature” of the charges, violations or offenses affecting the case can
determine how one applies the law and protects their individual rights.Please keep in mind that this particular assessment is my own and is not part of the official
 Jurisdictionary
program. However, because of the fact that Icontinue to hear the wailing of those who fail to grasp many fundamentalconcepts of law and unjustly shift the blame on the courts, I feel compelled toclarify the difference between public and private law. A particular bit of information came to me from others who have witnessed
such remarks from a judge like, “Do not bring the law into this court” or “Theconstitution does not apply here”. What would cause a judge to make such a
statement, if indeed, he did.
 What is “the Law”? Generally, we consider all of it –
constitutions, statutes,court rules, court decisions
as law. Well, it is, but not all of it applies in every situation. Consider, for example, a law that states you must acquire a doglicense. Do you really have to obey this law? What if 
 you don‟t have a dog?
Isthis a constitutional issue? Who does this law operate on?From
 Black’s Law Dictionary, 5 
th
Edition
, page 1106:
Public law.
 A general classification of law, consisting generally of constitutional, administrative, criminal, and international law, concerned with the organization of the state, the relations between the state and thepeople who compose it, the responsibilities of public officers to the state,to each other, and to private persons, and the relations of states to oneanother.
 
 
Civil Law Procedure
 –
Lesson Plan III Page 2 of 9
 
It is interesting to note that the above definition does not include “statutes” or“civil law”. “Administrative” law is that which is applied by and throughexecutive agencies. I‟ll expand more on this, later.
 From
 Black’s Law Dictionary, 5 
th
Edition
, page 1076:
Private law.
 As used in contradistinction to public law, the term meansall that part of the law which is administered between citizen and citizen,or which is concerned with the definition, regulation, and enforcement of rights in cases where both the person in whom the right inheres and theperson upon whom the obligation is incident are private individuals.
 From
 Black’s Law Dictionary, 5 
th
Edition
, page 1264:
Statute,
n
.
 An act of the legislature declaring, commanding, orprohibiting something; a particular law enacted and established by the willof the legislative department of government; the written will of thelegislature, solemnly expressed according to the forms necessary toconstitute it the law of the state.
Such may be public or private
,
declaratory, mandatory, directory, or enabling, in nature. … This
word isused to designate the legislatively created laws in contradistinction tocourt decided or unwritten laws. See
Common law.
 Private statute.
A statute which operates only upon particular persons,and private concerns. An act which relates to certain individuals, or toparticular classes of men. See
Special law.
 Public statute.
 A statute enacting a universal rule which regards the wholecommunity, as distinguished from one which concerns only particularindividuals and affects only their private rights. See also
General statute,
supra.
 From the above definitions, we see that there is a distinction between publicand private law. It is important to understand how each affects you and whatlaw operates in each.
PUBLIC PRIVATE
 Applicable law Constitutions, Contracts,Some Statutes Some Statutes Applies to Governments, Between PersonsPeople with Government, Actions/Nature Constitutional Issues, Civil Actions, Administrative, Private Obligations,Criminal, AgreementsInternational Authority General Licensure,Permits,Contracts
 
Civil Law Procedure
 –
Lesson Plan III Page 3 of 9
 
 We see that ALL civil actions are “Private” in nature, meaning they are theresult of or arise from “voluntary” agreements or obligations entered into by 
consent of the parties. Private obligations DO NOT usually includeconstitutional issues, unless one of the parties happens to be a State acting in itsprivate or corporate capacity in depriva
tion of a person‟s rights which are
secured by the constitution
or in the form of “privileges”
.Notice, the state has a dual personage
it can act in its public capacity of 
government, or it can act in a private capacity as a corporation. In a state‟s
public capacity, it (including public officials and employees) enjoys the rights of sovereign powers granted by the people on their behalf, and it may only be sued
in accordance with applicable law. In a state‟s private capacity, however, the
state takes on the persona of a private organization or corporation and may sueor be sued in like manner as any other person.Those who serve in public office enjoy civil immunity ONLY so long as they act within their official capacities and in performance of their official duties, ingood faith, and not in a wanton, negligent or malicious manner. Administrative law is a separate class to itself. Administrative law does not actdirectly on persons, rather it operates on state agencies belonging to theexecutive branch of government. Administrative law is actually referred to as
“regulations” and governs the normal adm
inistrative operations of government,such as accounting, personnel, and other internal matters. Where administrative law affects persons is in matters involving administrativematters. For example, statutes may require that people must be licensed priorto operating a motor vehicle on the public highways. This power of the state is a
result of the state‟s policing powers to ensure the health, safety, and welfare of 
the community at large. However, the application process describing the how licensing is to be tracked, distributed, and records keeping would be governed by internal regulations within the Bureau of Motor Vehicles.Each administrative agency has their own process for settling disputes with thepeople. Administrative officers are appointed to hold administrative hearingsand render judgments based on the law and their internal regulations. Theparties of these disputes may be represented by attorneys, but there is not trial by jury. The Administrative officer reviews the facts, law, and evidence andrenders their decision, accordingly, which is final and binding. However, mostagencies do have an internal appeal process to challenge decisions by theadministrative officer.
 Administrative.
Connotes of or pertains to administration, especially management, as by managing or conducting, directing, or superintending,
the execution, application or conduct of persons or things. … Particularly,having the character of executive or ministerial action. … In this sense,
administrative functions or acts are distinguished from such as are
 judicial.”
--
 Black’s Law Dictionary, 5 
th
Edition,
p. 42

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