ARMED FORCES CO-OP., ETC. v. Dept. of Ins., P.2d – ddttrh.info
Figure MTA Ukiah Valley and Inland Bus Service. of an interpretive diorama of the original buildings that would be Significant site features such as existing trees, lot size and shape, and relationship to surrounding the summer months, subsisting primarily on shellfish, surf fish, and sea. It is a requirement of the Immigration Rules that your relationship is “genuine and subsisting”. The Home Office issues guidance to. An assessment of whether an applicant's relationship with their partner is subsisting. (which was regarded as including whether a relationship was genuine) has.
Most claims are paid solely on the word of the insured, but a claimant who resides in Wyoming may designate an advisory board of not more than three members of AFCIA, who serve without remuneration, or other persons eligible for membership, to examine the attendant circumstances and assess the loss claimed.
The claimant has the option of selecting and obtaining the services of a professional adjuster if he deems this necessary to the formulation and preparation of his or her claim.
AFCIA is not presently transacting new business with respect to residents and risks located in Wyoming, but it does continue collection of premiums on and the servicing of such Wyoming policies as remain in force at this time.
The Association does not now have, nor has it ever had, a Certificate of Authority to do insurance business in this state, and one has never been applied for. AFCIA has never filed an annual report or paid an annual premium tax, but is willing to file its annual report voluntarily with the Wyoming Department of Insurance if so requested. Wyoming is required to recognize the supremacy of Federal Law including administrative decisions and arrangements made with the Department of the Army for AFCIA to be organized and to issue at Fort Leavenworth insurance coverage to military personnel located worldwide.
The order of December 27,is therefore a nullity for violation of due process. Purported service of process should be quashed and the case dismissed ab initio. Failure of the Wyoming Insurance Code to apportion the gross premiums tax between in-state and out-of-state activities violates rights of due process and equal protection and renders the imposition of tax and regulation unconstitutional if applied to Appellant. Failure of the Commissioner to rule on this vital point deprived AFCIA of a full hearing and renders the administrative proceeding and order a nullity.
Cancellation of Aparacio's coverage instanter without a hearing and prospective cancellation of the now remaining memberships and their coverage constitute impairment of contractual rights, wrongful predecision of the case before hearing, denial of due process and equal protection; furthermore, failure of the Commissioner to consider and rule on this basic point raised before him renders his order of December 27,a nullity.
I The appellant alleges that it did not receive a fair hearing. We spoke of fair-hearing requirements in Fallon v.
AFCIA contends, even though otherwise competently represented, that it was error for the Commissioner to fail to grant its motion for continuance of the administrative hearing because one of its attorneys was ill.
Courts have enunciated rules for continuances in varying circumstances. Where one of the party's attorneys was absent for illness, and he was also represented by other counsel, it was not improper to deny a motion for a continuance.
Ukiah Lumber Mills, 94 Cal. The Commercial Lumber court said that the "plaintiff was in nowise prejudiced by not having been granted the continuance requested and there was no abuse of discretion upon the part of the trial court in refusing to grant a new trial upon that ground. Other jurisdictions have followed suit. The record in the administrative hearing reveals that the hospitalized attorney's co-counsel did a credible job in handling the issues and the witnesses involved.
The appellant argues that it was improper for Commissioner Langdon to be both the complainant and the judge in the Insurance Department against the appellant. Our perusal of the record indicates that Assistant Commissioner Merle Johnson, not Commissioner Langdon, was the complainant. But even if we do not distinguish between the Commissioner and his assistant in this context, we are unpersuaded that appellant should prevail.
It cannot be assumed that the Commissioner is biased simply because he sits as the hearing authority in a case brought by the agency. We said in Fallon, supra, P. See also National Labor Relations Board v.
In Spiegel, supra, we said that an unbiased hearing is a constitutional necessity. Board of Education, 39 Ohio Misc.
We affirmed the right to a fair hearing in Fallon, supra; and in Spiegel, supra, we cited a concurring opinion from Fallon where it was said: In Spiegel, the point was concluded with this observation: National Labor Relations Board, 7 Cir. It is, of course, the appellant's burden to prove impropriety on the part of the Commissioner.
Forest Oil Corporation v. We have examined the record and cannot come to the conclusion that appellant would have us reach. We would, however, remind hearing officers everywhere, as they perform their duties throughout Wyoming, that, in view of the character of the entire administrative procedure process, where there are no independent hearing officers available, the hearing officer is in a tenuous and hugely volatile position. This calls for all hearing officers to not only be fair and impartial but to also act as judicially unbiased as is humanly possible so that not only will the right to a fair hearing be preserved, but the impression of a fair hearing will be vividly conveyed.
The gist of this allegation is that the Department staff: We do not, therefore, need to consider them. First National Bank of Lander, Wyo. In any event, there is no prejudice shown. State Highway Commission, Wyo. Arthur Aparicio, and this violated Aparicio's rights. AFCIA says that ex parte subpoenas are not allowed in connection with investigations unknown to the accused and are in contravention of rights of privacy. Section aW. The Department would not be able to proceed in an investigation absent authority to subpoena records of the suspect insurer.
The appellee contends and we agree that there is a "duality" of subpoena power.
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During the investigative stage, the Department, through the Commissioner, may exercise subpoena powers ex parte to determine whether or not a complaint should be issued. When it has been decided that a complaint should issue, the investigative stage moves into the contested aspect of the proceeding, where the authority to subpoena stems from the Administrative Procedure Act. AFCIA contends that the fact that the Commissioner required briefs to be filed on Sunday, November 14,was arbitrary and capricious.
The commissioner explains that when the filing date was set, he was unaware it was Sunday. Appellant cites no authority which holds that the Commissioner is guilty of an arbitrary and capricious act and does not indicate that it has been prejudiced in any way. We will not consider the point in view of these shortcomings. McDonald's inability to come to Cheyenne and testify at the hearing, she sought to take his deposition so as to inquire into those circumstances and this request was refused by the Commissioner Refusal to allow this deposition of a potential witness is relevant to the issue of fairness and impartiality of the administrative judge.
We will not consider this argument for the same reasons we would not consider the points sought to be made under sub. We might say that these shotgun-type briefs, which cite no authority for the position taken, leave much to be desired so far as this court is concerned. We are not the lawyers for the litigants. Assistant Commissioner Merle Johnson testified that the following was the substance of a statement made by the Commissioner before the hearing: It is admitted that this conclusion was relayed to the Commissioner; and it is also undisputed that the deputy commissioner had various but unidentified conversations with the Commissioner before the hearing.
In relation to the communications between the Assistant Commissioner and Commissioner Langdon before the hearing, the Amicus Curiae quotes the following from Fallon, supra, P. Despite the good intentions of the members of the board to disregard the report and what the committee did, our responsibilities are clear and we think we cannot under the circumstances carry the presumptions favoring the board to the extent of holding that the members of the board could efface from their minds the improper and inflammatory extraneous matters presented to them ex parte prior to the hearing as trained, knowledgeable, and experienced finders of fact might do, and thus impartially weigh the evidence adduced at the hearing Although that report was replete with hearsay, speculation and conjecture, we do not pass on the question of whether or not the committee properly discharged its function so far as the state medical society was concerned.
What seems to have been overlooked, however, is that such committee had no legal standing so far as the board was concerned and was performing no authorized function for the board.
It is asserted by the licensee and borne out by the record that this was done in order to complete the hearing in one day. While it is suggested by the board that the notice of hearing did not confine the statutory charge to those cases, we think any reasonable interpretation of the notice is to the contrary. Perhaps the most prejudicial matter in the entire report was the recital of the conclusion which that committee drew from the contents of the report and submitted ex parte to the board that licensee was guilty of using false and fraudulent statements in his practice.
Besides neither the committee nor the board was entitled as a matter of right to the private records of licensee described in their notices. Their use and importance emphasizes the necessity for their operation in a manner which will leave unblemished the faith of the American people in their government.
These considerations make apt the following quotation from Inland Steel Co. National Labor Relation Board, 7 Cir. There is perhaps no more important right to which litigants are entitled than that they be given such a trial. Its impairment, ipso facto, brings the court, and administrative bodies as well, into public disrepute, and destroys the esteem and confidence which they have enjoyed so generally.
Time and experience have demonstrated that the public, as well as litigants, will tolerate the honest mistakes of those who pass judgment, but not the biased acts of those who would deprive litigants of a fair and impartial trial.
Foremost among the responsibilities imposed upon a reviewing court, is to make sure that this foundation of our judicial system be not undermined. In the instant case, our review of the record indicates that the Commissioner, in response to questions about his bias, stated that, yes, he did know how his staff felt about the issues of this case, because otherwise he wouldn't be holding a hearing.
In other words, there would be no hearing if the Insurance Department staff felt it did not have a case against the appellant. We discussed, supra, the proposition which holds that merely because an individual plays both an investigative, as well as an adjudicative role, it does not necessarily follow that due process has been denied.
In our judgment, the above comment of the Commissioner is not a demonstration of bias which amounts to a denial of due process. When the issue of the extent of Commissioner Langdon's bias was raised, the Commissioner offered to make himself available for voir dire, a procedure we discussed in Spiegel, supra. This offer was not accepted and we do not think the record establishes sufficient contact or collaboration between the Commissioner and his staff to hold that appellant was denied a fair hearing.
The absence of the voir dire of the Commissioner makes it difficult for a reviewing court to test the Commissioner's denial that he prejudged the case against his assistant's general affirmance of an alleged statement.
As said in Spiegel, supra, P. Long Beach Federal Sav. Evidence of bias or prejudice on the part of Board members would also be relevant for consideration by a court called upon to review a final Board order. Having reviewed the record, and since we uphold the Commissioner's legal conclusions based upon our own independent review of the law, we hold that the appellant has not demonstrated prejudice constituting error.
There is no authority cited for the proposition that it was evidence of bias and prejudice for the Commissioner to cancel the Aparicio policy without a hearing. Here is what the Amicus Curiae brief says about this point: No such demand was made with relation to the other Wyoming AFCIA policy holders but for some reason your amicus was singled out by the Commissioner.
Your amicus believes such action violated his rights to fairness and due process, equal protection and impairment of his rights to contract as guaranteed by Art. This does not constitute the briefing requirement by the Wyoming Rules of Appellate Procedure. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on;" Emphasis supplied.
Neither the Amicus Curiae nor the appellant have complied with Rule 5. We will not consider the point. Merritt; Scherling; and Peterson, supra. Appellant's sole argument on this point is: This hardly proves bias on the part of the Commissioner. Since there is no authority cited, we will not consider the point anyway. In the agency hearing, the respondent sought to cross-examine a complainant witness on matters having to do with the investigation undertaken by the Department in its preparation of its case against AFCIA.
In an effort to be absolutely sure of himself, the Commissioner then called a recess and invited the respondent to make an offer of proof, which the attorney for AFCIA declined to do. Out of this, appellant charges that the Commissioner's ruling indicated bias on his part and asserts that the inquiry of the witness into the investigatory aspects of the case was being offered to prove this bias on the part of the Commissioner.
Bank Examiner, State of Wyoming. Security Bank of Buffalo, Wyo. Although the agency's actions were sustained on the basis of actual knowledge of the parties as to the agency's actions, Judge McClintock's dissenting remarks in the advance opinion are particularly appropriate and analagous to the instant case: The issue in the bank case was whether or not the bank examiner, in conducting his own investigation into a new bank application, erred in not disclosing the results of the inquiry to the protestants so that they could meet and controvert the newly acquired facts if they chose.
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All this being so, we again conclude that appellant has furnished us with no relevant authority for this point and no cogent argument in its behalf. We decline to further consider it. There is no cogent argument made, nor does the appellant cite authority, for this allegation. We will, therefore, not consider it. State Board of Equalization, Wyo. In Belco, where the State Board of Equalization declined to decide the constitutionality of the tax law as it was applied by the Department of Revenue and Taxation, we said: We hold that an administrative agency has no authority to determine the constitutionality of a statute [Citations].
This is so whether the question is the constitutionality of the statute per se or the constitutionality of the statute as applied We discuss the constitutionality of the premium tax, infra. No authority is cited for this proposition and we will not consider it.
To prove bias, the appellant argues: Appellant argues that at one point in the hearing before Commissioner Langdon, the Commissioner objected to a question, thus revealing his bias because he was, thereby, assuming the role of an advocate. The exchange to which appellant objects is: In your opinion, is Commissioner Langdon basically an honest person?
I object to that myself. I object to that question. They expressed fear of returning to the Imperialistic world and hoped that the Communist Party in the U. Some spoke of a great harmony they didn't want to exchange for the pain of freedom. How could some of the country's finest reject our culture and way of life? Something inexplicable had happened.
What did it all mean in terms of human psychology and institutions? While different labels were used--thought reform, coercive persuasion--the findings of U. The process didn't depend on drugs, imprisonment or torture. The reality was that we are all not only vulnerable to such ideological conversions, but in various degrees, our own beliefs had been shaped in a similar fashion.
What the experts found was an approach the Chinese had developed, through trial and error, to purify all segments of China. They used it in prisons to reform enemies by immersing them in small groups of other prisoners who were already well on their way to reform. These prisoners had already gone through the process and could testify persuasively to the great benefits of the transformation. By building a high level of trust, the prisoners were ripe to accept a new truth and to then dedicate themselves to the "higher purpose" of their captors.
Once each began to confess and criticize others, it became easier for others to instill conflict and achieve submission. Each was encouraged to attack their former self with a goal of death and rebirth.
Thus was created the "struggle group"--an encounter-type group whose indoctrination sessions were similar to those of many self-help programs that emerged in the U. The Chinese adapted the process for use with groups of university students, businesspeople and workers in an attempt to reform the entire population between and The aim was to create a new man who would recognize the greatest good personally is that which is the greatest good for the group and be enthusiastically active in the movement.
He should choose the simple collective life over materialism. All communications were to be public. Any private conversation was suspect, suggesting a need not to be overheard. Robert Lifton, one of a team of U. And the most vulnerable, often, were teens and young adults whose identities were still taking shape, who were still idealistic and emotionally polarized, and who were dissatisfied with large societies.
All of which describe John Walker Lindh. Interestingly, Lifton also found the system a long-term failure. It only worked as long as its victims remained subject to the environmental influence.
Once removed a person usually self-deprogrammed by 90 days I observed a similar phenomena in encountering American ex-cult members. Edgar Schein, set forth the psychological profile of the devils willing to use such a program. Traits included fanaticism, intolerance, extremism, megalomania, idealism, authoritarianism, excessive self-righteousness, vanity, paranoia, asceticism, excessive commitment, ruthlessness, psychopathy, opportunism, frustrated ambition, non-conformism and cynicism.
Often they are old society failures seeking achievement of former ambitions characterized by "mystical dedication to a perceived imminent social law. Truth may be twisted if it serves the ultimate truth. Followers have no choice but to submit to the regime's paranoia and join in the "hunting out of enemies. History is full of examples of various kinds of brainwashing, from the Inquisitions, to the Salem witch-hunts, to McCarthyism and all of Richard Nixon's men.
But despite the knowledge gained from the studies of Chinese thought reform, we continue to punish without sympathy the victims of this process, instead of trying to understand what led them down that path.
Manson Family Charles Mansonborn in l in Ohio, the illegitimate son of a year-old mother who was sent to prison for robbery, was raised in foster homes and eventually found his way to a life of crime. In prison, he added to his street-wise sensibilities by studying Dale Carnegie, Buddhism, Scientology and a group that worshipped both Christ and Satan, the Process.
Some suspect in exploring the latter two he learned methods of bonding and control. Released inafter his request to stay in prison--home for half his life--was denied, Manson found his way to the Haight-Ashbury section of San Francisco, then the nation's hippie capital filled with flower childen, free love.
Drugs--and plenty of confused, vulnerable young people. He recruited girls for his family who in turn were bait for young men. He set up communes at several locations, including the Spahn ranch in Chatsworth, where he could indoctrinate his recruits in an environment akin to an Al Qaeda training camp.
Through his programming, he taught followers to bond and love each other. He used LSD and sex orgies to break inhibitions. He once initiated a year-old by sodomizing her in front of the group. All the time he talked of his philosophies, exploited weaknesses and instilled fear, at times applying physical punishments for breaking his rules.
Role-playing games were called magical mystery tours in honor of Manson's favorite singing group, the Beatles. He urged denunciation of parents, surrender of egos and past identity and the taking of new names. Susan Atkins became Sadie Mae Glutz. He hinted at deity status.
But while preaching independence, he made them dependent. Whatever you want to do is your karma, he said. It was not even wrong to kill as there was no death, only a change. Death was an illusion. Manson's lifetime frustration at the establishment that had abandoned him boiled over when record producers he met through a friendship with members of the Beach Boys rejected his music.
Then, twisting the meanings of Beatle lyrics, claiming their White Album conveyed special messages for him-"Happiness is a warm gun; Blackbird singing in the dead of night It was all for the good of the Family and mankind. His true motives, however, were far more self-serving. I can do it to you people because that's what you have done to me.
Over two nights in August l, Manson and his followers invaded two homes and slaughtered six people, including actress Sharon Tate, the pregnant wife of director Roman Polanski, coffee heiress Abigail Folger and hair-styling king Jay Sebring.
In his twisted mind, they represented the wealth and fame that had always eluded him. Tex Watson shot Sebring, saying, "I am the devil and I am here to do the devil's business. Ultimately 12 murders were linked to the family and Manson bragged of While it certainly can't be compared with the Twin Towers, it was, at the time, the crime of the century and the world was horrified when the culprits showed no remorse or shame after their capture.
While his family members denied he had any control over their minds, during Manson's trial, they slavishly copied him in court when he struck a crucified pose. When he carved an X on his forehead, they did likewise, with heated bobby pins.
When Charlie shaved his head, so did they. Vincent Bugliosi who prosecuted the case, told the jury all were responsible for the hideous crimes because "they had murder in their hearts. The girls were from middle-class families, one had even been a high school princess, and none had a history of violence. Bugliosi pointed to their alienation to support his argument, but their anti-social history was nothing more than many middle-class youths had experienced in the 60s, dropping out for a while before turning into BMW-driving yuppies.
This wasn't the type of background that typically led to violence. But juries and the world accepted Bugliosi's argument. They wanted to believe this was an aberration, a unique blend of sociopaths uniting in the desert. It just wasn't so. In time, evidence surfaced suggesting that Manson family members were also victims--victims of a ruthless thought-reform regime.
In jail, away from the total control of Manson, all ultimately recanted their allegiance and expressed remorse. Other family members went off and lived normal and good lives. Watson from prison and Paul Watkins wrote books on how Manson programmed them and the family. Watkins had been No. Had he not been deprogrammed, he wrote in his book, it would have been him, not Watson, involved in the murders.
But society has shown little sympathy for those who weren't snatched from Manson's influence in time. After winning a new trial when her attorney mysteriously died in mid-trial, Leslie Van Houten, now older and apologetic, claimed she was brainwashed.
She was convicted and sent back to prison, where she remains after 14 parole denials. Tex Watson became a Minister, married and has children. He has been denied parole 13 times. Atkins and Patrcia Krenwinkel have been denied parole 11 times. Sharon Tate's mother once producedsignatures demanding Van Houten not be released. When Tate's mother died inPresident Bush senior praised her for her vigil. To this date, Bugliosi, perhaps because of the relationships he developed with the victims' relatives, won't advocate parole for family members.
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Even though he claims Manson murdered through control and power over his followers, he cannot see that the followers, too, may have been his victims. They ordered mass suicides, he contends, and that is different than getting people to commit murder for you.
Actually, it is harder to get people to kill themselves rather than others. Still, Bugliosi's argument forgets the murders at the Jonestown airport before the suicides and that many followers who tried to run from the poison distribution were shot in the back.
And the bullets fired by Karesh followers at the ATF agents were not blanks. Someone poured the kool-aid and someone lit the match. Osama bin Laden got his followers to do both for the good of mankind-kill and die. People's Temple While there has long been sympathy for those followers of James Jim Warren Jones who joined him in suicide, there has been none for those who were convinced by the same methods to kill for their family.
Jones, born instarted his own church, The Wings of Deliverance in l in Indianapolis, later changing the name to the more descriptive People's Temple. There he preached a combination of theology, socialism and communism. In l, convinced a thermonuclear war was inevitable, Jones brought his racially mixed flock of the poor and working class by bus to Ukiah, California, believing it to be safe from fallout.
Once on the west coast, where new religions flourished, he was able to recruit more affluent professionals as followers. Rich and poor alike, they all called him "Father. After being robbed and assaulted, a blind woman was taken by ambulance to a hospital, where her alleged broken arm was set. When she came to the Temple for the first time later that night, Jones, amazingly, recounted these events from a "vision" he had, then removed her cast and healed her arm as parishioners shouted praise and the woman sobbed in gratitude.
None of these people knew that Jones had rigged the entire thing, from the robbery, to the attendants, to the makeshift clinic. But soon, under the weight of press and IRS investigations accusing him of bilking followers, Jones led his followers to a remote, 27,acre commune in Guyana, where outsiders were barred.
While they worked non-stop from early morning to late night to build a self-supporting community, former member Debbie Blakely was testifying in a court case that Jones had a rehearsed Doomsday plan wherein they would all die, children included, for the "Cause.
Subsisting on rice and beans, commune members, many over the age of 50, slaved away in the fields while Jones harangued them with lectures and sermons over a public address system. Public beatings and humiliations were standard punishments for any breach of loyalty.
In Novembear of l Congressman Leo Ryan, 53, and a member entourage, including journalists, flew into a small airfield near the Commune in November of l to investigate. After a night at the commune, they set out to return after 16 followers asked to leave with them.
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Fearful of the tales they would tell the journalists, he mounted an assault on the departing plane, killing Ryan and three newsmen and wounding six others. That night, Jones urged his flock to die with dignity, as they had practiced, rather than be herded into prison camps by the government forces that would surely follow.
He taped the grisly mass suicide that followed, convinced, as are all cult leaders, that history would look back on him favorably. On one tape, a father pleads for his daughter's life. But when it is recounted the terrible things the enemy would do to her, the man acquiesces, as the flock applauds. The truth was simpler. Jones would rather die than face prison and humiliation, and like other cult leaders, he wanted his followers to validate his choice by joining him.
All told, 9l4 died, including children. In l Larry Layton a onetime Quaker and pacifist who joined the People's Temple as a young boy in with his sister, Debbie, and their mother, was tried for conspiracy in the Jonestown murders. He had fired the first shot at Ryan's group. Surprisingly 11 jurors were sympathetic to the brainwashing claim and voted for acquittal. Only an alone holdout forced a hung jury and retrial six years later. This time there was no sympathy.
He was convicted and sentenced to life imprisonment. Symbionese Liberation Army Donald DeFreeze, the founder of the SLA, was a black man who spent most of his life in and out of jails, all the while developing a hatred for society. He was doing five years-to-life for armed robbery when, at age 31, he escaped from San Quentin in l, founded the SLA and was reborn Cinque Mtune after the leader of the mutiny aboard the slave ship Amistad.
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He recruited a middle-class white army off the UC Berkeley campus --including a former Goldwater campaign worker, teachers, dramatists and an African missionary--and predictably, gave them new names to go with their new lives, much as Manson did with his family and the Taliban with John Walker.
To his followers, Cinque preached that he wanted to teach and help them. To the public, however, he warned similar to Manson, "I am that nigger you have killed hundreds of times I'm that nigger that is no longer hunted, robbed and murdered. I"m the nigger that hunts you now. He kept his followers isolated and, like Manson, often quoted what be believed were special messages in songs alluding to the revolution.