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(For Frank ‘Austin’ England III) 

THE SUBSTANTIVE VS. PROCEDURAL LAW

Board of Cosmotology

Adjective
adjective(no comparative or superlative)

1.  Of or relating to or functioning as an adjective;
adjectival syntax
an adjective clause

2. (law) applying to methods of enforcement and rules of procedure;
adjective law

Adjective
substantive
1.  Being the essence or essential element of a thing; “substantial equivalents”; “substantive information” [syn: substantial, in essence]

2. (law) applying to essential legal principles and rules of right; “substantive law” [syn: essential] [ant:adjective]

3. Having substance and prompting thought; “a meaty discussion” [syn: meaty]

Legal processes are legitimated in two ways, and the distinction here parallels Hans Kelsen’s differentiation of adjective and substantive law. Adjective law involves those norms which legitimate judicial authority or give judicial officials the right to make judgments and the power to be obeyed. While substantive law are those legal norms designed to regulate the action of a population. A strong belief in law and order is basically a facet of adjective law and yields positive and prior sanctions to the decisions of the judiciary. However, the analytic distinction between these norms should not be allowed to obscure their interdependence in the real world.The basic assumption underlying adjective law is that the norms of substantive law are powerful restraints on the substantive decisions of the judiciary. Consequently, to the extent that one challenges decisions made in light of substantive law, one also challenges the authority of the decision makers. More broadly, and perhaps even more importantly, to the extent that one demonstrates that substantive legal norms do not and probably cannot effectively restrain the administration of law, to that extent one calls into question the very conception of judicial authority vis-a-vis the desire for free political and social institutions.

According to Idaho, the amendment requires the United States to comply with all state laws applicable to general water right adjudications. Idaho argues that the first sentence of the amendment, the joinder provision, allows joinder of the United States as a defendant in suits for the adjudication of water rights. It then construes the amendment’s second sentence, the pleading provision, to waive the United States’ immunity from all state laws pursuant to which those adjudications are conducted. Idaho relies heavily on the language of the second sentence stating that the United States shall be “deemed to have waived any right to plead that the State laws are inapplicable.” Because the “filing fees” at issue here are assessed in connection with a comprehensive adjudication of water rights, Idaho contends that they fall within the McCarran Amendment’s waiver of sovereign immunity.

The United States, on the other hand, contends that the critical language of the second sentence renders it amenable only to state substantive law of water rights, and not to any of the state adjective law governing procedure, fees, and the like. The Government supports its position by arguing that the phrase “the State laws” in the second sentence must be referring to the same “State law” mentioned in the first sentence, and that, since the phrase in the first sentence is clearly directed to substantive state water law, the phrase in the second sentence must be so directed as well.

There is no doubt that waivers of federal sovereign immunity must be “unequivocally expressed” in the statutory text. See Irwin v. Department of Veterans Affairs,498 U.S. 89, 95 (1990); Department of Energy v. Ohio,503 U.S. 607, 615 (1992); United States v. Nordic Village Inc.,503 U.S. 30, [508 U.S. 1, 7]   33-34 (1992). “Any such waiver must be strictly construed in favor of the United States,” Ardestani v. Immigration and Naturalization Serv.,502 U.S. 129, 137 (1991), and not enlarged beyond what the language of the statute requires, Ruckelshaus v. Sierra Club,463 U.S. 680, 685 -686, (1983). But just as “`we should not take it upon ourselves to extend the waiver beyond that which Congress intended[,] . . . [n]either, however, should we assume the authority to narrow the waiver that Congress intended.'” Smith v. United States, 507 U.S. 197, 206 (1993) (quoting United States v. Kubrick,444 U.S. 111, 117 -118 (1979)).

We are unable to accept either party’s contention. The argument of the United States is weak, simply as a matter of grammar, because the critical term in the second sentence is “the State laws,” while the corresponding language in the first sentence is “State law.” And such a construction would render the amendment’s consent to suit largely nugatory, allowing the Government to argue for some special federal rule defeating established state law rules governing pleading, discovery, and the admissibility of evidence at trial. We do not believe that Congress intended to create such a legal no-man’s land in enacting the McCarran Amendment. We rejected a similarly technical argument of the Government in construing the McCarran Amendment in U.S. v. District Court For Eagle County, 401 U.S. 520, 525 (1971), saying “[w]e think that argument is extremely technical; and we decline to confine [the McCarran Amendment] so narrowly.”

We also reject Idaho’s contention. In several of our cases exemplifying the rule of strict construction of a waiver of sovereign immunity, we rejected efforts to assess monetary liability against the United States for what are normal incidents of litigation between private parties. See, e.g., United States v. Chemical Foundation Inc., 272 U.S. 1, 20 -21 (1926) (assessment of costs); Library of Congress v. Shaw, (1986) (recovery of interest on judgment); [508 U.S. 1, 8]Ohio, supra, at 619-620 (liability for punitive fines). And the McCarran Amendment’s “cost proviso,” of course, expressly forbids the assessment of costs against the United States: “[N]o judgment for costs shall be entered against the United States.”

The Supreme Court of Idaho pointed out in its opinion that “fees” and “costs” mean two different things in the context of lawsuits, 122 Idaho, at 122, 832 P.2d, at 295, and we agree with this observation. “Fees” are generally those amounts paid to a public official, such as the clerk of the court, by a party for particular charges typically delineated by statute; in contrast, “costs” are those items of expense incurred in litigation that a prevailing party is allowed by rule to tax against the losing party. See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2666, pp. 173-174 (1983). Before Idaho altered its system for recovering its expenses in conducting comprehensive water right adjudications in 1985 and 1986, Idaho courts, at the timtime of entry of final judgment, used to proportionately tax the “costs” of the adjudication against all parties to the suit, and not simply against the losing parties. Idaho Code 42-1401 (1948). When Idaho revised this system, many of the items formerly taxed as “costs” to the parties at the conclusion of the adjudication were denominated as “fees,” and required to be paid into court at the outset. This suggests that, although the general distinction between fees and costs may be accurate, in the context of this proceeding, the line is blurred indeed.

While we therefore accept the proposition that the critical language of the second sentence of the McCarran Amendment submits the United States generally to state adjective law, as well as to state substantive law of water rights, we do not believe it subjects the United States to the payment of the sort of fees that Idaho sought to exact here. The cases mentioned above dealing with waivers of sovereign immunity as to monetary exactions from the United States in litigation show that we have been particularly alert to [508 U.S. 1, 9] require a specific waiver of sovereign immunity before the United States may be held liable for them. We hold that the language of the second sentence making “the State laws” applicable to the United States in comprehensive water right adjudications is not sufficiently specific to meet this requirement.

The judgment of the Supreme Court of Idaho is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
As the Court points out, ante, at 6-7, before 1985, “fees” comparable to those at issue in this litigation were taxed as “costs” in Idaho. Because I am persuaded that these exactions are precisely what Congress had in mind when it excepted judgments for “costs” from its broad waiver of sovereign immunity from participation in water rights adjudications, I concur in the Court’s judgment. [508 U.S. 1, 10]

III. SUBSTANTIVE LAW AND PROCEDURAL LAW


1.4 In theory, the distinction drawn between
Substantive law
and procedural law is reasonably clear. Broadly speaking, according to Jowitt’s Dictionary of English Law ,  the substantive law is the law which is administered by the courts, and procedural law (or adjective law as it is sometimes called) governs the practice and procedure of the courts. In practice, the two are often closely interwoven, and it is sometimes difficult to tell where their respective boundaries begin and end. It is inevitable that our terms of reference will take us into some areas of the criminal law which are partly substantive and partly procedural.

1.5 In the context of the criminal justice system procedural law has a meaning wider than that usually given to it in other contexts.It is commonly understood to include procedures other than those followed by the criminal courts themselves in the course of trials or other formal proceedings. it extends both to rules governing police investigations and to rules governing the implementation of sentencing decisions.  The system is set in motion by the investigation of a suspect and, if he or she is charged and convicted, continues to operate until the sentencing order of a court is satisfied. Rules of criminal procedure apply at all stages of the process.

(“Furthermore, it cannot be doubted that courts may not by rule of practice either by statutory or inherent rule making authority, amend or abrogate a right resting in either substantive or adjective law.”); Barnhill v. State, 834, 842 So.2d 836 (Fla. 2002), (“Section 38.10,”)

Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the “substance” of the matter.

Procedural law provides the “process” that the case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur.

Substantive Law
n. The law establishing principles, which creates and defines the rights limitations that govern society. Substantive law differs from “procedural law” which establishes the rules and methods to be used to obtain one’s rights, including how the courts are conducted.

WHAT IS THE DIFFERENCE BETWEEN PROCEDURAL AND SUBSTANTIVE LAW?

Substantive law defines the actual law set down by the legislature such as elements of a crime, penalties to be imposed, rules of evidence, etc. Procedural law defines the manner in which the criminal case and its trial will be handled.A violation of a substantial rule of law is more likely to result in a reversal of a conviction. A violation of criminal procedural law is less likely today to result in a reversal unless it relates to a constitutional protection, such as search and seizure, Fifth Amendment, etc. Even here the trend is to limit those areas where a reversal will be possible.


IMPLEMENTED REGULATIONS

690.015 Prohibited acts. This section establishes prohibitions relating to the practice of hair design, barbering, facial technology and nail technology. The prohibitions under this section are subject to the exemptions under ORS 690.025. A person who violates a prohibition under this section is subject to the penalties under ORS 690.992 in addition to any administrative action taken by the Board of Cosmetology under ORS 690.075 or any civil penalty imposed by the Health Licensing Office under ORS 676.612. A person violates a prohibition under this section if the person does any of the following:
(1) Performs or attempts to perform as a practitioner without a certificate, demonstration permit or certificate of identification.
(2) Operates a facility without a license or temporary facility permit.
(3) Operates a facility unless it is at all times under the direct supervision of a practitioner.
(4) Practices hair design, barbering, facial technology or nail technology as an independent contractor without a registration.
(5) Displays a sign or in any way advertises or purports to offer services in a field of practice without first obtaining a permit, certificate, independent contractor registration or facility license.
(6) Knowingly makes a false statement on an application to obtain or renew a certificate, registration, license or permit or to obtain a certificate of identification.
(7) Allows an individual in the employ or under the supervision or control of the person to perform in a field of practice without a certificate or permit.
(8) Sells, barters or offers to sell or barter a document evidencing a certificate, registration, license, permit or certificate of identification.
(9) Purchases or procures by barter a document evidencing a certificate with intent to use it as evidence of the person’s qualification as a practitioner.
(10) Materially alters with fraudulent intent a document evidencing a certificate, registration, license, permit or certificate of identification.
(11) Uses or attempts to use as valid a fraudulently obtained, counterfeited or materially altered document evidencing a certificate, registration, license, permit or certificate of identification. [1977 c.886 §3; 1981 c.141 §1; 1983 c.151 §2; 1987 c.31 §3; 1993 c.267 §2; 1995 c.343 §62; 1999 c.425 §2; 2003 c.547 §39]

 

690.165 Powers of board; rules.

In addition to the powers otherwise granted by ORS 345.430 and 690.005 to 690.235, the Board of Cosmetology shall have the power to:
(1) Determine whether applicants are qualified to take certification examinations.
(2) Administer, approve or recognize certification examinations and designate the time, place and administrators of certification examinations.
(3) Contract for the administration of examinations as part of regional or national examinations and contract with independent testing services for examination administration.
(4) Direct the Health Licensing Office to issue certificates, registrations, licenses, permits and certificates of identification to individuals determined by the board to be qualified.
(5) Except as otherwise provided in ORS 690.205 (2) or other provision of law, adopt rules establishing and enforcing standards for safety, infection control, professional conduct and any other matters relating to fields of practice, facilities or locations used by persons providing services regulated by ORS 690.005 to 690.235.
(6) Direct the Health Licensing Office to suspend, revoke, limit or refuse to issue or renew certificates, registrations, licenses or permits or impose a period of probationary activity on the holder thereof.
(7) Do any act necessary or proper to effect and carry out the duties required of the board by ORS 690.005 to 690.235.
(8) Adopt rules prescribing standards of professional conduct for persons practicing hair design, barbering, facial technology or nail technology. [1977 c.886 §21; 1983 c.151 §14; 1987 c.31 §9; 1993 c.267 §13; 1995 c.343 §68; 1999 c.425 §18; 2003 c.547 §46]

690.205 Rules; approval of Department of Human Services; when domestic use of facility permitted. (1) The Board of Cosmetology has authority to make reasonable rules for the administration of the provisions of ORS 345.430 and 690.005 to 690.235 and prescribe safety and infection control requirements for facilities. Infection control requirements for facilities shall be subject to the approval of the Department of Human Services. A copy of the rules adopted by the board shall be furnished by the board to the owner or manager of each facility.
(2) Notwithstanding subsection (1) of this section, the use of the facility for domestic purposes may not be prohibited by the board if the part devoted to domestic purposes is in a completely separate room not used by customers, with walls extending from floor to ceiling and with any connecting doors kept closed while the facility is in actual operation.
(3) Any rules adopted by the board shall be adopted in accordance with the procedures set forth in ORS chapter 183. [1977 c.886 §§20,22(2); 1983 c.151 §16; 1993 c.267 §15; 1999 c.425 §21; 2003 c.547 §48]

690.992 Criminal penalties. (1) Violation of ORS 690.015 is a Class B misdemeanor.
(2) Operates a facility without a license or temporary facility permit.
(5) Displays a sign or in any way advertises or purports to offer services in a field of practice without first obtaining a permit, certificate, independent contractor registration or facility license.
(8) “Facility” means an establishment operated on a regular or irregular basis for the purpose of providing services in one or more fields of practice.
(9) “Field of practice” means:
      (a) Barbering.
      (b) Facial technology.
      (c) Hair design.
      (d) Nail technology.
(10) “Hair design” means, when done upon the human body for cosmetic purposes and not for the treatment of disease or physical or mental ailments any one or more of the following practices:
      (a) Shaving, trimming or cutting of the beard or mustache.
      (b) Arranging, styling, dressing, curling, temporary waving, permanent waving, relaxing, cutting, singeing, bleaching, coloring, dyeing, cleansing, shampooing, conditioning, applying hair tonics or similar work upon the hair of an individual.
      (c) Massaging the scalp and neck when performed in conjunction with activities in paragraph (a) or (b) of this subsection.

(Blog Masters Note:   ‘Austin’ left off the brackets in the last regulation, but they are there.   Brackets indicate matters that are to be omitted, and can’t be enforced on the individual without consent.  We give them consent by signing their documents, or geing a U.S. citizen.  All States follow the same Style Manual rules, seeing as how they are incorporated under the federal government. )
UNITED STATES PRINTING OFFICE STYLE MANUAL 2008 Publication , at Chapter 8, 8.19 — 8.20 Brackets – In bills, contracts, laws, ect., indicate matters that are to be ‘omitted’.
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