McClintock v. Djulus, No. D049757 (D4d1 Apr. 14, 2017)
A divorce case gets assigned to a commissioner. Wife, who is represented, signs the consent form but Husband, who is pro per, did not. Indeed, the record doesn’t reflect that at the original hearing Husband was ever given the form or even informed that the “judge” to whom the case was assigned was actually a commissioner. The commissioner made several rulings at that hearing. At a later hearing, after being informed that the presiding officer was a commissioner, Husband objected to proceeding before her. But the commissioner ruled that Husband’s participation in the prior hearing was a “tantamount stipulation” to her presiding over the case.
That was a mistake. A stipulation to a commissioner doesn’t need to be formal or in writing. And indeed, it can sometimes be implied from the fact of actively litigating before a commissioner after the party becomes aware that the presiding officer is not, in fact, a full-blown superior court judge. But that rule can’t apply if a party did not actually know that the “judge” is just a commissioner. And the record here shows that Husband did not.
So it was error to find that husband had engaged in a tantamount stipulation by participating in the prior hearing. And indeed, that error required vacation of all of the commissioner’s orders since she had no authority to act.
Reversed.
Showing posts with label commissioners. Show all posts
Showing posts with label commissioners. Show all posts
Wednesday, July 5, 2017
Monday, June 20, 2016
Can't Prove a Negative on Appeal Without a Reporter's Transcript
Elena S. v. Kroutik, No. D068831 (D4d1 May 18, 2016)
Like last year’s Michaels case, this case involves a superior court policy of having commissioners resolve family court restraining orders. Respondent objects to the reference and claims he didn’t consent. But unlike in Michaels, there’s no record of the oral proceedings in the trial court, even though the proceedings were, in fact, reported. Respondent apparently decided to proceed without a reporter’s transcript.
That creates a problem because anything during the oral proceedings that might support an affirmance is simply presumed to have occurred. Including an on-the-record oral stipulation to proceed before the commissioner.
The Court also half-heartedly suggests it would affirm on an implied waiver ground as well. By participating in the hearing, says the court, the defendant implicitly consented to proceeding before the commissioner. The court notes that that theory doesn’t entirely make sense, but feels like it is bound by a 1991 Supreme Court decision that relied on that logic.
Affirmed.
Like last year’s Michaels case, this case involves a superior court policy of having commissioners resolve family court restraining orders. Respondent objects to the reference and claims he didn’t consent. But unlike in Michaels, there’s no record of the oral proceedings in the trial court, even though the proceedings were, in fact, reported. Respondent apparently decided to proceed without a reporter’s transcript.
That creates a problem because anything during the oral proceedings that might support an affirmance is simply presumed to have occurred. Including an on-the-record oral stipulation to proceed before the commissioner.
The Court also half-heartedly suggests it would affirm on an implied waiver ground as well. By participating in the hearing, says the court, the defendant implicitly consented to proceeding before the commissioner. The court notes that that theory doesn’t entirely make sense, but feels like it is bound by a 1991 Supreme Court decision that relied on that logic.
Affirmed.
Tuesday, September 15, 2015
Manufacturing Consent
Michaels v. Turk, No. E060854 (D4d2 Aug. 31, 2015)
I once had a pro bono case in LA County mental health court where we were trying to get our client released from a county-imposed conservatorship. We won. It took less than half an hour hanging in that Glassell Park courtroom to recognize that the joint suffers from a severe breakdown of a functioning adversarial process. Most of the putative conservatees are represented by public defenders who don’t actually much try to win. Presumably, they believe in good faith they are acting in their clients “actual” best interests—as opposed to their stated ones—by letting them stay wards of the county. In the twenty or so hours I spent sitting around waiting to be called for various matters, I probably watched more than fifty hearings. In all the time I was there, my guy was the only one to leave through the front door.
I once had a pro bono case in LA County mental health court where we were trying to get our client released from a county-imposed conservatorship. We won. It took less than half an hour hanging in that Glassell Park courtroom to recognize that the joint suffers from a severe breakdown of a functioning adversarial process. Most of the putative conservatees are represented by public defenders who don’t actually much try to win. Presumably, they believe in good faith they are acting in their clients “actual” best interests—as opposed to their stated ones—by letting them stay wards of the county. In the twenty or so hours I spent sitting around waiting to be called for various matters, I probably watched more than fifty hearings. In all the time I was there, my guy was the only one to leave through the front door.
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