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.

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.