Unless you mean that the Appellate Division gets tired of the back-and-forth over the record and, perhaps with a hint, either orders a retrial or just dismisses in the interests of justice?
Assuming the writ issues, and they order the judge to accept objections/amendments to his "corrections", etc., and THEN we run into an impasse (quite possible, considering what's happened so far)? Then yeah, my options would be to ask for a retrial (the legally logical one), to ask for a dismissal in the interests of justice (considering the time/effort spent so far for an infraction) OR ask the appellate div. to appoint a neutral referee to objectively settle the record. I doubt I wanna deal with a retrial, and appellate courts consider PC 1385 dismissals VERY VERY RARELY, so I think it may just end up being option three.
Here's what they "suggested" the judge do. My impression is that a regular judicial officer would just do it, even if they didn't agree with the reasoning, instead of risking a slap in the face from a higher court:
If, after such hearing, respondent vacates the certification of the record, sends the modified statement to the parties, reviews any timely submissions, makes any necessary corrections, certifies the modified and corrected statement, and re-orders certification of the record, the writ petition will be dismissed as moot.
Have you considered filing a challenge for cause against this judge? I was doing my own research on this. In the process, I came across a case that might have some application to your ongoing problem. It deals most specifically with judges interfering with writs.
I ran across this case while looking through West's Annotated California Codes, In re Wagner, (2005) 25 Cal.Rptr.3d 201:
At least one other of the cited cases is interesting. The Curle v. Superior Court case is confined to issues about whether a disqualified judge may file a writ to reverse the disqualification. That doesn't seem relevant to your problem However, Ng. v. Superior Court, (1997) 52 Cal.App 4th 1010 may also be of use:And Judge Iles's decision to file a return in these proceedings contradicts her function as a dispassionate fact finder. Except where the issues involve the trial court's procedures rather than the litigation in which the issues arise, it is inappropriate for trial judges to make their voices heard in the appellate process. (Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1016, 1018, 61 Cal.Rptr.2d 49, disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6, 103 Cal.Rptr.2d 751, 16 P.3d 166.) By filing the return, Judge Iles indicates that she believes she has a personal stake in this matter. She is not allowed to have such an interest.
The preparation of a statement of appeal is a procedure of the court, but you could argue that if this is so, then the judge should confine his comments to matters of procedure, instead of offering his opinion about the merits of your appeal.The trial judge also submitted a declaration supporting his decision. Petitioner moved to strike this declaration as well. In the declaration, the judge, inter alia, describes his reasons for not reinstating prior counsel, including various matters not apparent from the record of the hearing. The same considerations which compel us to strike his return to the petition, noted in the preceding section, also require us to strike this declaration. The same prohibition on advocacy by a trial judge should preclude her or him from offering evidence in opposition to a petition for extraordinary writ not involving the procedures of the court.
Apologies if you've read the cases before. I didn't see any mention of these two in this thread, and thought they could be helpful.
Ultimately, the decision is up to Quirky to make but in my opinion, filing a challenge against this judge will simply end up being a whole lot of extra work that might not add much to or change the end result in any way.
The appellate court is clearly on the petitioner's side at this point in the process and will continue to be at least until the record is settled but by then, the rest becomes easy considering the fact that this judge has been and will likely continue to be pretty defiant of what is required of him...
Fortunately for all of us, he has obviously seen his last day from that side of the bench!
And after glancing over the cases, I should add that if it were me, I'd be opposed to a new trial. Fact of the matter is, a new trial is no going to validate an invalid survey, so what is there to accomplish from a new trial except for allowing the people to come (short of being) fully prepared, when in fact, no amount of preparation will change the outcome?
Among the options I discussed above, the only way to "change" the judge is to demand a remand/retrial based on denial of due process in preparing the record on appeal. And I don't want to go that route (yet). (Edit: for precisely the reason TG stated...)
If this judge should somehow try to interfere in the writ briefing process, all the precedents you cited (and more) will come in handy.
Quoting People v. Jenkins (1976) 55 Cal. App. Supp. 3d 55, 65-66
Thanks for to both you and TG for the detailed and thoughtful responses. I wasn't aware of People v. Jenkins; thanks. I figured that you had probably read Ng and In re Wagner, but wanted to be sure, just in case they turned out to be useful. I wish you all the best in your continuing appellate saga.
Quoting King v. Woods (1983) 144 Cal. App. 3d 571, 577-578
This is quickly becoming a farce. The latest "update": I get a letter from the Superior Court appeals clerk saying:
Enclosed is the Modified statement on appeal [same old Nov. 7 CR-144 order] correcting appellant's proposed statement from the Court, under Rule 8.837.
You have 10 days to serve and file Proposed Modifications or Objections to this statement.
Edit: realized one of the questions here was already asked and answered. Do you have to file another motion with the appellate division to get them to enforce the writ using one of the three methods described in King v. Woods?
We have a writ, folks! A deputy LA city attorney was kind enough to respond to my request, and informed the court on 1/23 that they did not intend to oppose issuance of the writ.
On 1/26, a minute order (="opinion") to issue the writ was entered, and so it did!
Here's the important bit:
As expected, the didn't address the inappropriate comments at this stage. But I see that they used the underlined language above, instead of the literal court rule which says "to ensure that it is an accurate summary of the trial court proceedings." Presumably, they have ordered that any changes be to ensure it is accurate, period, not just an accurate summary.Quoting PEREMPTORY WRIT
Let's see where this goes. It appears from the writ's "proof of service"* that even the Appellate Division isn't sure what the correct address to write to the judge is!
* because it's not a p.o.s. CCP 1097 requires that the writ be served (by the petitioner) "in the manner of a civil summons", i.e. usually in person/via process server, instead of just mailing it out. But there is an alternate "acknowledgment by mail" procedure which can be used if you're not in a hurry, where the receiving party has to sign a "notice of acknowledgment" and return it to you in the enclosed prepaid envelope.
As an aside, there was a fascinating red-light-camera case decided by the Court of Appeal last week (unpublished decision). It has potentially huge implications for RLC trials, especially in LA County; I might make a separate post about this later.
I mention it here because the appellant (an attorney) faced a situation somewhat similar to mine; the commissioner completely rewrote her proposed statement, removing important points and making inappropriate comments on the merits as well as inappropriate allegations. The LASC Appellate Div. allowed her to add her own version as part of the record. She doesn't seem to have tried a writ petition, however. The CofA slapped this down, using some of the same citations in my petition.
I think the lesson for us all is to always file a request for electronic recording and/or personally record and insist upon it at trial. (if still refused and you are not satisfied with the statement on appeal, case law supports an immediate remand for retrial). I got lucky with the recording because it was a pro-tem judge; I don't think LASC routinely records infraction trials.Quoting People v. Borzakian CA2/7, Filed 1/23/12 (unpublished)