How to Disqualify A Biased Judge Or Commissioner. Its Easier Than You Think



Want a different judge to hear your California traffic ticket or criminal case? Afraid to let a Commissioner hear your misdemeanor case? There is something you can do to get a different Judge to hear your case.

Many states have similar laws to California on disqualifying judges. In California, the Code of Civil Procedures provides a method of disqualification of a judge or commissioner that may be used in civil cases, criminal cases, and even traffic court.

Yes, you can disqualify a biased judge or commissioner if you do it early.


A quick and easy disqualification can be made by filling out a written form and filing it. However, the court must also consider such a request as an oral request or motion made in open court. If done correctly, disqualification is automatic, effective and immediate.

Criminal Defense Lawyers call it “Point Sixing” a judge. It can be a useful defense tool. Here are the details.

Artist's depiction of Biased Judges

Artist’s depiction of Biased Judges

California Code of Civil Procedure section 170.6 provides that a judge must disqualify him or herself upon a timely motion by any party or attorney for qualification, so long as there is a sworn statement under oath that the party or attorney believes that that the judge is biased against that party or attorney. A challenge to a judge under section 170.6 is called a “pre-emptory challenge”. Sec. 170.6 provides for judicial disqualification without any evidence of actual bias.

Once a Sec. 170.6 motion has been filed, with a statement under penalty of perjury or an oral statement under oath indicating that the judge is so biased “that the moving party or her attorney believes she cannot have a fair and impartial trial or hearing”, the judge ordinarily has no choice but to disqualify himself.

The peremptory challenge right is “automatic”. A good faith belief in the judge’s bias is alone sufficient to insure that the challenged judge will no longer be permitted to sit.

Some California Appellate courts have ruled that when a party properly makes a proper motion under Code of Civil Procedure sec. 170.6, the judge immediately loses jurisdiction and any action he takes on the case afterwards is void.

A motion to disqualify a judge under Sec. 170.6 must be made in a “timely fashion”, which generally means at the first hearing where a judge has been assigned to a case. In other words, the motion must be made at the first opportunity. You cannot decide to make the motion after you have allowed a judge to hold hearings in a case. You may only use one 170.6 challenge per case.

 

To make a CCP 170.6 motion to disqualify a judge, you should use the standardized local judicial counsel form. Most courts will post a Local CCP 170.6 form (such as this one for LA County) on the courts web site in a “pdf” format. It is best to fill out the form before going to court. Once there, if you decide to disqualify the judge, when your case is called, tell the judge you have a motion to file and hand the form to the bailiff or court clerk, who will show it to the judge.

If you cannot get or find a form for the court, you can make the motion orally, or in a simple letter which declares under penalty of perjury that you have a belief the judge is biased.   Review the sample above for help.

Don’t feel bad or guilty about disqualifying a judge. It happens everyday in every court, to every judge. If you need to change judges to protect your interests, do it.

One more tip: If you are charged with a misdemeanor in traffic court, the court must get your permission to have a Commissioner, instead of a real judge, decide your case.  Commissioners are just court employees, not real judges.

If you do not want a “Commissioner” or Judge Pro Tem to hear your case, just inform the court in writing or orally at the first moment they call your case in court that you do not “stipulate” (or agree) to have a Commissioner hear your case. The court should then transfer your case to a real judge who has been appointed by the Governor or Elected by the Voters.


About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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71 Responses to How to Disqualify A Biased Judge Or Commissioner. Its Easier Than You Think

  1. Dennis Murdaugh says:

    Is there a blog like this one that deals with criminal law? BTW your blog is VERY informative.

  2. Sharon Bush says:

    I filled this out but am confused on what to click on nex

  3. Vivian says:

    Difference Between Commissioner and Judge on a Math Defense to Speeding.

    Thanks for this informative website. I found this website because I was curious about the difference between a judge and a judicial officer (Commissioner) after I filed the motion to dismiss the case 2 times. After I read your website, I found the Orange County court website has the PDF form for it (C.C.P. 170.6). However, it has a sentence “The aforementioned judge has/has not presided over a hearing, motion, or proceeding in the past in this case.” This Commissioner has answered my Motion to Dismiss the case already, so I cannot use this form. I am in a catch 22, I did not know it will be answered by a Commissioner to begin with. My arraignment will be on August 19, 9 days away. I do not know my options now. I will appreciate any advice you may have. The citation was speeding of 69 over 50. I was on a slow lane (far right hand side) following a white car for a good 3 minutes before I was pulled over. I asked the officer about if the car in front of me was speeding or not, he said no. I did the math, I would have hit the car in front 69 vs 50 in 2.14 seconds using Algebra. But I do not believe this commissioner will be fair. Sorry for the long question but I thought you may want some more details about it. Thanks in advance! I truly appreciate your reply! Sincerely,

    • Vivian,

      If you want to disqualify a judge because you thing he/she may be biased against you or your cause, you have to do it before the first hearing on the case (as soon as you see the judge you are worried about for the first time).

      If the judge (commissioner) is already hearing matters on your case, it’s too late for the “pre emptory challenge” of 170.6. At that point, if you feel the judge was unlawfully biased, and made errors of law, you have to appeal the decision after it comes.

      As side from that, I would say in general defenses to speeding based upon mathematical analysis almost never work – because you have no way to establish the value of the underlying foundational variables without expert testimony.

      Your idea of “I asked the officer if the other car was speeding” is ridiculous. Just palin flat redic.

      I mean Plain redic. “Palin” was a slip of the finger, so to speak. Accident, I think.

      First of all that info would never be admissible in a trial. What other people were doing when you were speeding is not relevant to the question of weather or not you were traveling at a speed of 51 or more.

      And what about the timing? Did you ask the officer “Was that driver traveling at exactly 50 mph for exactly 3 minutes?”

      Of course not! You asked him if the (her) other driver was “Speeding”!!!!!!!!! Hello Math genius! Where are your details? How fast was that car traveling exactly for how long? For exactly how long were you traveling at exact 69? How are you going to get those details into evidence for your “MATH”?

      Ohhhh one last impossible foundation fact to get – What was the exact distance between you and the other car? How did you determine that distance? How long was it exactly constant for?

      And by the way – for what length of time did the officer measure your speed? Maybe you were only breaking the law for 4 seconds.

      See my point? Your math defense is impossible. Dont waste your time on that.

      Try convincing the judge you were traveling at 50mph or less – not that you “could not have been speeding because I did not rear end the non speeder in front of me…”

      Terrible defense. Did I say that?

      Anyway, I could be wrong. I’m often wrong. And it’s not my ticket – I say go for it. Report back on how it went.

      What is the difference between a Judge and a Commissioner in CA traffic courts?

      In effect, no difference. Commissioners can hear criminal and traffic court cases. Commissioners are basically Licensed Attorneys that are full time at will employees of the elected and appointed judges. They are judicial officers, and for traffic court cases, have the same power.

      Judges are usually used to send people to prison, or similar difficult things like take people’s children after after they get caught driving on meth.

      Commissioners generally handle misdemeanors, etc. In general. There are exceptions.

      Judges Pro Tem are different. They are appointed by the presiding judge, not hired. They are licensed attorneys, usually trial attorneys with more than 10 years of experience. They work for free, because they care about they court system and want to give back to the community.

      Or because they like the free coffee and powdered creamer.

      Should I keep writing or just stop?

  4. Reanna says:

    Hi-

    Thank you for posting your information it was REALLY helpful. I do have a couple questions. I went before a commissioner and plead no contest (I wanted to get the case over and done with, thinking the commissioner would let me complete community service- like everyone else he let.) He lowered my citation to a infraction before he heard the breed of my dog- (it was a ticket for not having a dog on the leash). As soon as he heard the breed, he shared his comments on my case and then stated I had to pay the whole fine and I shouldn’t have let it happen, etc. etc. He was bias because the breed of my dog. It has been a week since I plead no contest. Can I still file a motion to speak with another judge, to see if they would let me do community service since paying the whole fine would be a financial hardship? Any advice would be greatly appreciated.

    • Reanna,

      This is actually a good comment. This question comes up a lot.

      Answer:

      There is no such thing as a right to community service. You do not have a right to get the same sentence as everyone else in the courtroom. Every case is different.

      Once you plead “no contest” or guilty (same thing), you are admitting guilt. When that happens, people in court stop presuming you are innocent.

      The judge (commissioner) is free to sentence you to anything within the law – including jail time if it was a misdemeanor (probably not.) But if the max penalty was a fine, you can be sentenced to a fine.

      There is no law that requires the court to give poor people community service options.

      Your case is over. No, you cant undo it. And even if you could – it’s too late because you admitted guilt, and a new trial would result in a guilty verdict anyway.

      “I dont like my sentence” is not a a basis for appeal.

      Bias based upon dog breed? Sure. I believe it. But if the sentence was within the max penalty listed in the statute, it is a legal sentence. And aside from that, your idea would require proof that that commissioner gave other dog breeds a lighter sentence under the same facts – and that, so it seems to me at this moment, is impossible.

      You never know though. You can try a google search for that judge’s name and “dog verdicts by breed”.

      My question is this: How in the world did that evidence come into evidence? Was there a dog expert to testify? Or a neighbor who has zero training, or a cop who has never owned a dog and has no credible basis for providing an expert OPINION on the breed of that dog. What, you say?…. they did a DNA test?

      My advice? Pay the fine on time, in person. Get proof you paid.

  5. JC says:

    I had a commissioner refuse to look at any of the evidence I brought to court. I was very prepared but never given the opportunity to present my evidence. I was being sued by an attorney and the commissioner awarded her more than even her actual damages because it wasn’t worth his time to even check the math. I have been told by many including a legal aid for self help to appeal but it seems like these never win. The commissioner made a rash quick decision because he didn’t like my answer to his question. He awarded an attorney who I had documented proof of her lying on numerous occasions but he refused to even look at it. His judgement was all because of his ego and how dare I question how he came to any conclusions. If any judge took the time to actually look at the facts the case is crystal clear. Afraid appeal judge would never go against what his fellow judge ruled no matter how blatently wrong. Help.

    • DortLaw says:

      JC,

      Is there a question in here? Or just a rant?

      The only thing positive I an say about this is that not all documents are admissible evidence. Documents with out of court statements by people not in court are often not admissible. And sometimes judges will refuse to look at irrelevant evidence. For example, if the case was about failure to pay a bill – and you want to present evidence that the attorney lied to his wife in 1988 – well – that is not admissible evidence.

      I am not sure if that happened to you….

      Generally, errors of law are legitimate issues for appeal. Failure to consider admissible, relevant evidence can be an error of law.



  6. frdmfytr says:

    Great site! Thanks for taking time to answer questions. It’s appreciated and very comendable.

    Courts seem to ignore basic rights by limiting options, increasing obstacles and applying contradictive laws. Traffic court abuse is rampant. In your opinion, when is the line crossed “acting in the interest of justice” and “extortion under color of office/official right”?

    What are some of the actions people take in that event?

  7. Jim says:

    Hi, just want to get your thoughts. At my traffic court arraignment May 10, when I said that I had a motion to file (demurrer), the commissioner raised his voice (almost yelling) and said “Not on a citation!” I replied “yes.” He asked me what it was on, I answered, he then said loudly again “Not on a citation.” I finally got him to the point where he said “File whatever you want” and I gave it to his bailiff.
    At my trial yesterday, I brought it up to a different commissioner and asked for dismissal for denial of due process. It was denied, as was the demurrer, which didn’t surprise me, as they are kangaroo courts.
    But, something happened before my trial yesterday, in a different trial 3 people before me. The commissioner started off stating that the defendant looked familiar and asked if they’d met before. The defendant said that he didn’t think so, but in his line of work it’s possible that they had and didn’t know it. He stated that he was a former Marine and Police chief in a different state. The commissioner stated that he was a Marine as well, and asked the defendant if he had any problem proceeding. The defendant said no. During the defendants time for speaking, after the officer gave testimony, he spoke for about five minutes, basically giving his Marine Corps history, then his police history and really didn’t have anything coherent (it was a major ramble) to say about the charge against him except that the officer didn’t turn his emergency lights on until he got into the driveway of his home. He didn’t deny the charge. The commissioner ruled in favor of the defendant, during this time the officer was just shaking his head. During my trial as I was questioning my officer (different one, but he was in courtroom during prior trial above), he was able to work into one of his answers that he was in the Marine Corps. Now, if you know anything about Marines, it’s once a Marine always a Marine, and they take care of their own. I know this because for the last 6 years I’ve worked with the Marine Corps and no I’m not a Marine and no I didn’t say anything about my job in court. Is there any Bias here? Yes I lost, but my initial bail was $1,114 and after court it was $235 so I saved 800 bucks by fighting it.This was in San Diego County.

    • DortLaw says:

      Jim,

      From a defense attorney’s point of view – sounds like the classic Semper Fidelis Jimmy Jack.

      Did you try saluting the flag when they called your case?

      In California, you can legally challenge a traffic court allegation by Demurrer. But it almost never happens because the (probably) only legitimate grounds for a Demurrer is: “The Complaint Fails as a Matter of Law to State a Valid Cause of Action” (alleged violation). But because the traffic tickets nowadays are all done on required, standardized Judicial Council Forms, all of the citations do in fact state a valid cause of action so long as the vehicle code section is a real section and it is legible.

      Some people try to Demurer to a traffic court case on the grounds that they think (because they read some internet article by a quack without a law license) the “Complaint” is not “Verified as Required by Law”. But that never works because a signed judicial counsel form for traffic citations (aka “promise to appear”) is in fact a “VERIFIED COMPLAINT” once the officer signs it and files with the court. I wrote an article here somewhere about that. But I refuse to give you a link, because I am not getting paid for this work.

      I dont know what your Demur (or was it a Demurrer? they are different things and I am intentionally trying to confuse here) was about, but that is the standard pattern.

      When people come to my defense attorney self with some kind of Demurrer question (Demur?) I usually tell them it is way better to just say “I am innocent!” and testify that you complied with the law. If you did, that is.

      In other words – if you have a real defense – dont waste time on an illusory demur issue.

      Browse Our Attorney Drafted CA Self Help Forms

      Free Attorney Case Review

  8. jamie says:

    Can a Judge give an opinion on weither or not he believes you are guilty and that “you probably won’t even be found not guilty with a really good lawer” during arraignment? (After telling the judge you are entering a not guilty plea)? Wouldn’t this make him bias since he has not heard all of the merits and is determining guilty/not guilty prior to all the evidence?

  9. MickeyG says:

    A judge is an officer of the court. The court is part of the state government, so the judge is an officer of the state. The state is a party to the action in court (any traffic ticket or the like). So the judge is an officer to a party. That is an automatic disqualification in most states. This holds true for city courts and courts of municipalities.

    • Mickey,

      Non sequittor.

      The state is not a party to a traffic or criminal case. The plaintiff in a criminal or traffic court case in CA is THE PEOPLE of the state of CA, not the state.

      You, my friend, are one of those people who could benefit greatly from a reading of the very short and interesting Trial of Socrates. Get a copy of the text. Read, sleep with under your pillow. Memorize it. Study it. IT will blow your mind.

      Browse Our Attorney Drafted CA Self Help Forms

      Free Attorney Case Review

      • MickeyG says:

        Thanks for the recommendation, I will do that. In many states the State is a party, as it is in mine.

  10. Robert says:

    Hi- in dire need of help… needing to get commissioner replaced with judge asap. Brief review- fighting with landlord because items (actuall permanent fixtures were taken from the home before we moved in) rent is 2k a month and we have RAT infestation, 1 of the bathrooms we could not use for 6 months due to broken shower and toilet, broken dishwasher, washer & dryer broken because repair man says lines had been clogged for a year, she stole the pool pump while we were back & forth moving and sent laborers to remove the solar heating panels from the roof that heat the pool so we havent been able to use it but the first month or so after moving in as its been ice cold since- its just been a proponderance of issues that have been ignored so I decided to go to court and fight to have these things repaired before paying any more rent. UD was filed and served upon my 13 yr old daughter (theyre a joke) motion to quash service was filed and denied by “commissioner” then she has the nerve to say I have 2 days to answer (which I know is incorrect- I have 5) and at the motion to quash service hearing she sets trial date for 2 days after I was to file my answer! (which was today) So I filed the demur to landlords breach of implied warranty of inhabitabilty and breach of quiet enjoyment of the premises and requested that the plaintiff be ordered to make repairs and I’ll resume with the lease or issue refund of monies paid and I’ll be gone. Please tell me how the heck a trial date is set before I have a chance to answer and 2 days after my answer was due?? what can I file about the violation of my right to due process and get my rights reinstated with that regard? its absurd. This commissioner is on a power trip- she ordered several bench warrants and $500 fines to individuals that did not show up to a civil hearing instead of just entering a default?!! So I have a court date from the clerk to be at the demur hearing in a couple weeks and the trial date that the commissioner set before even having the opportunity to file my answer- how do I get that date in 2 days dismissed and go through my right to due process? Also, what is the process once I file to have commissioner removed and switched to a judge? are there any codes that I can use to include in my request to have her removed for the way she’s handled it thus far? Theres no way I’ll get a fair trial, I have reciepts and statements from repairmen that Ive had to call out here to support my case. One more thing sorry- the plaintiffs laywer lied in his sworn affidavit that it is being heard in the proper courthouse which is 20 miles away from the property (but conveinant to him and it looks like he and the commissioner are buddies with the way things have gone) the proper courthouse is 3/4 of a mile from the property- I can see the courthouse from my backyard! so i want to file a request for dismissal and have it transferred to the right venue-its ridiculous, its a 30 min highway ride one way and like I said I believe the commissioner has a bias toward the plaintiffs attorney as hes local there. Thank you SO MUCH for ANY advice you can give. This is been extremely stressful, it shouldve been a simple hearing to force the landlord to perform and now she’s switched it up and put me in the position of possibly not being heard and being kicked out in a week! Thanks again, any advice you have would be greatly appreciated

  11. Maynard says:

    What do you do if the commissioner ignored all demands made and proceeded to rule in your case without jurisdiction? Here is a good scenario… Everyone knows driving on suspended is a misdemeanor case addressed to criminal court – now a traffic commissioner want to rule the case in a traffic court but the citations you signed is addressed to criminal court

    • Maynard,

      Great question. In CA, a Commissioner Can hear a misdemeanor case if the Defendant consents. Did you consent, or get consented?

      But then there is another trick that the courts pull. They treat a case that is supposed to be a misdemeanor, like vehicle code 14601.1(a), and they treat it like an infraction. The effect of this involuntary reduction in the charges is that you lose your right to: 1) a jury trial; and 2) a public defender if you qualify. And another advantage to the court – if you do not show up, as an infraction, they can use Veh Code 40503 to have a trial in absentia without you. Sound unfair? It is. But do you ever really want to demand a misdemeanor, and jail time exposure if the court gives you an infraction? No.

      Along these lines, I have handled Vehicle Code 12500(a) cases (Driving without a valid license) in at least a dozen CA Counties. Probably more like 30 counties. In some courtrooms, the judges will tell you it is only a misdemeanor, no jury trial right. In other courtrooms, the judge will tell you it is only a misdemeanor. In other courtrooms, the judge will tell you it is a misdemeanor, unless you have a valid drivers license. In some courtrooms, it is a correctable violation. In other courtrooms, it is not. In some courtrooms, you can talk the judge into what you need. If they would allow me to video in court, I would have a lot of example of the infamous “fleximeanor”.

  12. Tony says:

    Nice blog

    Tro or CCP 527.6 is the max period 25 days from an ex parte order? Are there any case sites a commissioner could use to wiggle out of a plain error by extending the time to 40 days?

    Commissioner XXXXX. Keep a weather eye out. This guy is an embarrassment to JDs everywhere. Resigned from the bench in 1997 and all I can find is a sealed bar file?

    • Tony,

      Is this Esparanto? I’m still a beginner. I have no idea what you are talking about.

      All I can really say about this one is that the State Bar and FBI have secret files on all of us. Dont confuse JDs with a licensed attorney. They are not the same thing. Permanent Judges are not licensed attorneys in CA. They become inactive when they become judges. Nearly all judges were Attorneys prior to becoming a judge. Temporary judges are usually practicing attorneys.

  13. Jeffrey says:

    Chris,

    Thanks for a wonderful blog! I have a good one for you: at arraignment in traffic court today, in front of a commissioner, I requested to have my arraignment entered by a magistrate (an elected judge) and refused to stipulate to have a commissioner do it. He denied my request, saying that I did not have that right in traffic infractions, and could not refuse to stipulate (i.e., he has the right to hear my case whether I want him to or not, even though he;s not an elected magistrate)! I could find nothing anywhere addressing this, only the usual material from the California Constitution (Article VI, paragraphs 21/22) regarding that the Commissioner gets his/her power from the stipulation of the “parties litigant”.

    I’m insisting on this so early in the proceedings because I think I’ll get a fairer hearing from an elected judge on various motions I wish to make, including a change of venue, so there’s method to my madness.

    If I’m wrong, I’d love to know; and if I’m right, how did I make this Commissioner respect the law (or at last learn it better)?

    BTW, when I go to trial and get him as the bench officer, what happens if I don;t stipulate then, too? THis court was not in Los Angeles City, (rather, an outlying community), and I know that traffic courts in Los Angeles (city) require you to initial a page stipulating to the Commissioner. if you do not, you have your case heard by a judge.

    Thoughts?

    Have a nice day, and thanks for doing a great job!

    Jeff

    • Jeffrey,

      We get this question a lot, and I have answered it a 1000x. I feel like screaming “you’re not listening to me!”, but then I remember this is not a class with the same people every day. It’s new people everyday.

      CA Commissioners need permission from the Defendant to hear trials and important hearings in cases where jail is a possible sentence (misdemeanors). They do not need permission to hear a case involving infractions.

      That Commissioner probably sees that problem every single day.

      If you were paying me by the hour – I’d look up the statute for you.

  14. Tom Nolan says:

    Great blog Chris! Thank you very much for all the help. My question is, can a traffic commisioner in California hold you in contempt for any reason?

    • Tom,

      Yes, any judge can start contempt charges against a person. Contempt of court is a violation against the court, not against a judge. A commission acts just as a judge in that regard.

      • Ron Austin says:

        Just wanted to point out that a Commissioner has no inherent authority to hold you in contempt unless you consent to him hearing your case, and even then it would have to be determined that there was an inherent agreement that he could hold you in contempt. Again, this only holds if YOU DO NOT AGREE to have your case heard by a commissioner. The bailiff can still eject you from the Courtroom. Just an FYI. Don’t get cocky and test it. This is from the judges benchguide itself on this matter.

        • Ron,

          A commissioner does not need permission of the defendant to hear infraction cases in CA. And a commissioner can refer a defendant to a sitting judge for a contempt hearing.

          I am personally aware that the official instruction for temp judges on how to handle an unruly defendant in at least one major CA court is to have the unruly defendant held by the bailiff until the end of the calendar, then refer to presiding judge for contempt hearing at the end of the day.

  15. Heath says:

    I’ve had two years of a judge in binding arbitration (family law) with a record of judgments which i sa nightmare of consistent bias against me. How can I get him recused? He lays down judgments several times a month — any time my daughter’s mother is moved to email him — and I can’t believe that my life with my daughter is going to be manipulated like this without recourse for years to come.

  16. Debbie says:

    Mr. Dort:

    I have a hearing pending in front of a Commissioner (as a Creditor and I feel she has been biased against my discovery efforts). ( I know this is about traffic court but I am desperate.)

    I am now being taken in front of this Commissioner by someone else (as a Debtor).

    Can I “Point Six” her for this second case even if I did not disqualify her for the first case (cuz how would I know BEFORE a case started she would become biased?).

    Is there ANY way to “Point Six” this Commissioner or get her REMOVED from my first case, since we have already been in proceedings with her?

    My life is very complicated!

    • Debbie,

      I can tell you are a person who likes to do things the hard way, because the easy way to spell “Point Six” is: “.6″.

      Anyway, I cannot tell where this is. Assuming CA, every new case brings a new opportunity to disqualify a judge. New first hearing on a new case? Should be able to do it. File the motion or form early, at least 10 days prior to the hearing is possible.

      But I cannot say for sure here, because I cant even tell what kind of court this is. There are no “creditors” of “debtors” in traffic or criminal court.

      Generally you cannot do it in a case after the first appearance or hearing.

  17. Beck7616 says:

    for the 170.6 section, if a magistrate has heard the case, already made a ruling i filed a new case (family law) because he first judgement was SEVERELY basis… now on the new case we had one hearing so far and it’s the same basis judgement that is putting my 2 year old in Harms way… (because of his father i’ve already spent a week in the hospital with my son because of negligence) can i still use the 170.6? or is there a better one to use… my attny has shot down my want of a new venture though the court. it’s been a huge head ache.

  18. Sandra says:

    If a judge heard your case in family court once and you believe they were unfair, can you disqualify them when you file an OSC for modification and hey are assigned again to your case?

  19. carol says:

    Up above there is a statement that a judgment may be void if a Judge was 170.6 and refused to recuse himself and rendered a judgment w/o jurisdiction do know of any case law on this? Thanks

    • Carol, I dont know where you saw that, but I sure as hell did not write it. It is not true.

      If a judge refuses to grant a .6 motion, the only option is an appeal. If you do not appeal, and the judge enters a judgment, you lose out.

      If you do not object, you may also waive the issue for appeal.

      So the correct thing to do when a .6 motion is denied is to file a Writ of Mandate (interlocutory appeal) to try to get the order denying the motion reversed prior to the start of trial.

      But actually, the best way to deal with the problem is to get a new attorney, and have that new entry into the case make the motion (assuming there is a good faith basis for the request).

      Judgements do not get “vacated” or cancelled automatically – even if the judge acts illegally or makes legal errors. The remedy can only be found in an appeal.

      Hoz’ that for a pile of good key words?

      • izraul says:

        “Judgements do not get “vacated” or cancelled automatically – even if the judge acts illegally or makes legal errors. The remedy can only be found in an appeal. ”

        “A judge is not the court”.; People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).

        A Judge (who is NOT the “Court”) not supporting or upholding the Judicial Machinery of the Court is guilty of “Fraud Upon the Court”.

        Judges and attorneys are officers of the Court. Any officer of the court who commits fraud during a proceeding, is engaged in “fraud upon the court.

        Under Federal law, when there is “fraud upon the Court”, the orders and judgments of that court are void or of no legal force or effect. ( “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”); The 7th Circuit.

        any attempt to commit “fraud upon the court” voids the entire proceeding. The People of the State of Illinois v. Fred E. Sterling

        Fraud includes the suppression of the truth, as well as the presentation of false information; Frederick Edward Strufe, Disciplinary case no. 93 SH 100

        Section 455(a) “requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned.” Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc v. Lord, 456 F.2d 532 (8th Cir. 1972)

        “Recusal under Section 455 is self -executing; a party need not file affidavits in support of recusal. the judge is obligated to recuse herself sua sponte. “Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989)

        further.. a judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. 70 Circuit Court of Appeals “Balistrieri, at 1202.

        “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be qualified.” Liteky v. U.S., 114 S.Ct.1147 1162 (1994)

        “It is important that the litigant not only actually receive justice, but that the litigant believe that he has received justice.” and.. The Supreme Court has repeatedly ruled and reaffirmed the principle “justice must satisfy the appearance of justice”, Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11,13 (1954)

        Judges do not have the discretion not to disqualify themselves. By law, they are bound to the follow the law. Should the judge not disqualify himself as required by law, then the judge has given an example of “appearance of partiality”.

        If a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce; The Supreme Court.

        Courts have ruled that judges have no immunity from their criminal acts. Since both treason and the interference with interstate commerce are criminal acts; no judge has immunity to engage in such acts. cited: Case 6:09-cv-01984

  20. Lisa says:

    I RECEIVED A SPEEDING TICKET 2006 DIDNT APEAR ON IT UNTIL 2009 WHEN CAUGHT IN A CHECK POINT. I WENT TO RIVERSIDE COURT WITH A LETTER FROM MY DOCTOR EXPLAINING THAT MY ILLNESS WAS THE REASON I HADNT APPEAR. THE CLERK TOLD ME I COULNT NOT PLEAD OR BE ARRAIGNED BEFORE A JUDGE AND THAT ALL I COULD DO WAS PAY THE TICKET AND FILL OUT A PETITION TO VACATE A CIVIL ASSESSMENT. I PAID THE TICKET FEW DAYS LATER THE CIVIL ASSESSMENT WAS DENED AND THE CHECK BOUNCED. CAN I STILL GET BACK IN COURT WTH MY LETTER AND BE GIVEN MY DUE PROCESS, ARRAIGNMENT AND PLEADING AND FIGHT THE TICKET BECAUSE I INITIALLY WANTED TO PLEAD NOT GUILTY AND PRESENT MY LETTER? WHAT ARE MY OPTIONS

    • Lisa, Lisa, Lisa.
      I dont like to discourage questions, especially if they are good faith efforts to get an answer. But I have to say – this is a nominee for wacky question of the year. Wacky questions make good reading though – so I will try to make a real answer.

      Summary: You wrote a bad check to the court? Fold.

      By writing a check you actually ended the case. By allowing the check to bounce, you committed a new crime. And yes, that was a crime. Ouch!.

      And I have to say – just use your brain here. Image for a moment if you really did somehow get into court and somehow talked the judge into ignoring the bounced check issue. And you somehow got the case reopended (which you will never be able to do) – and you showed the judge your letter from the judge – and then the judge would ask you:

      “Why didnt you com ein on the next day?” Or the Next day? or the day after that? Or the next day?

      Wake up. You never had a defense. You need to resolve the bounced check issue today – before they end it to the district attorneys office for prosecution. And by the way, the DA’s office is probably in the same building. They dont even have to mail it to the prosecutor.

      You bounced a check to the court and you are worried about a civil assessment? Wake up. Fold. End the entire problem ASAP.

  21. karla says:

    I’M GOING TROUGH THE SAME CASE MY EX WHO MY SON DAD USED TO ALWAYS ABUSE ME AND MY CHILD AND HIT US HURT US UNTIL THE DAY HE GOT ARRESTED FOR DOMESTIC VIOLENCE AND CHILD ENDANGERMENT AND I HAD FULL CUSTODY OF MY SON CAUSE OF THAT THEN HE BAILED OUT WENT TO COURT TO FIGHT FOR THOSE CHARGES TO BE DROP WI CH THEY’RE WERE AND HAD HIS LAWYER TO BRAIN WASH ME AND NOT HAD A RESTRAINING ORDER FOR 7 YEARS WHICH I THOUGH THAT PUTTING MY SON AWAY FROM HIS DAD FOR 7 SEVEN YEARS WAS GONNA AFFECT MY SON BUT AND I AGREE TO GIVE HIM VISITATION ON WEEKEND’S EVERY OTHER WEEKEND AND NOW HE HAS TURN THIS ALL OVER ME MAKING LOOK LIKE THE ABUSER WHEN I’M VICTIM AND SO THERE WAS AN ANONYMOUS CALL TO CPS TO REPORT THAT MY SONS DAD HAD MY SON ASKING FOR FOOD TO THE NEIGHBORS AND THAT HE HAD PUT OUR SON TO BE PRESENT WHEN HE WAS HAVING INTERCOURSE SEX WITH ANOTHER PERSON THE SAME SEX AND HAVE OUR SON TO ENJOY WITH THEM OH WELL THIS TURN AGAINST ME TO THE POINT THAT THE RESTRAINING ORDER ITS ISSUE FOR 5 YEARS WITHOUT ANY VISITATION RIGHTS OR TO BE ABLE UNLESS TO TALK TO MY SON NOW ITS BEEN SINCE JANUARY 2 OF 2011 I HAVEN’T SEEN OR TALK TO MY SON AT ALL I DINT HAVE ANY CLUE ABOUT HIS LIVING SITUATION OR NOTHING I’M ALONE IN THIS COUNTRY ALL MY FAMILY ARE IN MEXICO AND I JUST LOST MY JOB DUE TO THIS MATTER MY WHOLE WORLD HAS CRASHED DOWN SINCE MY SON WAS TAKING APART FROM ARMS AND HAVE NO POINT THAT MAKES ME GO DAY BY DAY IN LIFE ITS HAS BEEN SO HARD THE JUDGE SEND ME TO A 52 WEEKS BATTERED CLASSES AND 16 WEEKS ANGER MANAGEMENT THAT I HAVEN’T ATTEND CAUSE NY FINANCIAL SITUATION I PRAY THE LORD TO HEAR ME OUT AND HAVE SOMEONE WHO CAN HELP ANY WAY TO SOLVE THIS ISSUE THAT ITS A NIGHTMARE TO ME AND MY 4 YEAR OLD SON THANKS

    • Karla, wow. I’m sorry that happened to you. But I really do not understand what you are talking about. What is it you need help with? It never really came out in this rant.

      Here is my advice: Re evaluate how you describe what you need help with. Way too much of your story does not matter to whatever the problem is, and this lack of focus makes it impossible to understand you.

  22. irishgrl says:

    Hello, I want to add a comment, and ask a question. first, the comment: The CA Rules of Court also discuss this issue. I am in a Fam law case, I used to have an attorney, but now do not. My attorney didnt object to the commissioner, so my consent was deemed. The commissioner heard the case a few times. My attorney later substituted out, and I found a rule that says a commissioner or pro tem may not preside over a case if one litigant is self-represented. I tried to bring the matter up to the commissioner, but he basically shut me out. He then circulated a blank stipulation which I refused to sign. I was assigned the commissioner for trial, so I requested a new trial date and judge, and withdrew any ‘deemed’ stipulation. I was denied.

    My question is, does the loss of an attorney mid-way thru the matter constitute grounds enough to assert the protection of the CA Rule of Ct? It certainly feels that way to me….you prob wont see this in time to help me, my trial is tomorrow :(
    but I am still going to file an objection to any proposed recommendation, and a complaint to the Presiding Judge, AND file a complaint with the Commission on Judicial Performance. PS: the link is below…
    (http://www.courts.ca.gov/rules.htm)

    • Irishgrl, Woohoo! I am actually going to answer your question for free with one day’s notice for your trial tomorrow! AND, and, and http://www.TrafficCourtBlog.com is now Iphone friendly, so you can actually read my answer WHILE YOUR ARE IN COURT! Ha. Go stick that in your pipe and smoke it.

      Anyway. You need a new attorney. You need to ask the judge for more time to find an attorney. You need to tell the judge you are not able to competently represent yourself. Tell the judge that you have a legitimate basis for a 170.6 motion that your prior attorney refused to make for you. Tell the judge you want to mark the record to clearly show that you are not prepared to go forward and you need time to find a new lawyer, because the other one bailed on you.

      A different Attorney can make the 170.6 disqualification for you when they come into the case. As long as they do it immediately.

  23. Robert says:

    “in order to disqualify a judge under 170.6, generally, you must make the motion at or before the very first time you see the judge”. Does this mean if a judge has heard your case in the past and you think they were biased, you can’t file the 170.6 to discqualify them? Not even one time and that one case?

  24. Johanna Lang says:

    I am appealing a traffic trial conviction myself (pro per, as I learned ) and found your blog as I am scouring the internet for helpful information. Your blog is very informative. Thanks for sharing your knowledge.

    • Johanna, thank you for the comment. Avoid this giant, common mistake: if you are appealing, you have to challenge an error of law. You cannot challenge the judge’s factual findings on appeal. You cannot challenge witness testimony in an appeal. Errors of law only – like “Judge failed to admit my photo evidence.”

  25. Lisa Valdez says:

    Frank,
    Your case wouldn’t happen to be in Lake County, would it? If so, I know many people who have had difficulty with that particular Commissioner. If it is any consolation, I have just filed a 24 page complaint, citing examples to the record in which I believe he violated numerous judicial canons. I will also be sending this complaint to the State Bar, as he made rulings in my case as a Judge Pro Tem, without my stipulation. Read the Judicial Canons and some of the discipline summaries on the CJP website, and if you see anything that he has done that is in that vein, please write a complaint letter. Complaints must first be sent to the Presiding Judge in that Court, and then to the CJP or State Bar, from my understanding of it.

  26. Bruce Bauer says:

    Hi Chris,
    I haven’t spoken to you since the end of the year re: my speeding ticket trial where the commissioner would not step down after I presented him with the 170.6 motion.

    Well, I’ve been embarked on the Appeals route.
    I’m up to the point where I have approx. 25 days left to file my first brief.

    I’ve researched the www quite abit and what I find seems to be a major discouragement to anyone wanting to go past this point.

    eg. type size and font, spacing, etc. not to mention case law.

    Does mine have to be that complicated, really?

    I just want to show that he should have referred this case to another judge and he didn’t, thus endangering my chances of a fair trial.

    Any recommendations?

    Thanks,
    Bruce

    • Bruce, your comment came through fine. This is a common problem. Drafting an Appellant’s opening brief for traffic court is a little complicated. The rules are detailed, but the truth is it is a standard legal format that you are not used to. One of the benefits of hiring an attorney is that an attorney has these forms already to use as templates on a computer, so that we do not have to go through all of the frustration. If you want to send me your deadline to: cdort@dortlaw.com, I will try to get you a form. I will try to create an appellate brief template that I will sell for about $15. I don’t have one to send you now, but will try to prepare one for public use prior to your deadline. But I can tell you this – if I never get back to you, just try to get it as close as you can. Use 12 pt courier font, double space. Make sure the case number is on the front cover with the case title: “[Your Name], Appellant vs. People of the State of CA, Respondent. If you get close, they will accept it, probably. As for the case law, learning that is what I paid more than $100,000 to go to law school for. There is no EZ solution to writing a brief with legal points and authority if you do not have the training. All I can say is go to the law library to get authority to prove that you are right. Look for CA Supreme Court cases. Go to the local law library (its free). Get a copy of the CA Vehicle Code (annotated) and check the index. Once you find the statute that applies to the problem, there will be notes on the cases that deal with that statute. Ask the law librarian for help.

  27. Patrick says:

    I was cited for cvc 22350 (unsafe speed). I entered a not guilty plea and paid the bail amount because the court required me to.
    I was unable to attend the trial and had assumed that I would be found guilty of speeding and forfeit the bail amount. I wish it was that simple. Approximately 3 days after the date of the trial I received a notice from the court that the judge slapped a reckless driving charge on top of the ticket and suspended my license for 30 days. Can they do that? When did the judge become prosecutor? I had no prior notice of the greater charge that I was convicted of so I had to time to prepare a defense. If I had, you bet I would have brought an attorney and attended the trial.
    Now the case is closed and I have no license. Can I request a new trial? Or should I appeal? Can I get a restricted license in the meantime? My work requires that I travel a lot. I have upcoming site visits and meeting at military bases that I must drive to and do not know how I will be able to attend. Advice?

    • Patrick, well, there is something strange here. I think you may have things a little confused. First off – the court does not suspend your drivers license. Only the DMV can do that. So it was the DMV that suspended your license, not the court. The DMV may have taken action on the conviction after you missed the trial and lost. The action may have been due to the “negligent driver points” caused by the violation. Depending on how fast you were convicted of going, the DMV can add 1 or 2 points to your record, and if you had other points, that probably triggered the suspension. A judge is not allowed to add charges to a case. But if they held the trial without you, and the only testimony was that you were exceeding the speed limit by a lot, the DMV would use that conviction to add points to your record. People commonly go to court, plead not guilty and demand a trial and then dont show up. It’s ridiculous to me. Missing a court date is never a good idea. You should not be surprised that if you demanded a trial and forced the court to waste the time and resources involved in subpeonaing the officer, having the hearing, etc. that it turned out bad for you. Of course it turned out bad! Duh./ The judge took the officer’s testimony and probably gave you the max speed the evidence showed, and then laughed to himself as he called the next case. I do not know of anyway to get a restricted drivers license on these facts. But you can call the DMV driver safety office and ask for a “Negligent driver” hearing to try to challenge the points you accumulated. The bad news is that your chance to challenge the case was at the trial, and you missed that opportunity. Here’s some advice for others thinking of pleading not guilty when you know the cop is going to say you are guilty: Just Request Traffic School and pay the fine. In this case, traffic school would have saved your drivers license. One more thing – dont get caught driving with a suspended drivers license. That is a good way to give the government your car and find your way to jail and a $1400 fine – not to mention 2 more points on your record (same as a DUI conviction)

  28. Lomtevas says:

    Claudia Silbar will not recuse herself based upon a 170.6 motion. She will deny the motion and then seal the motion and order so as to escape review.

    The appellate division will affirm her denial.

  29. Frank Brock says:

    Hello: As I have been led to believe, existing California laws which pertain to Small Claims cases don’t allow the Plaintiff to appeal a Judgment where a “Commissioner” has ruled against the Plaintiff by checking the box marked, “Defendant does not owe Plaintiff any money on Plaintiff’s claim”, however, is there such a thing in Small Claims Court as a Motion for Reconsideration, as this moron Commissioner either doesn’t know how to add or is biased against me, as there wasn’t even the courtesy of a written ruling from him as to how he came to the unbelievable conclusions he did!
    This matter pertains to a lawsuit I brought against a Defendant landlord of a house I had rented for only five weeks before the landlord had me served with a 30 Day Notice to Quit for no apparent reason.
    Then to add insult to injury, this dirtbag landlord kept almost $900.00 of my $1,500.00 Security deposit, alleging that he had to have the house cleaned and make repairs to it after my tenancy, even though I had only lived there about 6 weeks and the house was spotless when I vacated and I hadn’t even hung any pictures on the wall yet!
    This Court is in a small Northern California jurisdiction and this particular Commissioner has been retired as a Judge in a neighboring county and now sits as a Commissioner in this county. Ironically enough, he is also about $34,000.00 in Child Support/Alimony arrears to his ex-wife but, because he’s part of the “good old boy” school up here, nothing is being done about it.
    Anyway, the reason for my questions is that I’d like to file a Motion for Reconsideration about my “zero, get nothing” Judgment in a timely manner but along with the filing of a 170.6 Motion so that this flake isn’t allowed to hear it again so, do any of you have any sense of just how I should make this one fly right?
    Thanks much for whatever advise you can give me on this, as I’ve got to have this stuff in to the court this coming Monday, January 25, 2010!

    • Frank, we don’t really deal with small claims issues here. But I can tell you this, if you lost a California small claims court case, you can definitely appeal if you feel a mistake of law was made. If someone told you that you cannot appeal, they were wrong. If you do not know how to do it yourself, I would recommend that you hire a licensed attorney to do the work. I wish you luck.

      • Ron Austin says:

        Dude, I appreciate what you are trying to do here, giving people free advice, but are you really a lawyer???? You cannot appeal a small claims judgement if you are the plaintiff and you lose. You are basically agreeing to that when you choose to use the small claims court. Case law available on request. Or that info is available in the first few lines of any County Small Claims website. Sorry to call you out so many times, but your advice is a little flippant. I’m sure you will now delete all my comments.

        • Ron,

          I want to say you are an idiot but I will not. You can in fact appeal a small claims judgment in California.

          In fact, there is a Mandatory Judicial Council Form for a Notice of Appeal of a Small Claims Decision. It is Judicial Council Form #SC-140.

          You have obviously never seen that form. But I found it in 8 seconds. BECAUSE I HAVE USED IT BEFORE!

          I used to be the guy writing the appeal decision memos to the panel of 3 judges in the Superior Court Appellate department that handles the first level of appeal. So I have personal knowledge of not only the fact that you can appeal, but also on the exact process of how those appeal decisions are made.

          Thus, as the king of this here blogtopia, I declare you wrong. And yes, I will delete the other comments. Unless there is something funny in there.

          “Your mother was a hampster and your father smelt of elderberries. Now go away, or I shall taunt you another time!”

        • Ron,

          It just dawned on me that there just might be a court out there in CA illegally forcing people to waive their right to appeal a small claims judgment. It’s totally possible they are lying to people about their right to appeal, and you are a victim – not just some dude without a law license acting like they have one.

          If this is the case, if there really is a court screwing people with a forced waiver of appeal rights – let us know which county!!!!!! I may be willing to help some people start a legit small claims appeal for free if they have been screwed by an illegal, involuntary waiver of appeal rights.

  30. Vivian Yu says:

    A Note to Chris Dort and Phil Erkenbrake:

    Chris – thaks for this blog. Very informative. You are great.

    Phil – Is your friend’s judge in divorce case Judge Claudia Silbar? Also for your friend’s husband not paying child support, she can call Child Support Services and open an case there without having to file a motion with the court.

    • Vivian, thank you for your post. Child support issues come up a lot on this blog because they do lead to drivers license suspensions. But family law is a whole different world than criminal. If you are an attorney or have special experience in the field, and want to promote your work, I’d be happy to publish your article(s) on child support suspension problems. Email to cdort@dortlaw.com. Thanks again.

  31. Question- I am helping a friend with her divorce. The judge has been very rude during the trial.. She has post trial proceedings that she wants to do such as a motion for contempt for the husband failing to pay child support. Because of the way my friend was treated by the Judge during the trial, she did not want her hearing the motion for contempt. So after the trial, but before the Judgment was entered, she filed a 170.6 motion. the judge denied it as untimely, but she had not even filed the motion or reserved the date yet. My thinking is that the Judge thought the 170.6 motion was being filed for the trial. So now my friend is ready to file the motion for contempt.What should she do? I was thinking of filing a request to take Judicial Notice of 170.6 and the fact that one had previously been filed and denied. While denied for the purpose of trial, ok but not for future motions. What is your suggestion.

    • Phil, Unfortunately, I don’t know anything about family law. After a local divorce attorney in my area got his hands blown off by a mail bomb, I intentionally skipped it in law school, and prayed that it would not be on the bar exam – and it wasn’t!! Woo Hoo!. So I cannot help – except to say in order to disqualify a judge under 170.6, generally, you must make the motion at or before the very first time you see the judge.

  32. Bruce Bauer says:

    Hi Chris,
    Can I file a Writ of Mandate citing the commissioner’s denial of my motion of ccp170.6, even after the conviction?

    I’ve seen some cases where it’s stated that challenge to a denial of that motion is by writ and not appeal.

    Bruce Bauer

    • Writs are known as “interlocutory appeals” which means they are appeals that take place before there is a final judgment. They are used to challenge Orders a court makes prior to final judgment, such as the denial of a motion to suppress evidence prior to trial. But if there is a conviction – there has already been a final judgment and a writ is not the correct medium of appeal. All errors are reviewed at once in a full blown appeal. If a judge denies a motion to be disqualified, an attorney would normally appeal that by writ and stop the trial process. But in a traffic court case, the denial and the trial all happen on the same day – so there is no time for a writ.

  33. Bruce Bauer says:

    Hi Chris,
    Thanks for the informative reply.

    Starting at the end, when the commissioner tried to hurry through the explanations of the errors on the face of the ticket, I told him I was building a foundation and he said what was that? I told him how could anything else he was attesting to as correct ie. the laser reading and target vehicle, not be suspect as he’d just made 4 errors writing the ticket 10 minutes after his laser reading.

    The commissioner said it had nothing to do with the fact or not of speeding. He asked me how fast I was going and I said 35 or 40.

    Later he accused me of not knowing what speed I was travelling at.

    I told him I’d already answered that question and I’m driving 45 years. I know when I’m speeding or not.

    He just believed anything the officer had said. His word against mine?? No. His word.

    As I read someone post earlier this morning.
    “Guilty until proven guilty”.

    I think I should go for the appeal re: him refusing to refer me to another judge. It turned out that what I suspected, having sat in his courtroom a couple of days last week to see how he works, was correct. He is prejudiced toward defendants.

    I think I would have won this case in front of an elected judge. I guess there’s no re-trial conditions for this.

    Bruce Bauer

  34. Bruce Bauer says:

    Hi Chris,

    After reading your blog last night, I decided this would be a good way to get in front of a judge rather than a commissioner for my speeding ticket trial.

    I went in today and passed the motion to the bailiff who passed it to the commissioner. He looked it over and said this would have to be referred to the main court building, and Mr. Bauer, have a seat.

    After the next trial was over, he called me back up and said that my motion required a 10 day filing and so he was denying it.

    He conducted the trial and steamrolled me as I knew he would.

    You might want to include in your blog that “timely” is obviously at his discretion.

    Why would a commissioner deny such a request, knowing you felt you couldn’t receive a fair trial with him?

    Would this be worth appealing?

    Also, when I went to the clerk to ask about the appeal process and get a copy of the tape or transcript, she said there weren’t any.

    So, all the BS that took place in there is gone forever. What a circus.

    I asked for laser equipment logs, arrest logs and he said you should have supoenaed them. The officer doesn’t have to present them.

    There were also four errors on the face of the ticket. So what, he insinuated.

    Regards,
    Bruce Bauer

    • Bruce, Thank you for the great comment. This is one example of a case where an attorney would have done things differently.

      I can clarify the issue of when a motion to disqualify a judge works – generally you have to make the motion at the first hearing in front of a objectionable Commissioner or Judge. If you have no way of knowing who the judge or commissioner was going to be until the date of trial, they screwed you. How can you know if the Commissioner is biased 10 days before the hearing if they don’t tell you who the hearing officer will be until that morning? If you do not know, you cannot object early. You can appeal on this issue if you got screwed.

      To do so in CA, you have to file a notice of appeal right away, using the judicial counsel form. It may not be worth the effort, (because you can just pay the fine and end it), but it is a real issue to appeal on.

      Here is the link to official instructions on how to appeal a traffic court trial

      Here is the link to the Notice of Traffic Court Appeal Form that you need to file first.

      Regarding the other issues – to get a motion filed you must first give it to the court clerk (usually outside the courtroom but there is a courtroom clerk that can take it as well). The court clerk “file Stamps” the motion and puts it in the file. Then, once that stamp is on the document, it is in the record for an appeal. Once in the file, there must be a decision on it.

      When filing a motion, always bring 3 copies: 1) for the court clerk; 2) your copy to be file stamped by clerk; and 3) copy for the prosecutor if there is one.

      The proper way to use laser equipment logs and training records or maintenance records is to object to the laser machine readings as hearsay when the officer tries to introduce them, and argue that there is no evidence in the record to qualify the evidence under an exception to the hearsay rule.

      If you do not make a hearsay objection, you waive it, and the judge can use the evidence.

      You can subpoena those records in advance, but I usually have had better luck getting evidence excluded when those records are not there.

      As for transcripts, the court is not required to record a traffic court trial. I always make a verbal motion before a court trial that the proceedings be recorded so a transcript is available.

      As for arrest records – you could subpoena those prior to trial – but I doubt you would ever get them for a traffic court trial. The district attorney would be assigned to object on the legal grounds that they were not relevant to your case, and you would need some serious argument for why you needed them in your case.

      You can not just try to prove that you were not speeding because the cops arrest lots of people. It’s just not relevant to the issue of whether or not you were speeding at that time. No judge allow that evidence. You needed evidence that you were not speeding to win, not arrest records.

      Anyway, the correct way to demand police arrest or personal employee records is to make a “Pitches” motion first and get permission from the judge who reviews the records alone for anything that might be relevant to your incident. Even if you won the motion, you would not get to see detailed records before the judge reviewed them in advance.

      Such records are usually only available in detail on cases where there are allegations of police brutality or false arrest. Here, you were not arrested – so it does not matter at all.

      So – trying not to be rude – I’d say you were heading down the wrong path there. No appealable issue on arrest records as evidence.

      As for the errors on the face of the ticket – there is a doctrine called “substantial compliance” which basically means perfection is not required if the main elements that allow processing are present. The judge was telling you there was substantial compliance with the requirements.

      Errors alone are not a reason to dismiss a ticket (although may people mistakenly believe that). But the errors are evidence of sloppy work by the officer that may carry over to his skill and attention to detail when measuring your speed. Somehow you have to use that sort of evidence to demonstrate that you were not speeding.

      If you pointed out 3 errors and the judge insinuated “so what?”, your answer should have been a heroic closing statement:

      “these errors – this sloppiness – demonstrates that this officer clearly was distracted, he was not paying attention to what he was doing, he was not doing his job correctly – and this in combination with the other evidence that he did not measure my speed accurately, these errors show that there is doubt that I did in fact break the law as this error prone officer claims. Because of this doubt, and because of the evidence i presented that I was not speeding, this court should rule ‘not guilty”!’ on these violations and close this case.”

  35. Elias Amkie says:

    This is very good 170.6 for state court , do you know what will work on federal court to disqualify a judge?

    • Elias, There is a similar process, and similar form, but that question is outside the scope of this blog. Every federal court has a public law library with forms, and you can get the form there. You can make the motion verbally, and the court has to take note. THey may make you return with the form, but you can protect yourself by making a verbal request.

  36. Bret says:

    The pdf link does not work, can you please email it to me?

    I am trying to file one of these today

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