How to handle appellate court's refusal to rule on a motion?

[guerneca]

What is the name of your state (only U.S. law)? CA

I'm going to keep this short. Happy to provide more details if anyone wants that.

I'm appealing a traffic court verdict. I filed two motions in the appellate division in December 2010. It is almost May 2011 now and they still have not ruled on either motion. They have scheduled my appeal for final oral argument on May 20, so it seems they are going to ignore the motions.

What can I do here?

 

[CdwJava]

They have scheduled my appeal for final oral argument on May 20, so it seems they are going to ignore the motions.

What can I do here?

You can attend the hearing on May 20th.

The time delay likely has nothing to do with the court's thoughts on your motion and everything to do with workload. Attend the hearing and make your arguments.

Court matters can take time. In my county we have a DUI matter that has taken some 21 months to finally get scheduled for a jury trial. Some things take time - even if they are small things.

 

[Captain Picard]

And what motions were they? Likely they don't have to rule on frivolous motions.

The only thing I see that could be filed is an extension to gather the record & for a writ of habeas corpus; likely two things not needed in your case.

I would guess that you filed motions that are not allowed.

Go to your hearing.

 

[guerneca]

Two points in response:

1. The normal time frame for this particular court to rule on a motion is 7 to 10 days (according to the clerk). They've ruled on a couple of other motions I've filed for the same case within 10 days: motion for extension and motion to augment the record.
So, the 5 month delay is highly unusual. The court clerk has said the same thing.

2. My motions are not frivolous. They were drafted based on examples in the book "Fight your Ticket and Win" by attorney David Brown. Specifically, the motions were:
a) Motion to reconsider motion to augment the settled statement on appeal (they denied the original motion because they misinterpreted the sequence of events leading up the preparation of the settled statement). In the alternative, I asked the court to issue a stay in the proceedings for me to seek writ review by the district court of appeal.

b) Motion for extension of time (the extension request is moot now as the court took too long - so I went ahead and filed my opening brief) and request to file supplemental brief once the record on appeal is corrected.

I will certainly attend the hearing. What's unclear is what to do with the motions because they are vital to the appeal. It really makes no sense to decide the appeal without an adequate record of the trial court proceedings.

The whole point of the motions was to correct the record on appeal so the appeal can be properly considered. And to allow time to seek writ review if the court decides not to amend the record on appeal by denying the motion. Appeals typically get decided on the same day as oral argument in this court, so I'm afraid it won't leave me any time to have these motions enforced if I wait until that date.

 

[Captain Picard]

Well then, go to your hearing & object to it moving forward until the motions get ruled upon. And if denied & they wish to move forward that day, then move on to your hearing.

Not to much you can do .. you cannot force a court to do anything in this instance.

 

[guerneca]

Picard,
Good suggestion. I suppose the only way to "force" a court to do something is to petition the higher court for a writ of mandate. I'm wondering if I should do that now i.e. before the hearing.

There is a technicality in play here. If the court decides to deny the motions on the day of the hearing and wants to proceed with the appeal on that day, I lose the chance to seek a writ from the higher court. At that point, they could deny my appeal and the only way to seek relief from the higher court is via appeal, not writ.

In other words, by not allowing any time between the motion and the final appeal decision, they've removed my ability to seek writ review of the motions.

This is a big deal because the higher court rarely takes an appeal for a traffic case. Because the second level of appeal is discretionary. However, writ review is not discretionary. They must consider the writ (even though most writs are denied).

It's not clear to me whether the appellate court is doing this intentionally being fully aware of the above facts. I've inquired about my motions over 20 times in the last 5 months and each time the clerk informs me that "they're working on it" and he has no idea when a decision will be reached.

 

[demurringdude]

You can petition for a writ right away. If the other court already gave you a written ruling on your motion to augment the settled statement, and that ruling is clearly in error, and the error is going to cause you some harm that can't be undone by simply appealing, then you don't need to keep arguing with that other court about it, you can just go for a writ.

As you aware, the statistics do not look good for writs. But don't let that put you off if you have a clear error that can't be corrected any other way. Writ petitions are taken seriously, even though most are denied.

Also be aware that a writ petition is quite a lot of clerical work.