From: rjc@devo.unify.com (Ronald Cole)
Subject: Re: Berkeley Traffic Court
Organization: Unify Corporation, Sacramento, California
	<1992Oct2.184946.4076@tcsi.com>
Distribution: ba
Date: 5 Oct 92 23:04:29

In article <1992Oct2.184946.4076@tcsi.com> gwu@nujoizey.tcs.com (George Wu) writes:
	I thought there might be grounds for an appeal because the judge
   acted as prosecution.

The DA would probably bring PEOPLE v. CARLUCCI, Sup., 152 Cal.Rptr.
439, to the attention of the appellate court.  (a good reason to
challenge jurisdiction: try to get the judge to enter evidence on the
record!)

        However, it seems quite difficult to win such a
   case.  For one, I did not ask for a court reporter to record the
   proceedings.

Can you point me to something that says that you waive your rights to
have the proceedings recorded if you fail to ask for it?  (California
Rules of Court, rules 183 and 184 lead me to believe that you can't.
Notice the limitations on the use of a settled statement.  It ain't no
substitute for the real thang!)

Article VI, section 1 of the California Constitution clearly states:

    "The judicial power of this State is vested in the Supreme Court,
    courts of appeal, superior courts, municipal courts, and justice
    courts.  All courts are courts of record."  [As amended November
    8, 1988.  Operative January 1, 1990]


                           COMMENTARY

     This writer concludes, from the definitions below, that a 
court of record is a court which must meet the following 
criteria:

     1.  keeps a record of the proceedings
     2.  the tribunal is independant of the magistrate (judge)
     3.  proceeding according to the common law
     4.  power to fine or imprison for contempt
     5.  generally has a seal

     Note that a judge is a magistrate and is not the tribunal.  
The tribunal is either the sovereign himself, or a fully 
empowered jury (not paid by the government) 
-----------------------------------------------------------------

            Black's Law Dictionary, 4th Ed., 425, 426

COURT.  ...

                        INTERNATIONAL LAW

     The person and suite of the sovereign; the place where the 
sovereign sojourns with his regal retinue, wherever that may be. 
....

                         CLASSIFICATION

     Courts may be classified and divided according to several 
methods, the following being the more usual:

     COURTS OF RECORD and COURTS NOT OF RECORD.  The former being 
those whose acts and judicial proceedings are enrolled, or 
recorded, for a perpetual memory and testimony, and which have 
power to fine or imprison for contempt.  Error lies to their 
judgments, and they generally possess a seal.  Courts not of 
record are those of inferior dignity, which have no power to fine 
or imprison, and in which the proceedings are not enrolled or 
recorded.  3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas 
Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; 
Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. 
Davis, 96 Ohio St. 205, 117 N.E. 229, 231.

     A "court of record" is a judicial tribunal having attributes 
and exercising functions independently of the person of the 
magistrate designated generally to hold it, and proceeding 
according to the course of common law, its acts and proceedings 
being enrolled for a perpetual memorial.  Jones v. Jones, 188 
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 
171, per Shaw, C.J.  See, also, Ledwith v. Rosalsky, 244 N.Y. 
406, 155 N.E. 688, 689.

....

-----------------------------------------------------------------

         Webster's New Practical Dictionary, 386 (1953)
             G. & C. Merriam Co., Springfield, Mass.

MAGISTRATE

     A person holding official power in a government; as: a The 
official of highest rank in a government (chief, or first, 
magistrate).  b An official of a class having summary, often 
criminal, jurisdiction.

-----------------------------------------------------------------

            Black's Law Dictionary, 4th Ed., 1103

MAGISTRATE

     Person clothed with power as a public civil officer.  State 
ex rel. Miller v. McLeod, 142 Fla. 254, 194 So. 628, 630.

     A public officer belonging to the civil organization of the 
state, and invested with powers and functions which may be either 
judicial, legislative, or executive.  But the term is commonly 
used in a narrower sense, designating, in England, a person 
intrusted with the commission of the peace, and, in America, one 
of the class of inferior judicial officers, such as justices of 
the peace and police justices.  Martin v. State, 32 Ark. 124; Ex 
parte White, 15 Nev. 146, 37 Am.Rep. 466; State v. Allen, 83 Fla. 
655, 92 So. 155, 156; Merritt v. Merritt, 193 Iowa 899, 188 N.W. 
32, 34.
....
     The word "magistrate" does not necessarily imply an officer 
exercising any judicial functions, and might very well be held to 
embrace notaries and commissioners of deeds.  Schultz v. 
Merchants' Ins. Co., 57 Mo. 336.

-----------------------------------------------------------------

            Black's Law Dictionary, 4th Ed., 1602, 1603

SUIT

                         Old English Law

     The witnesses or followers of the plaintiff.  3 Bl. Comm. 
295.  See Secta.

                           Modern Law

     A generic term, of comprehensive signification, and applies 
to any proceeding by one person or persons against another or 
others in a court of justice in which the plaintiff pursues, in 
such court, the remedy which the law affords him for the redress 
of an injury or the enforcement of a right, whether at law or in 
equity.  See Kohl v. U.S., 91 U.S. 375, 23 L.Ed. 449; Weston v. 
Charleston, 2 Pet. 464, 7 L.Ed. 481; Syracuse Plaster Co. v. 
Agostini Bros. Bldg. Corporation, 169 Misc. 564 7 N.Y.S.2d 897.

-----------------------------------------------------------------

              Black's Law Dictionary, 4th Ed., 1677

TRIBUNAL

     The seat of a judge; the place where he administers justice.  
The whole body of judges who compose a jurisdiction; a judicial 
court; the jurisdiction which the judges exercise.  See Foster v. 
Worcester, 16 Pick. (Mass.) 81.


-----------------------------------------------------------------

         Webster's New Practical Dictionary, 707 (1953)
             G. & C. Merriam Co., Springfield, Mass.

TRIBUNE

     1.  In ancient Rome, a magistrate whose special function was 
to protect the interests of plebeian citizens from the patricians.

     2.  Any defender of the people.

--
Ronald Cole           +----------------------+  internet: rjc@unify.com
Software Engineer II  | This space for rent. |  uucp:     uunet!unify!rjc
Unify Corporation     +----------------------+  voice:    +1 916 928 6238
          "THE BILL OF RIGHTS --- Void where prohibited by law"
Newsgroups: ca.driving