What to do about the clerk transcript saying the court had no administrative record in possession after designation of record to COA is made, they gives part back to respondent and I am given two separate stories?
Seriously I have discovered that I was given two notices in which the respondent is stating that the administrative record had been lodged/filed conditionally under seal for a mandamus review petition. There was the large administrative record of like a few 100 pages and the transcript of the agency hearing which was only made by subpoena on the hearing officer's personal recording which was sent to the respondent.
Now the designation listed both of these records and when the clerks transcript and reporters transcript are sent to the COA they say they did not have the administrative record.
Respondent did not have it sent back. Then a few days later the respondent tells me the clerk found the records and the judge had them (the decision was in Feb and it was a summary denial, why would he have the records?!) she told me the clerk delivered them to her officer.
Odd, the clerk should have sent it to the COA now that she found it.
Next day on the superior courts register on my case it note basically that Respondent picked up the subpoenaed records lodged on the date in the A.M.
What?!!! I head to the superior court clerks office and they can't tell me what exactly was returned but it was not an administrative record, and that there had been an application to file a record under seal but not order signed!
I am beginning to doubt severly that the judge likely only had the transcript before him and not the record!
Sure respondent is telling me they are going to file the administrative record and transcript to COA following CRC 8.123 but that's not the issue!! If the judge never had the full admin record in a CCP 1094.5 case and I was presented notices that it had been, Well it could just be an odd event; or someone is Lying!
Oh did I mention that when the agency prepared the certified record it has no index or are the documents in any order whatsoever??!! Yeah this messed as I am the in pro per one and have been following all the rules properly and it seems like the clerk nor the respondent's attorney don't have to!
The clerk at the COA couldn't even instruct me on what I should research! The administrative record if the superior court says it was never there, the only way I could get it in for review is by requesting judicial notice? I just want a direct answer from clerk and respondent because this is BS!
any suggestion on how to approach this mess is truly appreciated!
1 Answer from Attorneys
I don't think I understand what your question is. The clerk and opposing counsel cannot give you legal advice. The clerk can tell you what records were certified to the Court of Appeal, so you need to know what records were sent. You can request augmentation of the record to have additional records sent to the Court of Appeal but they cannot send records that were not before the Superior Court. If the Superior Court clerk does not forward the records you can advise the Court of Appeal that the clerk has failed to forward records requested and later discovered. Good luck.