Legal Question in Appeals and Writs in California
Procedural Question
My attorney filed a motion to quash 3 search warrants last year, and it was heard by a magistrate, (it was the same magistrate who signed the warrants) who made a ruling (that ignored McGrew and Kow) We appealed his decision to the 9th, and the 9th issued a staement that said they did not have jurisdiction because a magistrate cannot issue a final order without consent, which was not given in out case. We voluntarily dismissed the appeal, and filed our motions again, this time asking for an article III district judge. We had a status conference in March of this year, and were informed that our motions are in front of the same magistrate. My attorney objected, the magistrate took it under submission. Out motions to quash and to challenge probable cause have been sitting there without a ruling ever since. My attorney wrote to the presiding judge to ask for a review, and it went unanswered. There has been no indictment and no return of our property by the IRS. What should be done to get the case in front of a judge?
2 Answers from Attorneys
Re: Procedural Question
Your attorney seems to know what he/she is doing, so why are you asking someone else to second guess him/her? I would ask your attorney to explain things to you.
Re: Procedural Question
What I find difficult to believe is that your lawyer does not know other attorneys in her field who might know the answer.
What I also don't understand is how you got back in front of any magistrate at all if you did not consent. Why not just get the judge's signature on the previous "order" and then "cure" the jurisdictional defect so you could continue with the appeal? It is like appealing a motion to dismiss (demurrer sustained without leave to amend) and then subsequently obtaining the order
dismissing the case, or appealing an order granting summary judgment before the actual judgment is signed.
If you are now properly assigned to a magistrate, why not make a motion for return of the property (like a claim and delivery motion) pending a decision on the submitted matter?
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