Traffic Court: Judge and cop fail to appear; I wait 45 min. then leave

[krljnk]

Friends,

On Dec 12, I sent a certified letter to the chief magistrate who signed the "Notice of Failure to Comply" notices I mentioned last receiving. The last line of that letter said to consider this my notice of intent to appeal if any adverse judgment is rendered against me in regards to these tickets. In SC, we have the right to appeal any magistrate's judgment to the "Court of Common Pleas" (aka "big court" as it's known locally or county court). It is the magistrate's responsibility to forward such "Notice of Intent to Appeal" plus all required relevant case paperwork to the clerk of court for the court of common pleas: http://www.scstatehouse.net/code/t18c003.htm

This past Thur and Fri I received two separate but nearly identical notices of impending DL suspension from the SC DMV, citing my failure to pay the tickets as the reason for such. They both say my DL will be suspended effective 12:01 AM 02/04/2008 unless I pay by then. I will also have to pay an additional $100 reinstatement fee to the DMV if I do pay after that date/time.

Thus, it seems the magistrate has apparently failed to act on my Notice of Intent to Appeal, in derogation of:
***************************************
SECTION 18-3-40. Papers shall be filed with clerk of court.

Within ten days after service the magistrate shall file the notice in the office of the clerk of court, together with the record, a statement of all the proceedings in the case, and the testimony taken at the trial as provided in Section 22-3-790.
***************************************

I also note that the code Section cited on these suspension notices from the DMV are incorrect, citing 56-25-10 instead of 56-25-20:
http://www.scstatehouse.net/code/t56c025.htm

I cannot think of an intentional reason for mis-citing the applicable code.

Please advise the best course of action at this point, other than simply paying the tickets. I want to fight this but I also do not want the DL suspension, if avoidable, as that will snowball into insurance problems.

[krljnk]

Deleted duplicate post.

[farmer_giles_of_ham]

All states have an automatic appeal to regular court from traffic court. Pending appeal, your DL could be good- check with the DMV

[krljnk]

The hearing magistrate with whom I have been dealing informed me over the phone Friday that he had denied my motion for appeal because he claimed I didn't file it timely. I kindly explained to him that I didn't motion for appeal but rather Noticed him of my intent to appeal, for SC Code section 18-3-40. Per that statute, it was incumbent upon him to "file the notice in the office of the clerk of court [i.e. county circuit court, aka 'Court of Common Pleas'], together with the record, a statement of all the proceedings in the case, and the testimony taken at the trial as provided in Section 22-3-790." He failed to do this. It was not his job to evaluate the timeliness of the appeal, even though I did serve him within just a few days of my receiving the two "Notice of Failure to Comply with Terms of Citation" notices.

As of today, I am pursuing this failure to follow statutorily prescribed procedure through SC Court Administration. This may result in my getting the appeal I was aiming for (hopefully a vacation of the judgment) and an immediate instatement of my presumably now suspended DL. I would also like to pursue this magistrate in his personal capacity, probably through his bond or whatever other avenue I can pursue, due to his denial of my fundamental due process rights. I have already received a verbal indication from the attorney at SC Court Administration that oversees all magistrates in this state that, yes, this particular magistrate did fail to follow proper procedure, that it wasn't within his discretion to hinder my appeal by his attempt at "denying" it, and that I have developed solid sounding points for appeal.

FYI: It has long been a recognized problem in SC that the first level judges in the SC court system (i.e. county and city magistrates) have no legal education or training whatsoever, other than perhaps a meager "certificate" course by the SLED (South Carolina Law Enforcement Division), and a high school diploma. Only in recent years have they even begun to phase in increase education requirements...as of July 1, 2005, you must now have a bachelors degree to be a magistrate: http://www.scstatehouse.net/code/t22c001.htm

[blu3duk]

you have a perfect set up for an "abuse of process" action coupled with a "Bivens" action for the magistrates trying to do a CYA and keep you fro the next level in court....

hit em hard, neve mind to bring em back alive though.

William
Idaho

[krljnk]

Thank you for the suggestion regarding the Bivens action. I see there are indications that it may be applicable to state actors and not just federal actors for whom it apparently was originally intended.

Friends,
I have now received word from that staff attorney at SC Court Administration that he's spoken with that magistrate and that magistrate now agrees that I did serve notice of intent to appeal and it was timely. That magistrate has agreed to forward my appeal to the circuit court (upstairs in the same building).

It seems, therefore, that I was vindicated in my assertion that I gave timely notice of intent to appeal and that that magistrate should have acted per the statute previously cited above.

FYI: That staff attorney has declined to comment on how it is possible for that magistrate to find me "guilty" of something the law says is not criminal (i.e. failing to wear a seatbelt).

[ezrhythm]

That's great news and Thank You for the update!