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MCLE: A commissioner's source of power
By Theresa Jauregui

Please visit the MCLE section of the Daily Journal's website to take this test.

Commissioners serve a vital function in California's courts, performing duties from determining ex parte motions and hearing uncontested actions, to presiding over criminal trials. Understanding the source of commissioners' powers is critical to determining what type of actions they may lawfully preside. (Subsequent articles will focus on the scope of commissioners' powers, and stipulating to commissioners.)

The objective of this article and self-study test is to review the source of commissioners' powers. Readers will learn about the constitutional authority that empowers commissioners and the numerous statutes that authorize commissioners' ability to perform their duties.

Constitutional and Statutory Authority

The state Constitution authorizes commissioners to perform "subordinate judicial duties." Article VI, Section 22 provides that the Legislature may appoint officers such as commissioners to perform subordinate judicial duties. A commissioner appointed by the court under Article VI, Section 22 may perform subordinate judicial duties without a stipulation, in contrast with when a commissioner is appointed to act as a temporary judge, which requires a stipulation from the parties. Code of Civ. Proc. Section 259(d); Rooney v. Vermont Inv. Corp., 10 Cal. 3d 351 (1973).

What constitutes a subordinate judicial duty is not always readily discernible. In People v. Lucas, 82 Cal. App. 3d 47 (1978), the court noted that although Webster's Third New International Dictionary defined "subordinate" as "placed in a lower order, class or rank; holding a lower or inferior position," in its literal sense, the word "subordinate" is a relative term. Thus, in separating a subordinate judicial duty from other judicial duties, the seriousness, complexity and diversity of the factual and legal issues must be considered. Id. at 56.

In addition to authorizing a commissioner to perform subordinate judicial duties, Article VI, Section 22 also empowers the Legislature to enact statutes defining the powers and duties that may be assigned to commissioners. Article VI, Section 22 does not contain specific language referring to the powers and duties of a commissioner; it merely authorizes the delegation of subordinate judicial duties. Rooney found that the use of the phrase "subordinate judicial duties" was intended to be sufficiently broad to permit the Legislature or other rule-making agency to later enact or adopt the specific details.

Thus, the specific powers and duties of a commissioner will be found in statutes and rules. See Gov. Code Section 72190. Any statutory power or duty granted by the Legislature must, however, meet the constitutional test of "subordinate judicial duties" in order to be a valid exercise of that power. A strong presumption favors the Legislature's interpretation of this constitutional provision. Rooney, 10 Cal. 3d at 365-66.

The Legislature has adopted several statutory provisions setting forth and defining the powers and duties of a commissioner. These provisions set forth the scope of authority for the role of a commissioner in an action or proceeding. Any power or duty not specifically authorized by statute is beyond the scope of a commissioner's authority. See Badgley v. Van Upp, 20 Cal. App. 4th 218 (1993).

Code of Civil Procedure Section 259

The primary statutory authority governing commissioners is Code of Civil Procedure Section 259, which enumerates the general powers and duties of court commissioners. Subject to the supervision of the court, Section 259 authorizes a commissioner to perform the following subordinate judicial duties:

Ex parte motions: a commissioner may hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus. See Code Civ. Proc. Section 259(a).

Take proof and make findings: A commissioner may preside as a fact-finding referee to take proof and make and report findings as to any matter of fact upon which information is required by the court. See Code Civ. Proc. Section 259(b).

Bonds and undertakings: A commissioner may take and approve any bonds and undertakings, and determine objections to the bonds and undertakings. See Code Civ. Proc. Section 259(c).

Temporary judges: A commissioner may act as a temporary judge when otherwise qualified to do so and when appointed for that purpose, on stipulation of the parties litigant. Code Civ. Proc. Section 259(d).

Proceedings for support, dissolution, nullity of marriage or legal separation: A commissioner may hear and report findings and conclusions to the court for approval, rejection, or change, all preliminary matters in proceedings for support, dissolution of marriage, nullity of marriage or legal separation. See Code Civ. Proc. Section 259(e).

Paternity actions: A commissioner may hear actions to establish paternity and to establish or enforce child and spousal support pursuant to Family Code Section 4251(a). See Code Civ. Proc. Section 259(f).

Uncontested actions or proceedings: A commissioner may hear, report on, and determine all uncontested actions and proceedings subject to the requirements of Code Civil Procedure Section 259(d). See Code Civ. Proc. Section 259(g).

Other Statutory Authority

In addition to the powers authorized under Code of Civil Procedure Section 259, several other statutory provisions specify actions that a commissioner may take without a stipulation. For example, Government Code Section 71622(d) provides generally that a commissioner may perform the duties of another type of subordinate judicial officer when cross-assigned by the presiding judge to perform such duties. These provisions are discussed below.

Infraction cases: Government Code Section 72190 authorizes a commissioner to hear and determine infraction cases when directed to do so by the court. A commissioner hearing such cases has the same jurisdiction, and may exercise the same powers and duties, as a judge of the court. Gov. Code Section 72190; People v. Lucas (presiding over infractions may be designated as subordinate judicial duties); In re Kathy P., 25 Cal. 3d 91 (1979) (citing Lucas with approval).

Small claims cases: Government Code Section 72190 also authorizes a commissioner to hear and determine small claims actions when directed to do so by the court. A commissioner hearing such cases has the same jurisdiction, and may exercise the same powers and duties, as a judge of the court. Gov. Code, Section 72190.

Arraignment proceedings: Government Code Section 72190.1 generally authorizes a commissioner to conduct arraignment proceedings on a complaint when directed to perform such duties by the presiding judge of the court. This statutory authorization includes the power to issue and sign bench warrants for the arrest of a non-appearing defendant. Gov. Code Section 72190.1.

Although a commissioner acting without a stipulation may accept a guilty plea at an arraignment involving a Vehicle Code infraction or misdemeanor, an attorney general's opinion has concluded that a commissioner may not accept a guilty plea in other types of matters without a stipulation. See 67 Ops. Atty. Gen. 162 (1984); People v. Miner, 68 Cal. App. 3d. Supp. 1 (1977). See also Pen. Code Sections 988 (defining "arraignment") and 1003 (specifying when a plea must be made).

Bench warrants: When directed to perform such duties by the presiding judge, Government Code Section 72190.2 authorizes a commissioner to issue and sign bench warrants for the failure to appear in court or for the failure to perform any act required by a court order. See also Gov. Code Section 72190.1 (authority to issue and sign bench warrants during arraignment proceedings).

Bail: Commissioners have the authority to set bail in misdemeanor Vehicle Code violation cases. See Gov. Code Section 72304. Commissioners also have the authority to determine applications for increases or decreases of the amount set by the bail schedule where there is a warrantless felony arrest or a misdemeanor violation of a domestic violence restraining order. Pen. Code Section 1269c.

Emergency protective orders: Commissioners have the authority to issue ex parte emergency protective orders under the Domestic Violence Prevention Act. See Family Code Sections 6240-6257. Commissioners also have the authority to issue emergency protective orders against stalking. See Fam. Code Section 6274; Pen. Code Section 646.91.

Contempt proceedings: A commissioner may initiate contempt proceedings by preparing and presenting to the court an affidavit stating the facts constituting the contempt. However, a commissioner may not adjudicate the contempt unless the parties stipulate that the commissioner may hear the matter as a temporary judge. See Code Civ. Proc Section 1211(a); Rosenstock v. Municipal Court, 61 Cal. App. 3d 1 (1976).

Code of Civil Procedure Section 1211 limits the exercise of the power of contempt to the court or a judge thereof. Thus, pursuant to Rosenstock, a judge, not the commissioner, has the authority to determine whether or not an order to show cause re contempt should issue upon the commissioner's application by affidavit. Moreover, the authority to conduct a hearing on the facts and to adjudicate the contempt also lies with the court.

References: A commissioner may be appointed to act as a referee to conduct a general or special reference hearing under Code of Civil Procedure Section 638 or 639.

Traffic referees: A commissioner may act as a traffic referee when cross-assigned by the presiding judge to perform such duties. See Gov. Code Section 71622(d). When hearing misdemeanor Vehicle Code violations, a traffic referee has the power to: (1) fix bail; (2) grant continuances; (3) arraign the defendant; (4) hear and recommend orders to be made on demurrers and motions other than for continuances; (5) take pleas; and (6) set cases for hearing or trial. Gov. Code Section 72401(a). See also Gov. Code Section 72304 (authority to set bail in misdemeanor Vehicle Code violation cases as provided in Veh. Code Section 40511).

Juvenile court referees and hearing officers: A commissioner may act as a juvenile court referee or hearing officer when cross-assigned by the presiding judge to perform such duties. See Gov. Code Section 71622(d).

Child support commissioners: pursuant to Family Code Section 4251, child support commissioners are authorized to hear Title IV-D child support cases filed by the local child support agency.

Attachment law: Code of Civil Procedure Section 482.060 authorizes a commissioner to perform any judicial duty under the Attachment Law (Sections 481.010-493.060), except the judicial duties performed in the determination of any contested proceeding listed in Code of Civil Procedure Section 482.060(b).

Innkeeper liability and liens: A commissioner may perform judicial duties related to innkeeper liability and liens. See Civ. Code Section 1861.28.

Marriage ceremonies: A commissioner has the authority to solemnize marriages pursuant to Family Code Section 400(b).

Oaths, affirmations, affidavits, and proof and acknowledgement of instruments: Code of Civil Procedure Section 2093 authorizes a commissioner to administer oaths and affirmations. Code of Civil Procedure, Section 2012 authorizes a commissioner to take affidavits. Under Civil Code Section 1181, a commissioner is authorized to take proof or acknowledgement of an instrument within the county in which the commissioner was elected or appointed.

Writs: A commissioner has the authority to summarily deny a petition for writ of mandamus or habeas corpus under Code of Civil Procedure Section 259(a). See Gomez v. Superior Court, 54 Cal. 4th 293 (2012).

Theresa Jauregui, Esq.

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