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The scope of commissioners' powers
By Theresa Jauregui

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

Commissioners may perform only limited duties absent parties' stipulation. Knowing which types of cases require a stipulation is highly important to both commissioners' lawful administration of justice and litigants' effective practice of law. (A previous article published Jan. 27 focused on the source of commissioners' powers; a subsequent article will examine stipulating to commissioners.)

The objective of this article and self-study test is to review the scope of commissioners' powers. Readers will learn about the three main situations where commissioners may not preside absent a stipulation: contested matters, imposing imprisonment, and performing duties of a magistrate. Readers will also learn about the scope of commissioners' powers when acting as temporary judges with stipulations.

California Constitution, Article VI, Section 22, enables the Legislature to enact statutes giving commissioners power to preside in a wide variety of cases, so long as they constitute "subordinate judicial duties." Enacted pursuant to these provisions are statutes which allow commissioners to preside in many civil matters (CCP Section 259), infractions (Gov. Code Section 72190), to conduct arraignments (Gov. Code Section 72190.1), and numerous other situations.

As discussed below, with limited exceptions, absent a stipulation by the parties, commissioners' statutory authority does not encompass three powers associated with judges: (1) the power to adjudicate contested matters, including contempt of court and sanctions; (2) the power to impose a sentence of imprisonment; and (3) the power to perform the statutory duties of a magistrate.

Power to Adjudicate Contested Matters

Commissioners generally do not have the power to hear contested matters without a stipulation. With limited exceptions, any determination made by a commissioner in a contested matter is subject to review by the court. For example, a commissioner hearing preliminary family law matters is required to report findings and conclusions to the court for approval, rejection or change. See CCP Section 259(e). A commissioner can also take proof and report findings on any matter of fact upon which information was required by the court, but these findings are subject to the court's review on motion by a party. See CCP Section 259(b).

In 1976, Government Code Section 72190 was amended to authorize the adjudication of infractions by commissioners. Stats. 1976; Chapter 959. This amendment represented the first authorization for commissioners to determine contested actions without court review and was upheld as a valid exercise of the Legislature's power in People v. Lucas, 82 Cal. App. 3d. 47, 53-54 (1978). Accord In re Kathy P., 25 Cal. 3d 91 (1979). Government Code Section 72190 was expanded in 1978 to also authorize commissioners to adjudicate small claims actions. Stats. 1978; Chapter 1020.

The adjudication of infractions and small claims cases are thus within the boundary of "subordinate judicial duties." All other contested actions remain outside that boundary.

Power to Impose a Sentence of Imprisonment

A commissioner's sentencing authority is specific and limited, and absent a stipulation, does not include the power to impose a sentence of imprisonment. Although commissioners exercise the same powers as a judge in infraction cases, and thus can impose a sentence, infractions are not punishable by imprisonment. See Gov. Code Section 72190; Pen. Code Section 19.6.

In traffic infraction cases, commissioners are generally authorized to impose fines not exceeding $250 and to order attendance at traffic violator school. See Veh. Code Sections 42001(a) (punishment for traffic infractions) and 42005 (court-ordered traffic violator school); People v. Lucas, 82 Cal. App. 3d at 47, 51 (punishment for traffic infraction is limited to a fine and attendance at traffic school). Greater fines and actions involving a defendant's license are authorized by statutes covering certain specific infractions. See, e.g., Veh. Code Sections 42001.1 (disregarding traffic signal) and 42001.7 (littering).

Power to Perform Magistrates' Duties

Magistrates' duties are statutorily defined and are distinct from the duties of judges and subordinate judicial officers. The duties of a magistrate primarily include issuing arrest and search warrants (Pen. Code Sections 813 et seq.), conducting arraignments (Pen. Code Section 825), setting bail (Pen. Code Sections 822-823), making probable cause determinations (Pen. Code Section 849), and conducting preliminary hearings (Pen. Code Sections 858-883).

The authority to perform magistrates' duties is a power specifically limited to the judges of the various courts. See Pen. Code Sections 807 and 808. Penal Code Section 807 defines a magistrate as a person who has the power to issue an arrest warrant. Penal Code Section 808 further specifies that magistrates are the judges of the Supreme Court, the Courts of Appeal, and the superior courts.

Thus, commissioners are not magistrates and generally are not authorized to perform magistrates' duties, with one exception: Government Code Section 72190.1 authorizes commissioners to conduct arraignment proceedings, including the issuance of bench warrants, if directed to perform such duties by the presiding judge of the court. See also Branson v. Martin, 56 Cal. App. 4th 300 (1997) (commissioner properly presided over an arraignment for a traffic violation and entered a plea on behalf of the defendant).

Powers When Acting as Temporary Judges

A commissioner may be appointed to act as a temporary judge, but this requires a stipulation from the parties. Code of Civ. Proc. Section 259(d). A court commissioner may act as a temporary judge only when the parties to the proceeding stipulate that he or she may do so. Rooney v. Vermont Inv. Corp., 10 Cal. 3d 351 (1973).

The constitutional authority for temporary judges is found in Article VI, Section 21 of the state Constitution, which provides: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." California Rules of Court, rule 10.700, also authorizes the presiding judge to assign a subordinate judicial officer to sit as a temporary judge if the presiding judge determines that, due to a shortage of judges, it is necessary for the effective administration of justice.

Court action is required to effectuate the appointment of a temporary judge and the assignment of a matter to a temporary judge. The temporary judge must be sworn and the court must order the temporary judge to try the cause. Until it is revoked, a filed oath and order may be used in any case in which the parties stipulate to the designated temporary judge. The oath and order are generally incorporated by reference into the actual stipulation. See Gov. Code Section 1360 (oath must be taken before entering upon duties of office); Cal. Const., Art. XX, Section 3 (oath of office).

Once a commissioner is sworn as a temporary judge and is stipulated to by the parties litigant, his or her authority is governed by the laws applicable to judges, not commissioners, and includes the power to impose sentences. People v. Oaxaca, 39 Cal. App. 3d 153 (1974). A commissioner acting as a temporary judge is not limited to performing the "subordinate judicial duties" set forth for commissioners in Article VI, Section 22. Temporary judges have full judicial powers and their orders are as final and nonreviewable as those of a permanent judge. In re Mark L., 34 Cal. 3d 171 (1983).

A temporary judge is also authorized to conduct a second proceeding without the parties signing a second stipulation, when the second proceeding qualifies as a "direct progeny" of the first proceeding. "Direct progeny" are those hearings which question the finality of the ruling in a stipulated proceeding or which otherwise are a continuation of the stipulated proceeding. Examples of direct progeny include: a motion to vacate an order granting a new trial (Anderson v. Bledsoe, 139 Cal. App. 650 (1934)); a motion to vacate a judgment based upon mistake, inadvertence, surprise or excusable neglect, pursuant to Code of Civil Procedure Section 473 (Reisman v. Shahverdian, 153 Cal. App. 3d 1074 (1984)); and a motion to reconsider a demurrer which has been sustained without leave to amend (McCartney v. Superior Court, 223 Cal. App. 3d 1334 (1990)).

However, if the temporary judge is unavailable, a judge of the court also has jurisdiction to hear a "direct progeny" proceeding. See New Tech Developments v. Bank of Nova Scotia, 191 Cal. App. 3d 1065 (1987). When the second proceeding is based upon a separate record independent of any ruling in the stipulated cause, it is considered an "ancillary proceeding." Sarracino v. Superior Court, 13 Cal. 3d 1 (1974). Absent a new stipulation, the temporary judge for the initial proceeding lacks the power to hear an ancillary proceeding. See Gridley v. Gridley, 166 Cal. App. 4th 1562 (2008) (real estate dispute arising 10 years after the probate estate closed was ancillary to the stipulated cause, which was limited to proceedings occurring during probate administration).

Theresa Jauregui, Esquire

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