By Theresa Jauregui
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Commissioners' powers absent a stipulation by the parties before them are limited. They do not have the authority to adjudicate contested matters, to impose imprisonment, and to perform as a magistrate. However, once a stipulation has been entered, they generally have full power to act the same way as a judge. It is therefore essential to be aware of what constitutes a valid stipulation in the different contexts where commissioners preside.
The objective of this article and self-study test is to review issues surrounding the validity of stipulations to commissioners. Readers will learn about the form of a stipulation, de facto or tantamount stipulations, the type of parties who must stipulate, and stipulations in specific contexts.
Form of the Stipulation
A commissioner's authority to act as a temporary judge emanates from the stipulation by the parties to the proceeding. Cal. Const., Art. VI, Section 21; People v. Tijerina, 1 Cal. 3d 41 (1969). The form of stipulation required is not specified in the Rules of Court or in the Constitution. See Cal. Rules of Court, rule 10.700; Cal. Const., Art. VI, Section 21. However, case law provides that a stipulation may be express or implied. See Foosadas v. Superior Court, 130 Cal. App. 4th 649 (2005); In re Courtney H., 38 Cal. App. 4th 1221 (1995).
It is the court's responsibility to prepare a stipulation which clearly defines the scope of the authority being granted. Under a contract law analogy, the Court of Appeal has held that an ambiguous stipulation prepared by a court for use in a child dependency proceeding must be construed favorably to the party wishing to withdraw from it in regards to a subsequent hearing. In re Steven A., 15 Cal. App. 4th 754 (1993). Stipulations for the appointment of a temporary judge in general must be construed narrowly. Gridley v. Gridley, 166 Cal. App. 4th 1562 (2008).
De Facto or Tantamount Stipulations
A stipulation may be implied by the conduct of the parties, including their participation in a proceeding being heard by a commissioner, without objection. Estate of Soforenko, 260 Cal. App. 2d 765 (1968). An implied stipulation, also referred to as a de facto or tantamount stipulation, may be made if the proceeding involves a judicial function and the party affirmatively participates in the proceeding and fails to object to the matter being heard by a commissioner until after it is completed. Foosadas, 130 Cal. App. 4th at 655.
This rule has been applied in a number of civil cases and has occasionally been applied in a criminal setting. In Soforenko, the court held that the actions of an attorney, who participated fully in a hearing involving objections to an executor's first account and who voiced no objection to the matter being heard by a commissioner, were tantamount to a stipulation authorizing the commissioner to hear the matter as a temporary judge. The same result was reached in a civil case where the party appeared in propria persona. See Stein v. Hassen, 34 Cal. App. 3d 294 (1973). In In re Brittany K., 96 Cal. App. 4th 805 (2002), a party's failure to make a timely objection to the matter being heard by a commissioner was tantamount to an implied waiver of the required stipulation authorizing the commissioner to hear the matter as a temporary judge.
In the criminal context, the de facto stipulation was first recognized in People v. Oaxaca, 39 Cal. App. 3d 153 (1974). In Oaxaca, the court upheld a plea bargain and sentence where there was full participation in the plea bargain by the defendant and his counsel, acceptance of the sentence and conditions of probation for an extended period, and where the attack on the validity of the proceedings was raised subsequently in a different and separate proceeding. The appellate court, however, strongly urged trial courts, even when plea bargains are involved, to secure specific oral or written stipulations. The Supreme Court later recognized a tantamount stipulation in its ruling on a habeas corpus petition arising from a murder trial. In re Horton, 54 Cal. 3d 82 (1991); People v. Horton, 11 Cal. 4th 1068 (1995).
However, in Foosadas, the Court of Appeal held that the defendant was improperly denied a preliminary hearing before a judge because there was no implied stipulation to the service of a temporary judge. The court invalidated a local rule which required a party to object to the participation of a commissioner prior to the first hearing on a case even though the first hearing only involved the performance of subordinate judicial duties that did not require a stipulation.
The constitutional requirement of a stipulation contemplates a voluntary and knowing assent to a commissioner performing a judicial function. In re Frye, 150 Cal. App. 3d 407 (1983).
Parties Litigant Whose Stipulations Are Necessary
A temporary judge is empowered to proceed upon the stipulation of the parties litigant. Cal. Const., art. VI, Section 21; Sarracino v. Superior Court, 13 Cal. 3d 1 (1974). Generally, the case law has held that a party who has notice of a proceeding but does not appear and participate is not a "party litigant" whose stipulation is necessary for a commissioner to proceed. In those cases, a commissioner may proceed upon stipulation of the participating party or parties. In Bill Benson Motors Inc. v. Macmorris Sales Corp., 238 Cal. App. 2d Supp. 937 (1965), the court noted that "the phrase 'parties litigant' ... does not include parties ... who willfully remain away from the trial of a cause .... [T]here is no injustice in ruling that they waived their rights to object to the appointment of a commissioner ... by their willful absence."
The Supreme Court, in Sarracino v. Superior Court, 13 Cal. 3d 1 (1974), noted that the default of the nonappearing litigant is "indistinguishable from that of a defendant whose default is entered in a civil action following his failure to plead within the required time." In such cases, a stipulation by the appearing party is sufficient since the stipulation is not between the parties but of the litigants. Barfield v. Superior Court, 216 Cal. App. 2d 476 (1963).
In some cases where only one party appears and stipulates, a commissioner's authority to determine the matter may also be upheld on the basis that the proceeding was in essence an uncontested matter. See Code Civ. Proc, Section 259(g); Reisman v. Shahverdian, 153 Cal. App. 3d 1074 (1984).
Stipulations and Prior Driving Under the Influence Convictions
The validity of a prior driving under the influence conviction pursuant to Vehicle Code Section 23152 is frequently challenged because the defendant did not stipulate to a commissioner taking the guilty plea. However, a commissioner is authorized to take pleas with respect to any misdemeanor violation of the Vehicle Code without a stipulation. See Gov. Code, Sections 72401(a) and 71622(d). See also People v. Miner, 68 Cal. App. 3d Supp. 1 (1977).
Similarly, the validity of a prior conviction is occasionally challenged because the defendant did not stipulate to the commissioner for sentencing. Such challenges occur when the prior conviction is being used to impose an enhanced sentence in another case. However, increased penalties for subsequent driving under the influence convictions are statutorily based upon the fact of a separate DUI conviction, not upon a separate DUI conviction for which a defendant was lawfully sentenced. For example, Vehicle Code Section 23540 provides: "If any person is convicted of a violation of Section 23152 and the offense occurred within ten years of a separate violation ... that resulted in a conviction, that person shall be punished ...." (Emphasis added; see also Vehicle Code Sections 23546 and 23550.) The statutory language of these sections suggests that it is the fact of a separate DUI conviction that supports an increased sentence upon a subsequent conviction.
Contempt Proceedings and Sanctions
When sworn as a temporary judge and stipulated to by the parties, a commissioner has the same contempt powers as a judge of the court. The stipulation need not include the express authority to issue contempt orders as such authority is inherent in the trial court's power to exercise reasonable control over its proceedings. Fine v. Superior Court, 97 Cal. App. 4th 651 (2002). Temporary judges who act under stipulation have "full judicial powers" until final determination of the cause (In re Mark L., 34 Cal. 3d 171 (1983)), and one such power is the power to punish for contempt (see Code Civ. Proc Sections 177 and 178).
However, a stipulation's inherent time limitations and the procedural aspects of contempt tend to restrict the use of contempt powers by a temporary judge. A temporary judge is sworn and empowered to act "until final determination of the cause." Cal. Const. Art. VI, Section 21. Thus, the authority conferred by a stipulation commences when the stipulation is entered into and terminates when the cause is completed. This precludes temporary judges from adjudicating direct contempts when the act constituting contempt occurs before the stipulation has been signed or after the cause has been completed. See Rosenstock v. Municipal Court, 61 Cal. App. 3d 1 (1976). A temporary judge is also precluded from adjudicating a direct contempt occurring during the course of the stipulated proceeding when the hearing on the contempt is deferred until after the underlying cause is completed. See Nierenberg v. Superior Court, 59 Cal. App. 3d 611 (1976). In such cases, a commissioner acting as a temporary judge may cite the individual for contempt and may initiate contempt proceedings using the procedure for indirect contempt. Id. at 620.
Similarly, in the case of an indirect contempt occurring during the course of the stipulated proceeding, a temporary judge has the same authority as a regular judge to cite a stipulating individual for contempt, and to issue an order to show cause. However, from a procedural standpoint, it is likely that an indirect contempt hearing will be deferred until the end of the trial or proceeding. See Nierenberg, 59 Cal. App. 3d at 619 (deferment to the end of trial is "virtually uniform practice"). In such a case, a temporary judge is precluded from adjudicating the contempt after the underlying cause is completed, unless a new stipulation is obtained.
In addition, absent a stipulation, it is not possible for a temporary judge to adjudicate the refusal of an expert witness in a civil action to give his deposition (In re Plotkin, 54 Cal. App. 3d 1014 (1976)), or the failure of an individual to make child support payments ordered by a temporary judge (In re Frye).
Finally, since a commissioner stipulated to as a temporary judge has full judicial powers, this also includes the power to impose sanctions. Estate of Ruchti, 12 Cal. App. 4th 1593 (1993). Judicial officers other than judges may recommend the imposition of sanctions, but the recommendation is merely advisory until adopted by a judge. See Sauer v. Superior Court, 195 Cal. App. 3d 213 (1987) (a referee to whom discovery proceedings have been specially referred may recommend over $5,000 in costs and attorney's fees as a discovery sanction against a party for failure to follow discovery rules, but that recommendation must be adopted by a judge).
Theresa Jauregui, Esquire