The Scope of Commissioners’ Powers

By

Theresa JaureguiStaff Attorney

LOS ANGELES SUPERIOR COURTPlanning and Research Unit

September 2006

TABLE OF CONTENTS

SUMMARY

I. COMMISSIONERS’ POWERS.............................................................................. 1

II. COMMISSIONERS AS TEMPORARY JUDGES .................................................. 1

DISCUSSION

I. THE SCOPE OF COMMISSIONERS’ POWERS .................................................. 2

A. Constitutional Authority ................................................................................... 2

B. Statutory Authority .......................................................................................... 3

1. Code of Civil Procedure § 259 ................................................................. 3

2. Other Statutory Authority .......................................................................... 8

a. Infraction Cases .................................................................................. 8

b. Small Claims Cases ............................................................................ 8

c. Arraignment Proceedings .................................................................... 8

d. Bench Warrants................................................................................... 9

e. Bail ...................................................................................................... 9

f. Emergency Protective Orders ............................................................. 9

g. Contempt Proceedings ........................................................................ 10

h. References .......................................................................................... 10

i. Traffic Referees................................................................................... 11

j. Juvenile Court Referees and Hearing Officers .................................... 12

k. Child Support Commissioners ............................................................. 13

l. Probate Commissioners ...................................................................... 13

m. Attachment Law................................................................................... 13

n. Innkeeper Liability and Liens ............................................................... 13

o. Marriage Ceremonies .......................................................................... 14

p. Oaths and Affirmations ........................................................................ 14

q. Affidavits.............................................................................................. 14

r. Proof and Acknowledgement of Instruments ....................................... 14

C. Analysis of the Scope of Subordinate Judicial Duties ..................................... 14

1. Power to Adjudicate Contested Matters ................................................... 15

2. Power to Impose a Sentence of Imprisonment ......................................... 16

3. Power to Perform Magistrates’ Duties ...................................................... 16

II. THE SCOPE OF COMMISSIONERS’ POWERS WHEN ACTING AS TEMPORARY JUDGES........................................................................................ 17

A. The Stipulation................................................................................................ 20

1. Form of the Stipulation ............................................................................. 20

2. De Facto or Tantamount Stipulations....................................................... 20

B. Parties Litigant Whose Stipulations Are Necessary ........................................ 22

C. Stipulations and Prior Driving Under the Influence Convictions ...................... 23

D. Stipulations in the Context of Contempt Proceedings ..................................... 24

E. Stipulations in the Context of Sanctions ......................................................... 25

F. Stipulations and Magistrates’ Functions ......................................................... 26

1

SUMMARY

I. Commissioners ’ Powers

A court commissioner is authorized under the California Constitution to perform

“subordinate judicial duties.” Cal. Const. Art. VI, § 22. The primary duties of

commissioners, which have been specified by statute , include determining ex parte

motions, hearing uncontested actions and proceedings, conducting arraignments,

hearing actions to establish paternity and child or spousal support, hearing small claims

and infraction cases, and issuing bench warrants for failure to appear.

Absent a stipulation, it appears that, with limited exceptions, subordinate judicial duties

do not encompass three powers associated with judges: (1) the power to adjudicate

contested matters other than infractions and small claims cases ; (2) the power to

impose a sentence of imprisonment; and (3) the power to perform the statutory duties of

a magistrate, other than arraignments. These functions and duties are beyond the

scope of a commissioner’s authority.

II. Commissioners As Temporary Judges

A commissioner, sworn as a temporary judge and stipulated to by the parties litigant,

has full judicial powers until the final determination of the cause. Cal. Const. Art. VI, §

21. These include the power to adjudicate contested matters, including sanctions and

contempt of court, and the power to impose sentences of imprisonment.

Under case law, a temporary judge may also conduct preliminary hearings, which by

statute are magistrate’s duties. With respect to the ex parte issuance of search

warrants and arrest warrants, also magistrate’s duties, there are no cases on point.

However, an Attorney General’s opinion has concluded that a commissioner, sworn and

stipulated to as a temporary judge, is not authorized to issue such warrants.

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DISCUSSION

I. The Scope of Commissioners ’ Powers

An examination of the scope of commissioners’ powers requires an analysis of the

Constitutional provision which authorizes commissioners to perform subordinate judicial

duties and the statutory provisions which define those duties.

A. Constitutional Authority

The California Constitution authorizes commissioners to perform “subordinate judicial

duties.” Article VI, § 22 provides that the Legislature may provide for the appointment of

officers such as commissioners to perform subordinate judicial duties. A commissioner

appointed by the court under Article VI, § 22 may perform subordinate judicia l duties

without a stipulation.

What constitutes a subordinate judicial duty is not always readily discernible. In People

v. Lucas, 82 Cal. App. 3d 47, 54, 147 Cal. Rptr. 235 (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 se riousness, complexity and diversity of the factual and

legal issues must be considered. Lucas, 82 Cal. App. 3d at 50 -56.

In addition to authorizing a commissioner to perform subordinate judicial duties, Article

VI, § 22 also empowers the Legislature to en act statutes defining the powers and duties

that may be assigned to commissioners. Article VI, § 22 does not contain specific

language referring to the powers and duties of a commissioner; it merely authorizes the

delegation of subordinate judicial duties. 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. Rooney v. Vermont

Investment Corp., 10 Cal. 3d 351, 362, 110 C al. Rptr. 353 (1973). Thus, the specific

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powers and duties of a commissioner will be found in statutes and rules. See

Government Code § 72190 (within the jurisdiction of the court and under the direction of

the judges, commissioners shall exercise all th e powers and perform all the duties

prescribed by law).

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 -366.

B. Statutory Authority

The Legislature has adopted several statutory provisions setting forth and defining the

powers and duties of a commissioner. The se provisions provide 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, 24 Cal. Rptr.

2d 406 (1993) (procedure by which the commissioner heard all the evidence on the

contested issues and then turned the record over to the judge without findings or

recommendations lacked statutory authorization); International Jet Ski Boating

Association, Inc. v. Superior Court (Parker), 232 Cal. App. 3d 112, 283 Cal. Rptr. 33

(1991) (court commissioner is not statutorily authorized to hear a motion for summary

judgment).

1. Code of Civil Procedure § 259

The primary statutory authority govern ing commissioners is Code of Civil Procedure §

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:

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a. Ex parte motions

A commissioner may hear and determine ex parte motions for orders and alternative

writs and writs of habeas corpus. See CCP § 259(a).

Ex parte orders by a commissioner which have been upheld include: (1) an order

requiring an administrator of an estate to appear and answer as a judgment debtor

(Lewis v. Neblett, 188 Cal. App. 2d 290, 296 -297, 10 Cal. Rptr. 441 (1961)); (2) an order

approving a probate claim (Estate of Roberts, 49 Cal. App. 2d 71, 76 -78, 120 P.2d 933

(1942)); and (3) an order forfeiting the bail of a nonappearing defendant in a criminal

case (People v. Surety Insurance Co ., 18 Cal. App. 3d Supp. 1, 3 -4, 95 Cal. Rptr. 925

(1971), People v. Surety Insurance Co., 48 Cal. App. 3d 123, 125 -126, 121 Cal. Rptr.

438 (1975)).

b. 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

CCP § 259(b).

A reference made pursuant to this provision must inform the commissioner of the

specific factual matters to be determined. A broad reference order, couched in the

conclusionary language of section 259, is an improper delegation of judicial duties to a

subordinate judicial officer. Settlemire v. Superior Court, 105 Cal. App. 4th 666, 672,

129 Cal. Rptr. 2d 560 (2003) (contested hearing involving multiple issues, including

permanent injunction, custody, and disposition of community asset s).

Referral of a summary judgment motion to a commissioner und er this provision is

inappropriate in the absence of a stipulation. A referral under section 259(b) is for the

purpose of making findings of fact and a ruling on summary judgment is a question of

law, not fact. International Jet Ski Boating Association, Inc. v. Superior Court (Parker) ,

232 Cal. App. 3d 112, 283 Cal. Rptr. 33 (1991).

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c. Bonds and Undertakings

A commissioner may take and approve any bonds and undertakings, and determine

objections to the bonds and undertakings. See CCP § 259(c).

Under this provision, a commissioner has the authority to approve bail bonds. County

of Los Angeles v. Grannis, 88 Cal. App. 391, 392, 263 P. 835 (1928).

d. 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. CCP § 259(d).

This provision was amended in 2004 to delete the requirement of a written stipulation

and to require a stipulation of the parties litigant rather than an appearing party. Stats.

2004 (SB 1225); Chapter 49. According to the Law Revision Commission, these

amendments make subdivision (d) consistent with the constitutional standard for

appointment of a temporary judge. See Article VI, § 22; Authority of Court

Commissioner, 33 Cal. L. Revision Comm’n Reports 673, 683 (2003). Under the

Constitution, written consent is not required when there is implied consent or

tantamount stipulation. See In re Courtney H., 38 Cal. App. 4th 1221, 1227-1228, 45

Cal. Rptr. 2d 560 (1995). Moreover, u nder the constitutional standard, the

determination of whether the stipulation of a party is required is contingent on the

party’s status as a litigant, not on whether the party is an appearing party. See

Sarracino v. Superior Court , 13 Cal. 3d 1, 118 Cal . Rptr. 21 (1974), Barfield v. Superior

Court, 216 Cal. App. 2d 476, 477, 37 Cal. Rptr. 30 (1963).

See also California Rules of Court, Rule 6.609 1, which provides that the primary role of

a subordinate judicial officer is to perform subordinate judicial du ties. However, Rule

6.609 also provides that the court may assign a commissioner to sit as a temporary

judge if the presiding judge determines that it is necessary for the effective

administration of justice, due to a shortage of judges.

1 Effective January 1, 2007, Rule 6.609 is renumbered as Rule 10.700.

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e. Proceedings for Support, Dissolution, Nullity of Marriage or Legal Separation

A commissioner may hear all preliminary matters in proceedings for support, dissolution

of marriage, nullity of marriage, or legal separation, including motions or petitions for the

custody and support of children, the allowance of temporary spousal support, costs and

attorneys’ fees, and issues of fact in contempt proceedings. The commissioner shall

report his or her findings and conclusions to the court for approval, rejection, or change.

See CCP § 259(e).

f. Paternity Actions

A commissioner may hear actions to establish paternity and to establish or enforce child

and spousal support pursuant to Family Code § 4251(a). See CCP § 259(f).

Family Code § 4251 authorizes commissioners to hear actions c oming under Title IV-D

of the federal Social Security Act, including child custody and support, which are

deemed complex or which involve the establishment of paternity. See Stratton v.

Stratton, 226 Cal. App. 3d 1392, 277 Cal. Rptr. 448 (1991) (commissio ners are

authorized to conduct child support enforcement hearings without a stipulation, with

recommendations subject to review by a superior court judge).

g. Uncontested Actions or Proceedings

A commissioner may hear, report on, and determine all uncontested actions and

proceedings subject to the requirements of subdivision (d). See CCP § 259(g).

Uncontested actions and proceedings which have been discussed in connection with

this provision include the following situations: (1) uncontested civil trials whe re an

answering party fails to appear ( Bill Benson Motors, Inc. v. Macmorris Sales Corp., 238

Cal. App. 2d Supp. 937, 942, 48 Cal. Rptr. 123 (1965)); (2) various types of civil defaults

(E.N.W. v. Michael W. , 149 Cal. App. 3d 896, 899, 198 Cal. Rptr. 355 ( 1983), Reisman

v. Shahverdian, 153 Cal App. 3d 1074, 1093, 201 Cal. Rptr. 194 (1984)); and (3) entry

of judgment in accordance with the terms of a written stipulation (People v. Superior

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Court (Stein), 239 Cal. App. 2d 99, 103 -104, 48 Cal. Rptr. 445 (1965) , Rooney v.

Vermont Investment Corp., 10 Cal. 3d 351, 367, 110 Cal. Rptr. 353 (1973)).

A court at its discretion may authorize a commissioner under the above provision either

to “hear and determine” or to “hear and report on” a matter. West v. U.L.C. Corp., 232

Cal. App. 2d 85, 89, 42 Cal. Rptr. 603 (1965); Rooney, 10 Cal. 3d at 367 (although this

language permits the court to require the commissioner to hear and report on an

uncontested matter without determining it, it also allows the court to order a

commissioner to hear and determine the matter prior to making any report).

In addition to the powers and duties set forth above, C ode of Civil Procedure § 259

formerly authorized a commissioner to perform various notarial acts, charge and collect

fees, provide an official seal and authenticate his or her acts with that official seal.

The authority to perform notarial acts, form erly found in subdivision (d), was repealed in

2004 as duplicative of the independent authority found in C ode of Civil Procedure §

2093 (administer oaths and affirmations), C ode of Civil Procedure § 2012 (take

affidavits and depositions), and Civil Code § 1181 (take proof and acknowledgement of

instruments). See Stats 2004 (SB 1225); Chapter 49. According to the California Law

Revision Commission, the repeal of subdivision (d) does not preclude a commissioner

from administering oaths or affirmations, taking affidavits and depositions, and taking

proof or acknowledgement of instruments. See Authority of Court Commissioner, 33

Cal. L. Revision Comm’n Reports 673, 686 (2003).

Provisions establishing a commissioner’s authority to charge and collect fees, provide

an official seal, and authenticate his or her acts with that seal, form erly found in

subdivisions (i), (j), and (k), respectively, were also repealed in 2004 as obsolete.

According to the California Law Revision Commission, these provisions were repealed

because they suggested that the position of court commissioner is a county rather than

a court position. See Authority of Court Commissioner, 33 Cal. L. Revision Comm ’n

Reports 673 (2003).

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2. Other Statutory Authority

In addition to the powers authorized under Code of Civil Procedure § 259, several other

statutory provisions specify actions that a commissioner may take without a stipul ation.

For example, Government Code § 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.

a. Infraction Cases

Government Code § 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. Government Code § 72190; People v. Lucas, 82 Cal. App. 3d 47, 53 -54, 147 Cal.

Rptr. 235 (1978) (infractions may be designated as subordinate judicial duties) ; In re

Kathy P., 25 Cal. 3d 91, 98- 99, 157 Cal. Rptr. 874 (1979) (citing Lucas with approval).

b. Small Claims Cases

Government Code § 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. Government Code § 72190.

c. Arraignment Proceedings

Government Code § 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 nonappearing defendant. Government Code

§ 72190.1.

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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, 4, 137 Cal. Rptr. 149 (1977). See also, Penal Code § 988, which

defines “arraignment,” and Penal Code § 1003, which states when a plea must be

made.

d. Bench Warrants

When directed to perform such duties by the pr esiding judge, Government Code §

72190.2 authorizes a commissioner to issue and sign bench warrants for the failure to

appear in court or the failure to perform any act required by a court order. See also

Government Code § 72190.1 (authority to issue and sign bench warrants during

arraignment proceedings).

e. Bail

Commissioners have the authority to set bail in misdemeanor Vehicle Code violation

cases. See Government Code § 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. Penal Code § 1269c.

f. Emergency Protective Orders

Commissioners have the authority to issue ex parte emergency protective orders under

the Domestic Violence Prevention Act. See Family Code §§ 6240-6257.

Commissioners also have the authority to issue emergency protective orders against

stalking. See Family Code § 6274; Penal Code § 646.91.

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g. 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 CCP § 1211(a); Rosenstock v. Municipal

Court, 61 Cal. App. 3d 1, 7, 132 Cal. Rptr. 59 (1976); Marcus v. Workman’s Comp.

Appeals Bd., 35 Cal. App. 3d 598, 603 -604, 111 Cal. Rptr. 101 (1973).

Code of Civil Procedure § 1211 limits the exercise of the power of contempt to the court

or a judge thereof. Thus, the court, 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. Rosenstock, 61 Cal. App. 3d at 8. Moreover,

the authority to conduct a hearing on the facts and to adjudicate the contempt also lies

with the court. Rosenstock, 61 Cal. App. 3d at 6; Marcus, 35 Cal. App. 3d at 603 -604.

h. References

A commissioner may be appointed to conduct a general or special reference hearing

under Code of Civil Procedure § 638 or 639. See CCP § 640. When appointed to

conduct a general reference hearing by agreement of the parties, the commissione r has

the authority to hear and determine the entire controversy, including any issues of fact

or law, and to report a statement of decision. See CCP § 638; Settlemire v. Superior

Court, 105 Cal. App. 4th 666, 670, 129 Cal. Rptr. 2d 560 (2003); Murphy v. Padilla, 42

Cal. App. 4th 707, 714, 49 Cal. Rptr. 2d 722 (1996) (a nonconsensual general reference

constitutes an unconstitutional abdication of judicial authority). See also California

Rules of Court, Rule 244.12 governing general references by agreement in the superior

court.

By contrast, when a commissioner is appointed to conduct a special reference hearing

by order of the court, the commissioner ’s authority is limited to specific fact

2 Effective January 1, 2007, Rule 244.1 is repealed and recast in new Rules 3.900 through 3.910.

11

determinations. See CCP § 639; Settlemire, 105 Cal. App. 4th at 671. A special

reference may be made without the consent of the parties but the commissioner ’s

findings are merely advisory and not binding on the superior court. In re Marriage of

Petropolous, 91 Cal. App. 4th 161, 176, 110 Cal. Rptr. 2d 111 (2001) (alt hough findings

and recommendations made by a commissioner at a special reference hearing are

advisory and not binding, great weight is given to the commissioner ’s opinion). See

also California Rules of Court, Rule 244.23, governing special references by c ourt order

in the superior court.

A summary judgment motion, which will determine liability in the action, may not be

referred to a commissioner pursuant to Code of Civil Procedure § 639 . See Aetna Life

Insurance Co. v. Superior Court , 182 Cal. App. 3d 431, 436, 227 Cal. Rptr. 460 (1986);

In re Edgar M. , 14 Cal. 3d 727, 734, 122 Cal. Rptr. 574 (1975) (a referee can make a

binding determination only in a consensual general reference ).

i. Traffic Referees

A commissioner may act as a traffic referee when cross-assigned by the presiding judge

to perform such duties. See Government Code § 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 re commend

orders to be made on demurrers and motions other than for continuances; (5) take

pleas; and (6) set cases for hearing or trial. Government Code § 72401(a). See also,

Government Code § 72304 (authority to set bail in misdemeanor Vehicle Code viola tion

cases as provided in Vehicle Code § 40511).

In addition, when hearing Vehicle Code § 42001(b) cases, a traffic referee may impose

a fine following a plea of guilty or nolo contendere. The fine may not exceed the bail

provided in the bail schedule. Traffic referees have the discretion to suspend payment

of all or part of the fine but may not order express conditions of probation. Traffic

3 Effective January 1, 2007, Rule 244.2 is repealed and recast in new R ules 3.920 through 3.927.

12

referees may also order the defendant to attend traffic school. Government Code §

72401(b).

When conducting arraignments, taking pleas, granting continuances, setting cases for

trial, and imposing penalties for traffic offenses as provided above, a traffic referee has

the same powers as a judge of the court. Government Code § 72402.

See also People v. Miner, 68 Cal. App. 3d Supp. 1, 4 , 137 Cal. Rptr. 149 (1977) (no

stipulation is necessary for a commissioner to accept a guilty plea of a defendant to a

misdemeanor violation of the Vehicle Code or to an infraction); In re Kathy P. , 25 Cal.

3d 91, 157 Cal. Rptr. 874 (19 79) (the duties specified in section 72401 are subordinate

judicial duties).

j. Juvenile Court Referees and Hearing Officers

A commissioner may act as a juvenile court referee or a hearing officer when cross -

assigned by the presiding judge to perform such dut ies. See Government Code §

71622(d).

A juvenile court referee has the authority to hear all juvenile delinquency and

dependency matters assigned to him or her by the presiding judge of the juvenile court.

A juvenile court referee exercises the same judic ial powers as a judge of the juvenile

court, except in hearings to which state or federal constitutional prohibitions against

double jeopardy apply. A written stipulation is required in order for a referee to conduct

such hearings. See Welfare and Institutions Code § 248; In re Aontae, 25 Cal. App. 4th

167, 30 Cal. Rptr. 2d 176 (1994) ( the requirement of a written stipulation is directory and

thus the absence of a writing does not deprive the court of jurisdiction ). All orders made

by a juvenile court referee are subject to review by a judge.

Pursuant to Government Code § 71622(d), a commissioner may also perform the duties

of a juvenile hearing officer. See Welfare and Institutions Code §§ 255-263; In re Kathy

P., 25 Cal. 3d 91, 157 Cal. Rptr. 874 (1979) (juvenile hearing officers’ functions are

subordinate judicial duties).

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k. Child Support Commissioners

Pursuant to Family Code § 4251, child support commissioners are authorized to hear

Title IV-D child support cases filed by the local child support agency. A child support

commissioner acts as a temporary judge unless an objection is made by the local child

support agency or any other party after receiving the statutorily required notice that the

matter is being heard by a commissioner acting as a temporary judge. Family Code §

4251(b). If a party objects, the commissioner may hear the matter and make findings of

fact and a recommended order. See Family Code § 4251(c); Orange County

Department of Child Support Services v. Superior Court , 129 Cal. App. 4th 798, 808, 28

Cal. Rptr. 3d 877 (2005).

l. Probate Commissioners

The office of probate commissioner, established by former Government Code § 69897,

was repealed in 2002.

m. Attachment Law

Code of Civil Procedure § 482.060 authorizes a commissioner to perform any judicial

duty under the Attachment Law ( §§ 481.010 through 493.060), except the judicial duties

performed in the determination of any contested proceeding listed in subdivision (b).

CCP § 482.060. See also Loeb and Loeb v. Beverly Glen Music, Inc. , 166 Cal. App. 3d

1110, 1120-1121, 212 Cal. Rptr. 830 (1985) (a commissioner has the authority to hear

and determine an application for prejudgment attachment and any opposition thereto).

n. Innkeeper Liability and Liens

Civil Code § 1861.28 authorizes a commissio ner to perform various judicial duties

concerning the personal property liability and liens of innkeepers and others. See Civil

Code §§ 1859 through 1863. Such judicial duties are “subordinate judicial duties” within

the meaning of Article VI, § 22. Civ il Code § 1861.28.

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o. Marriage Ceremonies

A commissioner has the authority to solemnize marriages pursuant to Family Code §

400(b).

p. Oaths and Affirmations

Code of Civil Procedure § 2093 authorizes a commissioner to administer oaths and

affirmations. Section 2093 provides that every officer or person authorized to take

testimony in any action or proceeding, or to decide upon evidence, has the power to

administer oaths or affirmations.

q. Affidavits

Code of Civil Procedure § 2012 authorizes a commissioner to take affidavits. Pursuant

to section 2012, an affidavit to be used before any court, judge, or officer of the state

may be taken before any officer authorized to administer oaths.

r. Proof and Acknowledgement of Instruments

A commissioner is authorized to take p roof or acknowledgement of an instrument within

the county in which the commissioner was elected or appointed. See Civil Code §

1181.

C. Analysis of the Scope of Subordinate Judicial Duties

In examining the scope of subordinate judicial duties set forth in t he statutes discussed

above, it appears that, with limited exceptions, subordinate judicial duties do not

encompass three powers associated with judges: (1) the power to adjudicate contested

matters, including contempt of court and sanctions; (2) the powe r to impose a sentence

of imprisonment; and (3) the power to perform the statutory duties of a magistrate.

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1. 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 Code of Civil Procedure § 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 part y. See Code of Civil Procedure § 259(b).

In 1976, however, the Legislature amended Government Code § 72190 to authorize the

adjudication of infractions by commissioners. Stats. 1976 ; Chapter 959. This

amendment represented the first authorization for co mmissioners 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, 147 Cal. Rptr. 235

(1978).

In In re Kathy P. , 25 Cal. 3d 91, 98, 157 Cal. Rptr. 874 (1979), the California Supreme

Court cited People v. Lucas with approval, stating:

Upholding the ‘subordinate’ nature of those adjudications, Lucas took

into account that punishments for infractions are markedly lighter than

for other offenses and that ‘the unique and specialized function of trying

infraction cases ... could properly be ranked as ‘subordinate’ in relation

to the diversity and complexity of other duties of a municipal court

judge.

Government Code § 72190 was expanded in 1978 to also authorize commissioners to

adjudicate small claims actions. Stats. 1978 ; Chapter 1020.

The adjudication of infractions and s mall claims cases are thus within the boundary of

“subordinate judicial duties.” All other contested actions remain outside that bounda ry.

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2. Power to Impose a Sentence of Imprisonment

A commissioner’s sentencing authority is specific and limited, and does not include the

power to impose a sentence of imprisonment . Although commissioners exercise the

same powers as a judge in infraction ca ses, and thus can impose a sentence,

infractions are not punishable by imprisonment. See Government Code § 72190; Penal

Code § 19.6. In traffic infraction cases , commissioners are generally authorized to

impose fines not exceeding $250 and to order atten dance at traffic violator school. See

Vehicle Code §§ 42001(a) (punishment for traffic infractions) and 42005 (court-ordered

traffic violator school); People v. Lucas, 82 Cal. App. 3d 47, 51, 147 Cal. Rptr. 235

(1978) (punishment for traffic infraction is limited to a fine and attendance at traffic

school). Greater fines and actions involving the defendant ’s license are authorized by

statutes covering certain specific infractions. See, for example, Vehicle Code §§

42001.1 (disregarding traffic signal) and 42001.7 (littering).

In misdemeanor cases, commissioners’ sentencing powers are minimal. Government

Code § 72401(b) provides that a commissioner may order a defendant who pleads

guilty or nolo contendere to one of the misdemeanors specified in Vehicle C ode §

42001(b) to attend traffic violator school and to pay a fine not to exceed the bail

schedule amount for that offense. This section further states that a commissioner may

not impose express conditions of probation. In People v. Oaxaca, 39 Cal. App. 3d 153,

158, 114 Cal. Rptr. 178 (1974), it was noted that except for the limited situations

covered in Government Code § 72401(b), “sentencing, including imposition of

probation, is ... not a ‘subordinate judicial duty’ even when the defendant has pleaded

guilty.”

3. 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 (PC § 813 et seq.), conducting arraignments (PC § 825), setting

17

bail (PC §§ 822-823), making probable cause determinations (PC § 849), and

conducting preliminary hearings (PC §§ 858 -883).

The authority to perform magistrates’ duties is a power specifically limited to the judges

of the various courts. See Penal Code §§ 807 and 808. Penal Code § 807 defines a

magistrate as a person who has the power to issue an arrest warrant. Penal Code §

808 further specifies that magistrates are the judges of the Supreme Cour t, 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. The

exception is Government Code § 72190.1, which authorize s 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, 65 Cal. Rptr. 2d 401 (1997) (commissioner properly presided over an

arraignment for a traffic violation and entered a plea on behalf of the defendant).

II. The Scope of Commissioners ’ 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 litigant. Code of Civil Procedure § 259(d)4. 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, 360,

110 Cal. Rptr, 353 (1973).

The constitutional authority for temporary judges is found in Article VI, § 21 of the

California 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 o f the State Bar, sworn

and empowered to act until final determination of the cause.

4 In 2004, Code of Civil Procedure section 259 was amended to make the language of subdivision (d) consistent with the constitutional standard set forth in Article VI, § 21 for the appointment of temporary judges. Stats. 2004 (SB 1225); Chapter 49.

18

See also California Rules of Court, Rule 6.609 5, which 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. CRC Rule 6.609(b).

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 in to the

actual stipulation. See Government Code § 1360 (oath must be taken before entering

upon duties of office); Cal. Const., Art. XX, § 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 sentence. People v. Oaxaca, 39 Cal.

App. 3d 153, 159, 114 Cal. Rptr. 178 (1974) . A commissioner acting as a temporary

judge is not limited to performing the “subordinate judicial duties” set forth for

commissioners in Article VI, § 22. Oaxaca, 39 Cal. App. 3d at 165. Temporary judges

have full judicial powers and their orders are as final a nd nonreviewable as those of a

permanent judge. In re Mark L. , 34 Cal. 3d 171, 178, 193 Cal. Rptr. 165 (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, 651, 34 P.2d 760 (1934) ); a

motion to vacate a judgment based upon mistake, inadvertence, surprise or excusable

5 Effective January 1, 2007, Rule 6.609 is renumbered as Rule 10.700.

19

neglect, pursuant to Code of Civil Proced ure § 473 (Reisman v. Shahverdian, 153 Cal.

App. 3d 1074, 1094-1097, 201 Cal. Rptr. 194 (1984), Walker v. San Francisco Housing

Authority, 100 Cal. App. 4th 685, 692, 122 Cal. Rptr. 2d 758 (2002)) ; and a motion to

reconsider a demurrer which has been susta ined without leave to amend (McCartney v.

Superior Court, 223 Cal. App. 3d 1334, 1338 -1339, 273 Cal. Rptr. 250 (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, 235 Cal. Rptr. 746 (1987) (motion for reconsideration of

a preliminary injunction).

When the second proceeding is based upon a separate record independent of the ruling

in the stipulated cause, it is considered an “ancillary proceeding.” Sarracino v. Superior

Court, 13 Cal. 3d 1, 9 -10, 118 Cal. Rptr. 21 (1974); Nierenberg v. Superior Court, 59

Cal. App. 3d 611, 618, 130 Cal. Rptr. 847 (1976) (contempt hearing was ancillary to the

underlying cause and outside the scope of the parties ’ original stipulation). Absent a

new stipulation, the temporary judge for the initial proceeding lacks the power to hear an

ancillary proceeding. Reisman v. Shahverdian, 153 Cal. App. 3d at 1095. See also

Orange County Department of Child Support Services v. Superior Court , 129 Cal. App.

4th 798, 28 Cal. Rptr. 3d 877 (2005) (sanctions hearing was ancillary to contempt

hearing and therefore outside the scope of the original stipulation).

The case law dealing with the powers of commissioners as temporary judges has

tended to focus on the stipulations which empower the commissioners to act. The

major issues have concerned: the type of stipulation necessary, actions which

constitute de facto stipulation, identification of the “parties litigant” who must stipulate,

the failure to stipulate in prior driving under the influence proceedings, and the

limitations of stipulations in adjudicating contempt of court or in imposing sanctions.

One other area of concern is whether temporary judges may perform magistrates ’

functions. A discussion of these issues follows.

20

A. The Stipulation

1. Form of the Stipulation

A commissioner’s authority to act as a temporary judge emanates from the stipulation

by the parties to the proceedin g. Cal. Const., Art. VI, §21; People v. Tijerina, 1 Cal. 3d

41, 48-49, 81 Cal. Rptr. 264 (1969). The form of stipulation required is not specified in

the Rules of Court or in the Constitution. See, CRC Rule 6.609; Cal. Const., Art. VI,

§21. However, case law provides that a stipulation may be express or implied. See

Foosadas v. Superior Court, 130 Cal. App. 4th 649, 652, 30 Cal. Rptr. 3d 358 (2005) ; In

re Courtney H., 38 Cal. App. 4th 1221, 1227, 45 Cal. Rptr. 2d 560 (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 appellate court 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, 771 -72, 19 Cal.

Rptr. 576 (1993). Stipulations contemplate a voluntary and knowing assent. In re Frye,

150 Cal. App. 3d 407, 409, 197 Cal. Rptr. 755 (1983); Palmer v. City of Long Beach , 33

Cal. 2d 134, 142-143, 199 P.2d 952 (1948).

See also Rooney, 10 Cal. 3d at 360 ( a stipulation specifying only the conditions under

which a court may enter a judgment cannot be construed to be the equivalent of a

stipulation that judgment may be entered by a court commissioner acting as a

temporary judge).

2. 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, 766, 67 Cal. Rptr. 563 (1968). An implied stipulation, also

referred to as a de facto or tantamount stipulation, may be made if the proceeding

21

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. See also In re Horton, 54 Cal. 3d 82, 91, 284 Cal.

Rptr. 305 (1991) (an attorney may not participate in a trial before a commissioner

without objection and then claim that the court was without jurisdiction upon receiving

an unfavorable result).

This rule has been applied in a number of civil cases a nd 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 h eard by a commissioner, were tantamount to a

stipulation authorizing the commissioner hear the matter as a temporary judge.

Soforenko, 260 Cal. App. 2d at 766. 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,

298-299, 109 Cal. Rptr. 321 (1973).

In In re Brittany K., 96 Cal. App. 4th 805, 813, 117 Cal. Rptr. 2d 813 (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.

See also Walker v. San Francisco Housing Authority, 100 Cal. App. 4th 685, 122 Cal.

Rptr. 2d 758 (2002) (under local rules of court, a party is deemed to stipulate to a

commissioner acting as a temporary judge by failing to object in writing within 30 days

after the first pleading is filed in the action by that party).

In the criminal context, the de facto stipulation was first recognized in People v. Oaxaca,

39 Cal. App. 3d 153, 114 Cal. Rptr. 178 (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 condition s 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,

22

strongly urged trial courts, even when plea bargains are involved, to secure specific oral

or written stipulations. Oaxaca, 39 Cal. App. 3d at 165.

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 at 86. The facts of

the case indicate that defense counsel intended to file a stipulation, but simply

neglected to do so. In his petition, the defendant claimed that the trial before a

commissioner violated his state and federal Constitutional rights since he had never

personally stipulated to the commissioner. The Supreme Court rejected this claim.

Subsequently in 1995, the defendant contended on appeal that the record reflected a

total breakdown of the attorney-client relationship at the commencement of trial, and

thus served to rebut any inference of his having stipulated. The Court reiterated its

holding from the earlier petition, stressing that the attorney ’s conduct alone amounted to

a de facto stipulation. People v. Horton, 11 Cal. 4th 1068, 47 Cal. Rptr. 2d 516 (1995).

However, in Foosadas, the court 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 p arty

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. Foosadas, 130 Cal. App. 4th at 655 -656.

B. Parties Litigant Whose Stipulations Are Necessary

A temporary judge is empowered to proceed upon the stipulation of the parties litigant.

Cal. Const. Art. VI, § 21; Sarracino v. Superior Court , 13 Cal. 3d 1, 6 -8, 118 Cal. Rptr.

21 (1974) (as long as a “party litigant” appears and stipulates, a temporary judge may

proceed). 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.

23

In Bill Benson Motors, Inc. v. Macmorris Sales Corp ., 238 Cal. App. 2d Supp. 937, 944,

48 Cal. Rptr. 123 (1965), the court noted:

[T]he 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, 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. ” Sarracino, 13 Cal. 3d at 10.

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, 479, 31 Cal. Rptr. 30 (1963). See also Estate of Kent, 6 Cal. 2d 154, 162, 57 P.2d

901 (1936); Lint v. Chisholm, 121 Cal. App. 3d 615, 621 -622, 177 Cal. Rptr. 314 (1981).

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 CCP § 259(g); Reisman v. Shahverdian, 153 Cal.

App. 3d 1074, 1093, 201 Cal. Rptr. 194 (1984).

C. Stipulations and Prior Driving Under the Influence Convictions

The validity of a prior driving under the influence conviction pursuant to Vehicle Code §

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 Government Code §§ 72401(a) and 71622(d). See also People v.

Miner, 68 Cal. App. 3d Supp. 1, 4, 137 Cal. Rptr. 149 (1977).

Similarly, the validity of a prior conviction is occasionally challenged because th e

defendant did not stipulate to the commissioner for sentencing. Such challenges occur

24

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 § 23540 provides:

If any person is convicted of a violation of Section 2315 2 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 §§ 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. An error

in sentencing does not affect or alter the fact of conviction.

D. Stipulations in the Context of Contempt Proceedings

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, 664, 119 Cal. Rptr. 2d 376 (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, 178, 193 Cal. Rptr. 165 (1983). One such power is the

power to punish for contempt. See CCP §§ 177 and 178. This includes both the power

to adjudicate direct contempts, where the contemptuous act takes place in the

immediate view and presence of the court, and indirect contempts, where the

contemptuous act occurs outside of the court ’s presence. See CCP §§ 1211 -1217.

However, a stipulation’s inherent time limitations and the procedural aspects of

contempt tend to restrict the use of contem pt powers by a temporary judge. A

temporary judge is sworn and empowered to act “until final determination of the cause .”

25

Cal. Const. Art. VI, § 21. Thus, t he authority conferred by a stipulation commences

when the stipulation is entered into and termin ates 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, 132 Cal.

Rptr. 59 (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, 615, 130 Cal. Rptr. 847 (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 fo r indirect contempt. Nierenberg, 59

Cal. App. 3d 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 possibl e 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, 1017, 127 Cal. Rptr. 190 (1976)), or the failure of an individual to make

child support payments ordered by a temporary judge ( In re Frye, 150 Cal. App. 3d 407,

408-409, 197 Cal. Rptr. 755 (1983)).

E. Stipulations in the Context of Sanctions

A commissioner stipulated to as a temporary judge has full judicial powers, which

includes the power to impose sanctions. Estate of Ruchti, 12 Cal. App. 4th 1593, 1602,

26

16 Cal. Rptr. 2d 151 (1993). In Ruchti, a temporary judge, appointed and stipulated to

in probate proceedings, properly imposed sanctions upon a party ’s attorney for failure to

pursue common discovery devices after receipt of a meet -and-confer letter from the co-

executors’ attorney.

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, 240 Cal. Rptr. 489 (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).

While sanctions are another means, similar to contempt, which a court may utilize to

control its proceedings and ensure obedience to its orders , commissioners’ powers

have historically had little to do with directly controlling court proceedings. Until 1966 ,

the Constitution defined commissioners’ powers in terms of the authority to perform

“chamber business,” an old English term that refers to motions and matters that, while

pertaining to actions pending in court, were collateral in nature. Cal. Const. of 1849,

Art. VI, § 14. Those “chamber business” matters also became the foundation of

commissioners’ powers under the first version of Code of Civil Procedure § 259 in 1872.

Commissioners’ powers have been broadened by various statutes since 1966; however,

there has not been a statute enacted which either expressly authorizes or evidences the

intent to authorize commissioners to impose sanctions.

F. Stipulations and Magistrates ’ Functions

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 (PC § 813 et seq.), conducting arraignments (PC § 825), setting

bail (PC §§ 822-823), making probable cause determinations (PC § 849), and

conducting preliminary hearings (PC §§ 858 -883).

27

The authority to perform magistrates’ duties is a power specifically limited to the judges

of the various courts. See Penal Code §§ 807 and 808. Penal Code § 807 defines a

magistrate as a person who has the power to issue an arrest warrant. Penal Code §

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 magistrate ’s duties. Under case law, however,

a commissioner stipulated to as a temporary judge may conduct a preliminary hearing,

a power allocated solely to magistrates .

In Amos v. Superior Court, 182 Cal. App. 2d 343, 6 Cal. Rptr. 252 (1960), the court

determined that a temporary judge, sworn and stipulated to by the parties, had authority

to conduct a preliminary hearing. Amos was cited with approval by the California

Supreme Court in Sarracino v. Superior Court , 13 Cal. 3d 1, 10, 118 Cal. Rptr. 21

(1974) and People v. Haskett, 30 Cal. 3d 841, 858, 180 Cal. Rptr. 640, 640 P.2d 776

(1982),

The court in Amos emphasized the judicial nature of the determinations made at

preliminary hearings and the judicial nature of certain magistrates ’ functions. It held that

commissioners and attorneys acting as temporary judges may, upon stipulation of the

parties litigant, perform magistrates’ functions if they are essentially judicial. Amos, 182

Cal. App. 2d at 349-350.

Except for Amos, there appears to be no other case law on the question of temporary

judges’ performance of magistrates’ functions. However, an Attorney General’s Opinion

has concluded that a temporary judge may not issue arrest or s earch warrants. See 61

Ops. Atty. Gen. 487 (1978).

The Attorney General’s opinion concludes that a commissioner sworn as a temporary

judge is not a magistrate and, therefore, can not issue arrest or search warrants, which

statutorily may only be issued by magistrates.