Metropolitan News-Enterprise


Tuesday, November 26, 2002


Page 1


Court of Appeal Warns Against Misuse of Commissioners


By ROBERT GREENE, Staff Writer


This district’s Court of Appeal yesterday rejected an assignment of a family law matter to a commissioner and took the opportunity to caution trial courts against being too free in unloading unwanted hearings on subordinate judicial officers.

Although Code of Civil Procedure Sec. 259(b) empowers commissioners to “take proof and make and report findings thereon as a matter of fact,” Presiding Justice Arthur Gilbert of Div. Six said, courts must not stretch such a fact-finding reference into a full decision-making hearing—at least, not without stipulation from the parties.

“Unless both parties consent, the court may not, under the guise of a reference, cause the lion’s share of a case to be heard by a referee,” Gilbert said.

That is in effect what the San Luis Obispo Superior Court did when it assigned a show-cause hearing on a domestic violence restraining order, child custody, visitation and related matters to a commissioner.

The subject of the order, Randall Lane Settlemire, moved for peremptory disqualification of Commissioner Lane Stewart under Sec. 170.6, only to have the matter reassigned to another commissioner—Ginger Garrett.

Settlemire moved to vacate the assignment, saying he had the right to present his case to one of the court’s 11 judges.

But the motion was denied, and the court modified its order to clarify that it was a referral under Sec. 259(b).

Gilbert said Settlemire had the right to insist on a judge, since the referral to a commissioner was not just for a factual determination on a larger dissolution case, but was to make rulings that would have a profound impact on Settlemire and his estranged wife.

The San Luis Obispo court, which took the unusual step in this case of appearing as a respondent in the appeal, turned the case over to the commissioner to resolve all facts.

“This was an abdication of the court’s judicial obligation,” Gilbert said.

Commissioners play an integral role in trial courts, handling preliminary matters that judges don’t have time for and often sitting as judges when the parties agree to have their cases before them.

In an era of declining resources, courts rely on commissioners and referees to handle a good-sized chunk of the caseload.

But commissioners are not selected by the governor or elected by the voters, but are hired by the judges of each trial court. They are paid somewhat less than judges, and can handle trials and many other matters only on stipulation from both parties.

The San Luis Obispo Superior Court has three commissioners. The Los Angeles Superior Court, the nation’s largest trial court, has 134.

“It is a fact of judicial life that commissioners are often given assignments that judges do not want to perform,” Gilbert said. That often includes family law matters, which can be demanding and often quite hostile, he noted

Gilbert said some judges consider a family law assignment to be “a form of banishment to the lower circles of the judicial inferno.”

In some cases an experienced commissioner is actually a better choice for the parties than the novice judge who often draws the assignment because of lack of seniority to grab a better assignment, Gilbert said. But it is still up to the parties to choose, he remarked.

Gilbert noted that the Judicial Council set up a working group on subordinate judicial officers two years ago to study the role of commissioners and others. The group considered, but rejected, a change in the law permitting more family law matters to be handled by commissioners without stipulation.

The group’s report noted that when parties refuse to stipulate, some family law judges order the same commissioner to sit as a referee to hear preliminary matters.

The group found the practice to be an inefficient use of judicial resources, the presiding justice said.

The case is Settlemire v. Superior Court, Settlemire RPI, B158416.


Copyright 2002, Metropolitan News Company