Van De Kamp, 042484 CAAGO, AGO 83-913

• Case Date: April 24, 1984
• Court: California

JOHN K. VAN DE KAMP Attorney General JOHN T. MURPHY, Deputy Attorney General AGO 83-913 No. 83-913 California Attorney General Opinion Office of the Attorney General State of California April 24, 1984          THE HONORABLE JOHN J. MEEHAN, DISTRICT ATTORNEY, ALAMEDA COUNTY, has requested an opinion on the following questions:          1. What duties may be assigned to a municipal court commissioner, who is not a temporary judge, when he or she is conducting an arraignment in a criminal case pursuant to Government Code section 72190.1?          2. Does a municipal court commissioner who is not a temporary judge have the authority to preside over the preliminary hearing of a defendant charged with a felony offense?          CONCLUSIONS          1. A municipal court commissioner, who is not a temporary judge, when he or she is conducting an arraignment in a criminal case pursuant to Government Code section 72190.1, may be assigned only subordinate judicial duties, which are duties not involving serious, complex or diverse issues of fact or law.          2. A municipal court commissioner who is not a temporary judge does not have the authority to preside over the preliminary examination of a defendant charged with a felony offense.          ANALYSIS          Article VI, section 22, of the California Constitution provides:

"The Legislature may provide for the appointment by trial courts of records of officers such as commissioners to perform subordinate judicial duties."

         The Legislature is thus empowered to enact statutes which allow subordinate judicial duties to be assigned to court commissioners.1 A subordinate judicial duty has been described as one "'placed in a lower order, class or rank; holding a lower or inferior position . . . .'" (People v. Lucas (1978) 82 Cal.App.3d 47, 54.) The Lucas court said that in separating a subordinate judicial duty from other judicial duties the seriousness, complexity and diversity of the factual and legal issues must be examined. (Id, at pp. 50-56.) A strong presumption, however, favors the Legislature's own interpretation of the above seminal provision of the Constitution. (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 365-366.)          The duties of court commissioners have been spelled out by the Legislature in section 259 of the Code of Civil Procedure:2

"Subject to the supervision of the court every court commissioner shall have power to do all of the following: "(1) Hear and determine ex parte motions, for orders and alternative writs and writs of habeas corpus in the superior court for which the court commissioner is appointed. "(2) Take proof and make and report findings thereon as to any matter of fact upon which information is required by the court. Any party to any contested proceeding may except to the report and the subsequent order of the court made thereon within five days after written notice of the court's action, a copy of the exceptions to be filed and served upon opposing party or counsel within the five days. The party may argue any exceptions before the court on giving notice of motion for that purpose within 10 days from entry thereof. After a hearing before the court on the exceptions, the court may sustain, or set aside, or modify its order. "(3) Take and approve any bonds and undertakings in actions or proceedings, and determine objections to the bonds and undertakings. "(4) Administer oaths and affirmations, and take affidavits and depositions in any action or proceeding in any of the courts of this state, or in any matter or proceeding whatever, and take acknowledgments and proof of deeds, mortgages, and other instruments requiring proof or acknowledgment for any purpose under the laws of this or any other state or country. "(5) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose. While acting as temporary judge the commissioner shall receive no compensation therefor other than compensation as commissioner. "(6) Hear and report findings and conclusions to the court for approval, rejection, or change, all preliminary matters including motions or petitions for the custody and support of children, the allowance of temporary alimony, costs and attorneys' fees, and issues of fact in contempt proceedings in divorce, maintenance, and annulment of marriage cases. "(7) Hear, report on, and determine all uncontested actions and proceedings other than actions for divorce, maintenance, or annulment of marriage. "(8) Charge and collect the same fees for the performance of

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