In Re Frye

California Court of Appeal Dec 30, 1983 No. Crim. 16072Published

Before: Kaufman

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Holding. An order of contempt issued by a court commissioner acting as a temporary judge is void when there is no evidence of a voluntary and knowing stipulation by the parties as required by the California Constitution.

Issues

Whether a court commissioner may act as a temporary judge without a knowing and voluntary stipulation by the parties litigant.
Whether the contempt order is void in the absence of a valid stipulation.

Disposition. Annulled

Quotations verified verbatim against the opinion

“In the absence of a proper stipulation Commissioner Honn lacked authority to hear and determine the contempt proceeding and the order of contempt is void.”

“Manifestly, the constitutional requirement of a “stipulation of the parties litigant” as a prerequisite to a commissioner’s acting as judge pro tempore (Cal. Const., art. VI, § 21, supra) contemplates a voluntary and knowing assent.”

Opinion

KAUFMAN, J.

Petitioner, released on his own recognizance at the direction of this court pending these proceedings, is in the constructive custody of the Sheriff of Riverside County pursuant to an order of contempt of court for failure to make ordered child support payments issued by Carver Honn, Commissioner of the Riverside County Superior Court, purportedly acting as a temporary judge. On allegations the order of contempt was invalid on numerous grounds petitioner sought habeas corpus. We treated petitioner’s application as a petition for certiorari and issued the writ and an order to show cause. No return or other response to the order to show cause has been filed, and the matter is now before us for disposition, We conclude the order of contempt is void.

Section 21 of article VI of the California Constitution 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.”

The verified petition alleges and an accompanying declaration of petitioner’s trial attorney avers, both without contradiction, that although Commissioner Honn purported to hear the contempt proceeding as a temporary judge, neither petitioner nor his counsel stipulated Commissioner Honn might hear the matter in that capacity nor was aware Commissioner Honn was not a judge.

[409]

The reporter’s transcript of the hearing discloses no stipulation, nor any mention of the problem or the fact that Commissioner Honn is a commissioner rather than a judge. We have examined the trial court file and it contains no written stipulation. The purported contempt order, an unsigned minute order dated August 18, 1983, has a box marked opposite the words “Stipulated matter be heard by Court Commissioner as Judge Pro Tempore.” However, in view of the failure of either real party or respondent to deny the allegations in the petition or the averments in the attached declaration, the recital in the minute order must be attributed to a practice we are informed is followed by Commissioner Honn in such cases. Apparently there is a notice posted in the hearing room stating that unless some objection is voiced it will be deemed stipulated the commissioner may act in the capacity of judge pro tempore.

In Re Frye

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KAUFMAN, J.

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