Barfield v. Superior Court for Los Angeles County

• Decision Date: 21 May 1963
• Citation: 216 Cal.App.2d 476,31 Cal.Rptr. 30
• Court: California Court of Appeals Court of Appeals
• Parties: Roy Lee BARFIELD, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Ann R. BARFIELD, Real Party in Interest. Civ. 27212.

Page 30

31 Cal.Rptr. 30

216 Cal.App.2d 476

Roy Lee BARFIELD, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Ann R. BARFIELD, Real Party in Interest.

Civ. 27212.

District Court of Appeal, Second District, Division 4, California.

May 21, 1963.

Olson & Markey, by Christian E. Markey, Jr., Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Donald K. Byrne, Deputy County Counsel, for respondent Court.

Hahn, Ross & Saunders, by E. Loyd Saunders, Los Angeles, for real party in interest.

KINGSLEY, Justice.

Pursuant to a 'stipulation' executed by counsel for plaintiff, the default hearing on the complaint of real party in interest for a divorce was held by Commissioner John Leslie Goddard, purportedly sitting as a judge pro tempore of respondent court. The only issue before the court is the validity of Commissioner Goddard's designation as such judge pro tempore. If he was validly designated, the decree rendered by him is also valid and should stand; if he was not validly so designated, the decree is void and should be vacated. It is admitted that Commissioner Goddard is a member of the bar, ¹ that he was duly appointed as a commissioner of respondent court, that he had been appointed by the presiding judge of respondent court to act as a judge pro tempore in all matters assigned to him by any of the judges of the court, that he had been assigned to hear the Barfield divorce by the judge presiding in the department to which that case had been assigned for hearing, and that he had taken an oath of office to act as judge pro tempore.

The determination of this case turns on the meaning of two sections of the Constitution of this state and of two subsections of section 259a of the Code of Civil Procedure, together with Rule 244 of the California Rules of Court.

Section 5 of Article 6 of the state Constitution provides (so far as is here pertinent):

'Upon stipulation of the parties litigant or their attorneys of record a cause in the superior court or in a municipal court may be tried by a judge pro tempore who must be a member of the bar sworn to try the cause, and who shall be empowered to act in such capacity in the cause tried before him until the final determination thereof. The selection of such judge pro tempore shall be subject to the approval and order of the court in which said cause is pending and shall also be subject to such regulations and orders as may be prescribed by the Judicial Council.'

Section 14 of Article 6 provides (so far as here pertinent):

'The Legislature may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law.'

In addition to a grant of powers to court commissioners in section 259 of the Code of Civil Procedure (which powers are not herein involved), the Legislature has provided that, for counties having a population of over 900,000 inhabitants, the commissioners shall have certain additional powers, two of which bear upon the immediate matter. Subdivision 4 of section 259a grants the power

'To act as judge pro tempore when otherwise qualified so to act and when appointed for that purpose; provided, that while acting as such he shall receive no compensation therefor other than his compensation as commissioner;'

Subdivision 6 of the same section grants the power

'When ordered by the court appointing him so to do, to hear, report on and determine all uncontested actions and proceedings other than actions for divorce, maintenance or annulment of marriage.'

Pursuant to its constitutional power to prescribe 'regulations and orders' relating to judges pro tempore, the Judicial Council has promulgated Rule 244 of the California Rules of Court, reading as follows:

'(a) The stipulation of parties litigant that a case may be tried by a judge pro tempore shall be in writing and shall set out in full the name and office address of the member of the State Bar agreed upon to act as judge pro tempore, and shall be submitted to the presiding judge, or to the judge in whose department the case is pending in courts which do not have a presiding judge. If the member of the State Bar agreed upon consents so to act and if his selection is approved by the judge, the approval and order designating the person selected as judge pro tempore...