October 2002

The Authority of Superior Court Commissioners

At trial-setting on the involuntary mental-commitment calendar, one of the respondents was showing the effect of having not taken her medication.

Commissioner: "You have the right to an attorney in this matter.… You have the right to a trial in front of a commissioner, such as myself, or a jury trial. …"

Respondent (shouting): "You're not a real judge, I want to see a real judge. … The hospital is poisoning my food. …"

Commissioner: "You may have a hearing in front of a commissioner and then if you are unhappy with the result, you may ask a judge to review the commissioner's decision. Or you can have a jury decide whether you should stay in the hospital; a judge will preside over the matter, but the jury will make the final decision."

Respondent (sullenly): "Well, then I want a real commissioner."

Commissioner: "I am a real commissioner … I understand that you do not want a jury trial; I will set your hearing in one week before myself. Court is in recess."

(The commissioner breathes a sigh of relief and thinks: "Lucky for me she didn't ask what a real commissioner is. …")

This article is written to provide some information on the use of court commissioners in Washington superior courts. In addition to the usual jurisdictional limits on a judicial officer's authority, superior court commissioners are constrained by limitations imposed by the Washington State Constitution, as well as by the policies and practicalities of the particular superior court.1 When not sitting as a "constitutional commissioner," the powers, authority and jurisdiction of a commissioner are also limited by statute.2 

It is rare to see an actual direct attack on the authority of a commissioner to rule or hear a particular case. A writ of prohibition to the Washington State Supreme Court is the recognized process for challenging a commissioner's powers — not simply a motion made to the commissioner or the revising judge.3 

Although this article focuses on constitutional and statutory limitations to a court commissioner's authority, a commissioner is not only a judicial officer4 but is an employee of the court. They serve at judges' directions, pursuant to local court rule, administrative policy or informal directive.5 Therefore, while there may be no constitutional or statutory impediment to a commissioner hearing a particular type of matter, commissioners are usually limited to particular types of calendars for reasons of policy and practicality. For example, since all commissioner decisions are subject to the right of revision, most courts assign commissioners to motions and short trials, where the impact of a successful revision on the case will not be so dramatic.

There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.

Constitution of the State of Washington, Article IV, Sec. 23.

The scope of constitutional commissioners' authority and powers is also delineated by RCW 2.24.040, although given the breadth of the constitutional authority, this section of the statute appears to be largely redundant. The powers granted by the Constitution have been deemed self-executing. Furthermore, the Legislature can add to a constitutional commissioner's powers but cannot subtract from them.6 

No more than three "constitutional commissioners" may sit at any one time in a particular county's superior court. However, court commissioners need not be permanently hired as a constitutional or statutory commissioner, but may be redesignated periodically to suit the needs of the court and the particular calendar. For example, Spokane County Superior Court has six to eight court commissioners who rotate every few months among all of the "commissioner" calendars. Other courts may allow a commissioner normally sitting on a "statutory" calendar, such as family law motions, to switch with a constitutional commissioner for a day or a week at a time to accommodate special sets and calendaring needs. However, court staff must be careful to ensure that no more than three court commissioners at any one time are handling matters that can be heard only by constitutional commissioners.

While the scope of authority was somewhat in flux in early opinions by the state Supreme Court, it now appears well-settled that a constitutional commissioner has the same authority (subject to the right of revision) held by a Washington territorial judge when sitting "at chambers" between terms. These courts existed during Washington's territorial days and before adoption of the Washington State Constitution. Unlike Washington superior courts, territorial courts were only "open" during specific terms. When closed, the territorial judges sat "at chambers" and could: "… entertain, try, hear and determine, all actions, causes, motions, demurrers, and other matters not requiring a trial by jury. …"7 

Early Supreme Court cases interpreting constitutional commissioners' powers indicated that they derived their authority in three ways — they sat as a territorial judge at chambers, they could hear depositions, and additionally could perform

"… such other business connected with the administration of justice as may be prescribed by law." Subsequent case law has interpreted this grant of authority very broadly. It appears that the only difference between a superior court judge's and a constitutional commissioner's authority to rule in a particular matter is that: 1) a constitutional commissioner's ruling is subject to the right of revision; and 2) a constitutional commissioner may not preside over a jury trial (unless accepted by the parties as a judge pro tem).

Case law has generally interpreted the third source of power, "acting in the administration of justice," as synonymous with specific statutory authorization of a commissioner to hear or take action. However, even where the operative statute does not recognize the authority of a court commissioner to hear the matter, up to three court commissioners in a county can hear those matters that could have been heard by a territorial judge at chambers. For example, an early case held that a court commissioner could hear an action to modify alimony even without a specific grant of statutory authority.8 

Although there is a suggestion in one early case that commissioners may not preside over matters required to be heard "in open court," this holding appears to have been largely disregarded in later cases.9 To the extent that this decision reached the constitutional issue, it was questioned in Claypool,10 and appears to have been wholly disregarded by later courts. Later cases have uniformly construed constitutional commissioners' powers to act "… in any matter not requiring a trial by jury, subject to revision by a superior court judge."…11  This is true even where the case might ultimately end up before a jury, but the jury has either been waived or has not yet been enpanelled.12 

B. Statutory commissioners.13 

Statutory commissioners have all powers allowed to constitutional commissioners provided they are statutorily designated to act.

Although the Constitution limits each county to three commissioners, courts may appoint any number of additional commissioners to hear those types of actions so designated by statute.14 

RCW 2.24.040 provides the broadest grant of statutory authority to court commissioners. Under this statute, any number of commissioners may be assigned to hear and make determinations in the following types of matters:15 probate; defaults and default judgments; temporary restraining orders, injunctions and related bonds; supplemental proceedings; adoption of children; dissolution of incorporations; civil adult and juvenile commitments; all ex parte and uncontested civil matters; and small-claims appeals.

In adult criminal cases, commissioners may preside over arraignments, preliminary appearances, initial extradition hearings and noncompliance proceedings; accept pleas; make probable-cause determinations; and generally make pretrial rulings as enumerated therein.

In addition to the matters specified above, court commissioners are specifically authorized to preserve the order of court and to punish for contempt of court. They may also take acknowledgements and proofs of deeds, take depositions, and authenticate with an official seal.

Since 1949, RCW 26.12.050 has allowed superior courts to appoint an unlimited number of attorneys to act as family court commissioners to "… assist the family court in disposing of its business."

RCW 26.12.060 allows family court commissioners to "… exercise all the powers and perform all the duties of court [constitutional] commissioners." Family-court proceedings are defined as: (1) any proceeding under this title [RCW 26] or any proceeding in which the family court is requested to adjudicate or enforce the rights of the parties or their children regarding the determination or modification of parenting plans, child custody, visitation, or support; or the distribution of property or obligations; or (2) concurrent with juvenile court, any proceeding under Title 13 or Chapter 28A.225 RCW.

Family court commissioners also have the "power, authority, and jurisdiction" to conduct hearings under Title 13 and RCW 28A.225, subject to the right of revision.16 Title 13 encompasses all juvenile court actions including juvenile-offender proceedings, dependencies, terminations of parental rights, youth-at-risk and child-in-need-of-services proceedings. RCW 28A. 225 is the truancy statute.

Although Ordell v. Gaddis indicated that family court commissioners' powers were more limited than those of a constitutional commissioner, the only distinction made in Ordell or any other reported case found by this author is that the "statutory" or family court commissioner acts pursuant to specific statutory authority.17 Given the breadth of RCW 26.12 and RCW 13.04. 021, a "family court" or "statutory" commissioner has the same authority as a constitutional commissioner in a proceeding under Title 26 or Title 13, or truancy action under RCW 28A.225.

Although there is no constitutional limit on the number of statutory commissioners, their authority is prescribed by statute. The statute or local rules may require that they be appointed pursuant to a vote of the judges of that superior court, or may require action on behalf of the governing body of that county.18 

RCW 2.24.050 provides:

All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written notice, filed with the Clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days after the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.

Although a revision must be filed within 10 days of the entry of order or judgment, it appears logical and is specifically spelled out by some local court rules that a timely motion for reconsideration will toll the time period.19 

Although a commissioner's decision is not final until 10 days from entry of the order, a decision may encompass issues that will become moot before a revision can be heard on the matter. For example, a commissioner may order a person to be involuntarily committed for 14 days under the Involuntary Treatment Act. A commissioner may order persons to be jailed until they satisfy conditions for release under a civil contempt order, may detain juveniles after finding them guilty of a criminal offense, or may order property to be sold or money paid pursuant to a settlement or dissolution decree.20 

Although there does not appear to be any case law directly on point, it is customary that a motion for revision does not automatically stay a commissioner's decision.21 The party seeking revision is required to affirmatively seek a stay from the commissioner or judge assigned to hear the revision (or the judge who assigns out the revision). Obviously, the practice of using commissioners to handle certain types of proceedings, such as civil commitment hearings, would be undercut if a motion for revision resulted in an automatic stay.22 

A commissioner's decision becomes a final decision of the superior court unless a motion for revision is filed within 10 days.23 An aggrieved party may move to revise within the 10 days, and, after a decision upon revision is made, may move for appeal of the judge's decision within 30 days of entry of the judge's order. Or the aggrieved party may appeal the commissioner's decision directly without seeking revision.24 In the absence of a timely demand for revision, appellate review of a commissioner's decision is the same as review of a superior court judge's decision.25 

Where the evidence before the commissioner does not include live testimony, the superior court judge's review of the record is de novo.26 Specifically, a motion for revision of a support-modification trial heard on affidavits alone is de novo as to the facts.27 

Case law is in flux as to what standard of review should be applied upon revision when the commissioner hears live testimony, enters findings of fact and conclusions of law, and the proceedings are recorded.28 Div. III construed State ex rel. Biddinger v. Griffiths, 137 Wash. 448, 242 Pac. 969 (1926), and other early Supreme Court cases to determine that no deference should be given to a commissioner's findings of fact and that the standard for review on a motion for revision is de novo.29 Although In re Smith was decided in 1973 and cited by several subsequent cases, it has come under sharp criticism in recent years; recent dicta by the Supreme Court has appeared to limit its holding.

Judge Hicks has argued that In re Smith's holding is not only unrealistic and irrational in its application, but is a misinterpretation of Biddinger: "Do we really wish that no deference be given to those factual findings [based on evaluating credibility of witnesses' testimony] and that the judge be able to freely substitute inferences from the cold record, without any obligation or deference to the fact finder who saw the live presentation?"30 

In his article, Judge Hicks also argues that In re Smith and its progeny should be overruled or limited and that a commissioner's factual findings, at least where based on live testimony, should be tested against the "substantial evidence" standard on revision. He suggests a similar review standard as used by a superior court's review of an administrative agency decision.31 

Although our Supreme Court has not had occasion since Judge Hicks' article was published to address the issue squarely, its dicta has signaled very clearly approval for his analysis. "In cases such as this one, where the evidence before the Commissioner did not include live testimony, then the superior court judge's review of the record is de novo."32 Division III of our court of appeals also quoted Judge Hicks' article for the same proposition, but again in a case where the commissioner did not hear live testimony.33 

However, Division I of the court of appeals recently reversed a trial court's determination in a juvenile-offender proceeding by holding that it was ineffective assistance of counsel where the juvenile's attorney failed to move for timely revision of the commissioner's ruling, despite the right of review to the appellate courts. One of the factors in the court's decision was its opinion that a timely motion for revision would have entitled the juvenile to a de novo review of both the findings and conclusions of law.34 How a full de novo review, including evaluation of witness credibility, can be accomplished when the trial judge is listening to the taped recording rather than observing the witnesses is not made clear. Unpublished decisions from other divisions suggest that there may not be unanimous support for the Wicker position.

Regardless of the standard of review to be applied, failure to record the proceedings may require, upon a revision being filed, a new hearing. Minute entries by the court clerk are insufficient to sustain a record upon appeal, at least with respect to cases involving serious due-process concerns such as paternity actions.35 If the trial or hearing was heard on affidavits, this may merely result in re-argument. If oral testimony was taken, however, failure to record the proceeding may require a completely new hearing.

Regardless of whether live testimony is taken and what standard is applied to the facts, review of the legal conclusions is de novo; no special deference is accorded to the commissioner's legal conclusions.36 

Recent decisions concerning revision have centered on whether the revising judge should or may consider new evidence not submitted to the commissioner. Although earlier cases seemed to indicate that new evidence could be considered, recent cases have sharply limited what can be considered, and instead have favored either a review strictly on the record presented to the commissioner or a remand back to the commissioner who heard the case to supplement the record.37 

While both In re Moody38 and In re Bellanich39 stated that the revising judge cannot as a general rule consider evidence not presented to the commissioner, remand to the commissioner to hear new evidence should be utilized sparingly. Both cases indicated that "if appropriate the judge may remand to the commissioner." This may be in part a reaction to Judge Hicks' article criticizing earlier cases as implying that remand was never appropriate. However, using well-established principles embedded in appellate remands, remand for the purposes of considering new evidence presumably should only be allowed where the requirements of CR 59 and CR 60 are complied with, i.e., the moving party is able to demonstrate the presence of material "newly discovered evidence" which could not have with reasonable diligence been discovered and produced at the hearing.

The problems of when jeopardy attaches to a commissioner's ruling and under what circumstances a prosecutor may appeal a commissioner's decision in a criminal case are beyond the scope of this paper and are simply noted. See Judge Hicks' law review article for an analysis of the problem.40 

The statutory right to unilaterally remove a judge from hearing a case under RCW 4.12.040 and .050 has been held not to apply to commissioners. Absent a showing of actual prejudice or conflict, the aggrieved party's sole remedy is that of revision or appeal.41 Given that court commissioners are bound to the same canons of ethics as judges, they, of course, may be required to recuse themselves when there is an actual appearance of unfairness or conflict.

C. Court may appoint pro tem commissioners, although appointments may be limited.

The court has the inherent power to appoint pro tem commissioners to serve in the place of temporarily absent, regularly appointed commissioners.42 

In Division I or II, an attorney, while appointed to or serving as a paid guardian ad litem, may not serve simultaneously as a commissioner or judge pro tem in any judicial districts with a population in excess of 100,000 people.43 

Commissioner Kimberley Prochnau has sat on every commissioner calendar on the King County Superior Court bench since 1994, including juvenile offender, BECCA, family law, civil commitments, ex parte, probate and guardianships. She graduated from the University of Puget Sound Law School in 1982.

1. Credit should be given to the very thorough article by Thurston County Superior Court Judge Richard Hicks, which has since been cited by the Washington State Supreme Court. Power, Removal, and Revision of Superior Court Commissioners, Richard D. Hicks, 32 Gonz. L. Rev. (1996-70); (cited by In re Moody, 137 Wn.2d 979; 976 P.2d 1240 [1999]). The author also wishes to thank Judge Joan DuBuque for her editing of this article.

2. A court commissioner should not be confused with what was formerly referred to as a "commissioner" under CR 70. See also, RCW 6.28. The rule was changed to dispel any such confusion; the court may appoint any suitable person to execute a conveyance or deliver documents to fulfill the requirements of a court order.

3. Ordell v. Gaddis, 99 Wn.2d 409, 411, 662 P.2d 49 (1983).

4. As a judicial officer, a court commissioner is bound by the Code of Judicial Conduct. CJC, Application of the Code of Judicial Conduct.

5. Some superior courts have adopted local administrative rules governing court commissioners and specifying their duties. See, e.g., PCLR 0.4; KCLR 0.4.

6. Howard v. Hansen, 49 Wash. 314, 318, 95 Pac. 265 (1908).

7. State ex rel. Lockhart v. Claypool, 132 Wash. 374, 376, 232 Pac. 351 (1925).

8. State ex rel. Lockhart v. Claypool, supra, 132 Wash. at 376.

9. State v. Philip, 44 Wash. 615; 87 Pac. 955 (1906); see, Hicks, supra, at 32 Gonz. L. Rev. at 11 (commissioner had no authority to accept a criminal plea where statute requires the plea be taken "in open court").

10. Supra, 132 Wash. at 376.

11. State v. Karas, 108 Wn. App. 692, 701-2; 32 P.3d 1016 (Div. II, 2001) (despite lack of specific statutory authority under RCW 26.50 to hear permanent protection orders, within constitutional authority of court commissioners to do so; no distinction drawn between constitutional and statutory commissioners); In Re Olson, 12 Wn. App. 682, 686; 531 P.2d 508 (Div. III, 1975) (holding that since a jury trial is not required in a juvenile proceeding, it is within the constitutional power of court commissioners to hear juvenile matters).

12. State v. Goss, 78 Wn. App. 58, 59, 895 P.2d 861 (Div. II, 1995) (court commissioner may issue a criminal search warrant).

13. It appears to be more descriptive to use the terms "constitutional commissioners" and "statutory commissioners," as commissioners may be authorized by statute to do far more than what the family court statute contemplates. The Legislature has also used the term "court commissioners" to describe family court commissioners, as well as commissioners authorized to act pursuant to other statutes. Cf., RCW 26.12.060; RCW 2.24.010.

14. Ordell v. Gaddis, 99 Wn.2d 409, 412, 662 P.2d 49 (1983).

15. The following cases specifically affirm the authority of court commissioners to act in specific types of actions: civil involuntary commitment proceedings, Nichols v. Severtson, 39 Wn. 2d. 836 (1951); deprivation (termination ) of parental-rights trials, In Re Olson, 12 Wn. App. 682 (1975); taking of acknowledgements, Ankeny v. Pomeroy Grain Growers, 170 Wash. 1 (1932); modification of alimony (maintenance) provisions in divorce decree, State ex rel. Lockhart v. Claypool, 132 Wash. 374 (1925); supplemental proceedings, Howard v. Hansen, 49 Wash. 314 (1908); jury selection, State v. Wenatchee Holding Co., 169 Wash. 535 (1932); issuance of search warrant, adult criminal case, State v. Goss, 78 Wn. App. 58 (Div. II, 1995); and paternity hearings, State v. Woods, 72 Wn. App. 544 (1994). There are numerous other cases where commissioners' rulings have been affirmed upon appeal without the issue being raised as to their authority to act in a particular proceeding.

16. RCW 13.04.021; see also, RCW 26.12.010.

17. Ordell, supra, 99 Wn.2d at 412.

18. See State v. Moore, 73 Wn. App. 805; 871 P.2d 1086 (Div. II, 1994) (creation of office of district court commissioners requires county to provide for the number and location of commissioners; appropriation of funds for commissioners to be hired insufficient to demonstrate compliance with statute).

19. See CR 59; KCLR 7(b)(7)(vi).

20. State v. Goss, 78 Wn. App. 58, 59, 895 P. 2d 861 (Div. II, 1995) (commissioner may issue search warrant even though warrant will be executed before revision can be had; citing with approval practice of using commissioners to hear civil-commitment, child-support and juvenile-offender proceedings even though decisions may take effect before revision can be heard).

21. Although Judge Hicks' law review article cites one court case for the proposition that commissioners' orders are stayed by a motion for revision, a more logical interpretation is that a motion for revision stays not the ruling but application of the speedy-trial rule in juvenile offense proceedings. See State v. Lawley, 32 Wn. App. 337 (Div. III, 1982); see also, In Re Smith, 117 Wn.2d 263 (1991) (construing JuCr 7.8 amendments thereto adopted after Lawley as automatically tolling speedy time period when motion for revision is filed).

22. KCLR 7(b)(7)(B)(iv) was amended in 2001 to specifically provide that all types of orders entered by commissioners remain in effect pending a hearing on revision, unless otherwise ordered. See State v. Goss, supra, 78 Wn. App. at 59 (commissioners have the authority to hear civil-commitment matters even though order of commitment may expire before a revision hearing is held).

23. RCW 2.24.050.

24. In re Guardianship of Bellanich, 43 Wn. App. 345, 348-349, 717 P.2d 307 (Div. I, 1986).

25. Dependency of B.S.S., 56 Wn. App. 169, 782 P.2d 1100 (Div. II, 1989).

26. In re Moody, 137 Wn.2d 979, 993 (1999).

27. In re Balcom, 101 Wn. App. 56, 59, 1 P.3d 1174 (Div. III, 2000).

28. As of June 17, 2002, an amendment to the King County Local Rules is pending before the Supreme Court to delete any reference to the standard of review to be applied on a motion for revision. KCLR 7(b)(7).

29. In re Smith, 8 Wn. App. 285, 288-289, 505 P. 2d 1295 (Div. III, 1973).

30. Hicks, supra, 32 Gonz. L. Rev. at 30.

31. See, In re Electric Lightwave (Consolidated Cases), 123 Wn.2d 530, 542-3, 869 P.2d 1045 (1994) (discussion of substantial evidence standard in review of administrative agency decisions).

32. In Re Moody, supra, 137 Wn.2d. at 993.

33. In Re Balcom, supra, 101 Wn. App. at 59.

34. State v. Wicker, 105 Wn. App. 428, 432-433, 20 P.3d 1007 (Div. I, 2001).

35. State ex. rel. Henderson v. Woods, 72 Wn. App. 544, 550-551, 865 P.2d 33 (Div. II, 1994).

36. State v. Smith, 8 Wn. App. 255, 505 P.2d 1295 (1973).

37. In re Moody, supra, 137 Wn.2d at 992-993; In re Balcom, supra, 101 Wn. App. at 59.

38. Supra, 137 Wn.2d at 992-993.

39. Supra, 101 Wn. App. at 59.

40. Hicks, supra, 32 Gonz. L. Rev. at 32.

41. State v. Espinoza, 112 Wn.2d 819, 826, 774 P.2d 1177 (1989).

42. Ordell v. Gaddis, supra, 99 Wn.2d at 410 (1983); Lake v. Butcher, 37 Wn. App. 228, 232, 679 P.2d 409 (Div. I, 1984).

43. RCW 2.08.185.