§53.2.5 Purpose and Procedure

• Jurisdiction: Washington

§53.2.5 PURPOSE AND PROCEDURE

Article IV, §23 of the Washington Constitution and Chapter 2.24 RCW set forth the process of appointment and powers of superior court commissioners, as well as the process for revising a commissioner's decision.

(1) Scope of authority—"constitutional commissioners"

The Washington Constitution, article IV, §23, provides as follows:

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.

Under this provision, court commissioners have the authority of superior court judges, subject to two important exceptions: they cannot preside over jury trials (unless the parties agree to accept them as a pro tem judge), and their decisions are subject to an extra level of review, the right of revision.

This constitutional authority has been broadly construed to grant commissioners the power to act in all matters not requiring a trial by jury, provided they are sitting either as a constitutional commissioner or in a proceeding governed by a statute that authorizes the use of commissioners. State v. Karas, 108 Wn.App. 692, 701-02, 32 P.3d 1016 (2001) (despite lack of specific statutory authority, it is within constitutional authority of court commissioners to issue protection orders; no distinction drawn between constitutional and statutory commissioners);/n re Olson, 12 Wn.App. 682,686,53lP.2d 508 (holding that because a jury trial is not required in a juvenile proceeding it is within the constitutional power of court commissioners to hear juvenile matters), review denied, 85 Wn.2d 1010 (1975). This is true even when the case might actually ultimately end up before a jury, but the jury has either been waived or has not yet been empanelled. State v. Goss, 78 Wn.App. 58, 59, 895 P.2d 861 (1995) (court commissioner may issue a criminal search warrant). The legislature can add to a constitutional commissioner's powers but cannot subtract from them. Howard v. Hanson, 49 Wash. 314, 318, 95 P. 265 (1908).

RCW 2.24.040 enumerates the authority of court commissioners to hear and make determinations in a variety of matters.

Comment: Although there are arguments to the contrary, RCW 2.24.040 is commonly understood to be an attempt to enumerate the powers of constitutional commissioners rather than to authorize courts to appoint statutory commissioners to exercise such powers. Read as such, it is largely superfluous given modern-day interpretations of the broad grant of authority under the state constitution. See §53.2.5(1), above. However, some proceedings referenced under RCW 2.24.010 are of a type that may be heard by statutory commissioners pursuant to other statutes—e.g., adoption proceedings may be heard by "family court commissioners" pursuant to RCW 26.12.050 and .060.

(2) Scope of authority—"statutory commissioners"

The legislature also has authorized courts to employ both full-time and pro tem judicial officers to address specific types of cases or matters, such as family law, mental illness, juvenile court actions, and certain types of criminal proceedings. Such commissioners are commonly referred to by the type of action, i.e., "criminal commissioner" or "family court commissioner," but are not "court commissioners" for the purposes of the constitutional limitations of three commissioners per county. See Ordell v. Gaddis, 99 Wn.2d409,412, 662 P.2d 49 (1983). Some counties use the same judicial officers to fulfill a variety of roles at various times, depending on the needs of the court. Statutes authorizing the use of commissioners tend to be read broadly. Karas, 108 Wn.App. at 701-02 (despite lack of specific statutory authority, the court held it was within constitutional authority of court commissioners to hear domestic violence protection orders.); In re Dependency of A.K., 162 Wn.2d 632, 646, 174 P.3d 11 (2007).

Statutory commissioners are subject to the same limitations as constitutional commissioners: they may not hear jury trials and their rulings are subject to the right of revision. See §53.2(5)(1), above.

(a)RCW 2.24.010—criminal commissioners

The Washington legislature in 2009 amended RCW 2.24.010 to authorize specifically the appointment of criminal commissioners to preside over a variety of criminal hearings but only in counties with populations in excess of 400,000 and where authorized by the county legislative authority. (These duties are listed as follows: "to preside over arraignments, preliminary appearances, initial extradition hearings, and noncompliance proceedings pursuant to RCW 9.94A.6333; accept pleas if authorized by local court rules; appoint counsel; make determinations of probable cause; set, amend, and review conditions of pretrial release; set bail; set trial and hearing dates; authorize continuances; and accept waivers of the right to speedy trial." RCW 2.24.010. )

Comment: RCW2.24.040 hadbeen amendedin2000 to allow all counties, regardless of population size, to appoint court commissioners to hear these same types of criminal hearings Presumably the 2009 amendments were meant to ensure that larger counties would not be required to use one of their "constitutional" court commissioners for this purpose.

(b)RCW 26.12.050-.060—family court commissioners

RCW 26.12.050 and .060 authorize courts to appoint "[o]ne or more attorneys to act as family court commissioners ..." with "all the powers ... of [constitutional] court commissioners ...." Family court proceedings are denned as follows:

(1) Any proceeding under this title [Title 26 RCW] 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 the juvenile court, any proceeding under Title 13 or chapter 28A.225 RCW.

RCW 26.12.010.

A person appointed as a family court commissioner also may be appointed to any other commissioner position authorized by law. RCW 26.12.050.

(c)RCW...