"isn't That Special": the Limited Powers of Special Masters

• Jurisdiction: California,United States
• Author: By Mark T. Drooks & Thomas R. Freeman
• Citation: Vol. 34 No. 3
• Publication year: 2021

"Isn't that Special": The Limited Powers of Special Masters

By Mark T. Drooks & Thomas R. Freeman

Mark T. Drooks is a partner at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. in Los Angeles.

Thomas R. Freeman is a partner at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. in Los Angeles.

The Church Lady's words may be particularly apt when it comes to the appointment of special masters in California's trial courts. Used appropriately, special masters can be extremely useful to the parties and the court. They can bring expertise to a complex case or issue, parse a large or technical record for the benefit of the trial court, and make recommendations to the court on matters presented by the parties. But the expertise and resources special masters bring to that job — in conjunction with their typically broad investigatory mandates under a trial court's order of appointment — may lead some to inadvertently overstep the bounds of their appropriate authority as judicial agents.

Given the extraordinary powers conferred on special masters — and the accompanying risk that those great powers will be taken too far — it may be surprising to learn that there is little appellate law on the appropriate use (or misuse) of a special master's delegated judicial authority. This dearth of appellate guidance is likely a function of aggrieved parties' prudent fear that an unsuccessful attempt to seek discretionary writ review from the appellate court will make matters far worse. As Ralph Waldo Emerson famously responded to a young Oliver Wendell Holmes' criticism of Plato, "When you strike at the king, you must kill him." Given the low probability of appellate intervention, the risk of challenging a special master often weighs decisively against even seeking appellate relief in this fraught context.

Despite the lack of appellate guidance, there is at least one rule that should be uncontroversial. Special masters, who function as an arm of the court, cannot exceed the appointing court's own judicial authority. From that Archimedean point, we argue that special masters must operate as judicial officers within the adversarial system of justice — and not as judicial inquisitors operating on an ex parte basis. We are forced to "argue" this point because (surprisingly) it is not clearly established by judicial opinion.

Special Masters Perform a Judicial Function

Section 639 of the Code of Civil Procedure empowers trial courts to appoint special masters without the parties' consent to perform a variety of functions when (among

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other things) (1) "a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action," (2) "it is necessary for the information of the court in a special proceeding," or (3) "the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon."

Special masters perform a subordinate but nevertheless "judicial" function when appointed by a trial court to assist in the fact-finding process or make recommendations. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721.) In recognition of that judicial role, Canon 6(A) of the California Code of Judicial Ethics provides that "[a]nyone who is an officer of the state judicial system and who performs judicial functions including ... a special master, is a judge within the meaning of this code."

Courts and Special Masters Are Passive Arbiters of Justice

The judicial role is defined by the adversary system of justice: "What makes a system adversarial rather than inquisitorial is ... the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties." (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 357, quoting McNeil v. Wisconsin (1991) 501 U.S. 171, 181, fn. 2.)

The "philosophy" underlying the adversary system "insists on keeping the function of the advocate, on the one hand, from that of the judge on the other hand." (Fuller, The Adversary System, Talks on American Law (Harold Berman ed. 1961) pp. 34-35.) Judges must therefore follow a fact-finding and decisional process within the parameters of an open, adversarial system, with the judge assuming the judicial function of a "neutral" and "passive" arbiter of justice. (United States v. Sineneng-Smith (2020) 140 S.Ct. 1575, 1579.) This system...