Wednesday, February 10, 2010

74th Installment. Beware of Court Commissioners!—The Origination of the Richard I. Fine Disaster

Former Chief Justice Bird once declared in dissent that a certain case's moral was "beware of commissioners in referees' clothing!" (See In re Mark L. (1983) 34 Cal.3d 171, 181.) The Richard I. Fine case teaches a more general moral: beware of all court commissioners! Fine's ordeal, where the courts have jailed Fine for almost a year to force him to answer a judgment-creditor's financial questions [water boarding, anyone?], began when Fine entered a commissioner's courtroom, and the commissioner didn't let him leave. While I still don't sufficiently understand the immediate dispute concerning Fine's imprisonment seven years later, a document by one of Fine's class-action clients led me to the first cause of this legal catastrophe: the Court of Appeal's disingenuous review of Fine's contempt conviction by the embroiled Commissioner Bruce E. Mitchell. (See Fine v. Superior Court (2002) 97 Cal.App.4th 651.)

Fine suffered the reasonably feared consequences of stipulating to using a court commissioner, despite being entitled to a judge. Courts employ commissioners—judicial officers who are not constitutional judges—to save costs by serving in place of judges, a practice the California Constitution permits only in compliance with other constitutional requirements, including each party's stipulation to jurisdiction. (Cal. Const., Art. VI, § 21.) Since consent is a constitutional requirement, the court—never in these terms—asks for a favor; any party's refusal to stipulate means a judge must hear the matter. Although the commissioner's employment is constitutionally authorized only at the parties' sufferance, the stipulating parties don't choose the terms of their stipulation; they must take or decline the commissioner's services for all pretrial matters.

Never have I heard a lawyer wonder about what I had often expressed—and enacted—that stipulating to a commissioner unless justified by case-specific information is usually an act of disloyalty to a lawyer's client. The stipulation is irreversible, but entering it is voluntary; why would a plaintiff's attorney agree to be heard by an official who is less experienced, less qualified, more subservient to the powerful, more likely to be in defendant's pocket? The answer is that judges have great powers of reprisal. Lawyers don't always anticipate that the State Bar will be the judges' instrumentality, but they know getting on the judges' bad side is a bad idea. By routinely stipulating to the jurisdiction of commissioners, lawyers regularly sacrifice their clients' interests. This court-encouraged, unthinking violation of the central ethical tenet celebrating loyalty to client undermines attorneys' ethical sensibilities. Like writing-quality fraud, disloyal stipulation is territory the state-bar establishment won't occupy.

Events at the start of Fine's ordeal illustrate the profession's blunted ethical sensibilities about stipulations made for the court's convenience. Even an attorney dedicated to aggressive pursuit of his clients' interests succumbs to the pressure to stipulate, but that isn't to say Fine was at fault: Commissioner Mitchell committed acts of dishonesty; a disingenuous 2nd Appellate District panel ignored Commissioner Mitchell's distortion of the law and perpetrated its own distortion of fact to support the embroiled commissioner; and Commissioner Mitchell's tenacity, despite his legal-error's flagrance, smelled of corruption.

In trial court in a class-action tort case, Fine, representing the plaintiff class, signed the stipulation giving Commissioner Mitchell jurisdiction to hear all pretrial matters, the beginning of Fine's undoing. When Mitchell cited Fine for contempt for his numerous recusal motions, Fine argued that Mitchell lacked jurisdiction to try the contempt because his approval of the final settlement ended Commissioner Mitchell's authority to act as "temporary judge." Commissioner Mitchell insisted that the pretrial matters weren't completed because the members of the class retained the right to sue. The Court of Appeal rejected Commissioner Mitchell's argument, calling it "strained," a considerable understatement, since both binding authority and common sense contradict it. (Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 616 [commissioner's jurisdiction limited to stipulated matter].) When parties settled, the "cause" before Commissioner Mitchell was completed. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9 [definition of "cause"].) Contrary to Commissioner Mitchell, future causes derived from the present cause aren't part of the present cause. (Nierenberg v. Superior Court, supra, 59 Cal.App.3d at p. 617 [appealability test for a single "cause"].)

The Court of Appeal couldn't swallow Commissioner Mitchell's self-justification, yet the appellate court took no note of the unethical character of Commissioner Mitchell's desperately specious arguments to retain control; instead, the Court of Appeal offered a different reason to justify Mitchell's jurisdiction over Fine's alleged contempt. The Court of Appeal held that Fine had implied he consented to Mitchell's handling subsequent matter when Fine agreed to settlement terms that included continued court supervision. Wanting to find against Fine, but not by embracing Commissioner Mitchell's distortion of law, the Court of Appeal didn't recommend alternative language by which litigants could request continued court supervision without requesting it of this court. The Court of Appeal mischaracterized the case's facts to read into a general request for further judicial supervision a binding stipulation extending Commissioner Mitchell's specific jurisdiction.

Next Installment will further analyze the erroneous Fine v. Superior Court (2002) 97 Cal.App.4th 651.