California has two levels of bench officers. Judges, who are on one level, are either elected or appointed by the governor, while commissioners, on another level, are hired by other judges and the court to assist with caseloads by performing judicial duties. There is one other key difference. Parties whose cases are to be heard by commissioners must stipulate their approval of the commissioner’s assignment. Once consent is given, commissioners have identical powers as judges.

But what happens when that stipulation is not obtained? A California appellate court has followed precedent by ruling that a stipulation is constitutionally required and without it, a decision made by a commissioner will be voided.

In a recent case, Commissioner Susan A. Rados of the Lassen County Superior Court issued a temporary domestic violence restraining order (DMVO) against defendant/appellant Matthew Rossheim (referred to in the case as M.R.) at the request of his ex-wife, Chelsea Rossheim (referred to in the case as C.R.) Rados electronically signed her order in the space identified as “Judge or Judicial Officer.” Although court papers beginning in September 2022 consistently referred to her as the “assigned judge,” throughout the hearings regarding the DVRO, she failed to indicate that she was a commissioner rather than a judge, and thus the parties never stipulated their approval for her to hear their case.

On December 2, 2022, during another hearing, Rados issued the DVRO. It required M.R. to not abuse C.R. or their son, to block M.R. from owning a firearm, to make him return any of their son’s property still in his possession, and to require that M.R.’s future meetings with his son occur only under supervised visitation.

It was at this hearing that Rados finally told the parties that she was a Court Commissioner. A few weeks later, M.R. filed a motion to void the order because neither he nor C.R. ever stipulated that Rados could preside over hearings about their disputes. In January 2023, C.R. stipulated to Rados hearing the case, but M.R. did not. Instead, his motion to vacate the DVRO was denied without any explanation.

M.R. appealed to California’s Third District Court of Appeals, where a unanimous 3-0 panel, authored by Presiding Justice Laurie M. Earl, reversed the DVRO in an unpublished opinion on December 6. Associate Justice Shama Hakim Messiwala and Clare Keithley, Judge of the Butte County Superior Court, sitting on assignment, concurred.

Earl’s opinion began with an explanation of the rules regarding stipulation. She wrote that Section 21, Article VI of the California Constitution says, “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” This makes it clear that stipulation is “constitutionally required.”

He then cited several precedents where courts reversed DVROs because the parties failed to consent to a commissioner hearing their case. He pointed to a 2015 case, Michaels v. Turk, where the court reversed a DVRO because the record did not show the defendant had consented to allow a commissioner to preside at the hearing.

Earl then rejected C.R.’s argument that M.R.’s consent was implied because of the court’s “common practice” to post notices that say “where parties do not object, they will be deemed to have stipulated to the authority of the commissioner.” Rather, the opinion reiterated the lack of consent for Rados to hear the case because no court papers identified her as a commissioner, while many of them identified her as a judge. In addition, no one mentioned her title, and she gave no explanation of why she denied M.R.’s motion to vacate the DVRO.

“Because we see no evidence that Commissioner Rados was constitutionally authorized to try the case, we conclude her order was void,” the opinion concluded.

Earl then told the parties, who were in the midst of a child custody battle, that they could stipulate to a remittitur which allows the court to correct inequities without a new trial. He explained that the custody proceedings could be affected by a decision that would be made after the opinion is issued. He then reversed Rados’s order and the remittitur was issued soon after.

A hearing on C.R.’s application for renewal of the DVRO against her ex-husband is now scheduled for January 18 before a judge in Mendocino.