The opinion
Filed 6/18/12
IN THE SUPREME COURT OF CALIFORNIA
ALFREDO GOMEZ, )
)
Petitioner, )
) S179176
v. )
) Ct.App. 3 C060710
THE SUPERIOR COURT OF LASSEN )
COUNTY, )
) Lassen County
Respondent; ) Super. Ct. No. 47543
)
TOM FELKER, as Warden, etc., )
)
Real Party in Interest. )
____________________________________)
)
MANUEL JUAREZ, )
)
Petitioner, )
) S179176
v. )
) Ct.App. 3 C060773
THE SUPERIOR COURT OF LASSEN )
COUNTY, )
) Lassen County
Respondent; ) Super. Ct. No. CHW2530
)
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)
We granted review to decide whether a court commissioner has the
authority to summarily deny a petition for writ of mandamus or habeas corpus
under Code of Civil Procedure section 259, subdivision (a), which authorizes
1
commissioners to ―[h]ear and determine ex parte motions for orders and
alternative writs and writs of habeas corpus.‖1 We conclude that section 259,
subdivision (a) does grant this authority to commissioners and that, at least when
the petition seeks to enforce a prisoner‘s rights while in confinement — but does
not seek to collaterally attack the criminal conviction that provides the basis for
that confinement — the summary denial of a writ petition constitutes a
―subordinate judicial dut[y]‖ properly undertaken by a commissioner within the
meaning of article VI, section 22 of the California Constitution.
FACTS
Petitioner Gomez, an inmate at High Desert State Prison in Susanville, filed
a petition for writ of mandate in the Lassen Superior Court, seeking to require the
prison to process four administrative appeals of grievances that he had filed.
These administrative appeals addressed his grievances regarding the prison
policies for the certification of in forma pauperis forms; the prison‘s alleged
failure to provide postage for mailing legal documents; the prison‘s alleged failure
to respond to a request for public records; and the prison‘s refusal to process
administrative appeals in the first two matters. In his petition in the superior court,
Gomez complained that the prison‘s failure to process his appeals prevented him
from exhausting administrative remedies, a prerequisite to filing an action in
federal court. (See Woodford v. Ngo (2006) 548 U.S. 81 [prisoner must properly
exhaust administrative review processes before suing prison officials in a federal
civil rights action under 42 U.S.C. § 1983].) Lassen Superior Court Commissioner
Dawson Arnold signed an order denying the petition. Gomez objected to the order
1 All further statutory references are to the Code of Civil Procedure, unless
otherwise indicated.
2
on the ground that he had not consented to the commissioner‘s jurisdiction.
Commissioner Arnold entered a minute order striking the objection, citing section
259, subdivision (a).
Petitioner Juarez, also a prisoner at High Desert State Prison, similarly filed
a petition for writ of mandate in the Lassen Superior Court seeking a writ directing
prison authorities to process three administrative appeals of grievances that he had
filed. These three administrative appeals addressed his grievances seeking
damages resulting from an incident in which Juarez had been forced to ―prone-
out‖ for over five hours without being allowed to use the restroom; seeking return
of a folder containing personal art work, addresses, and photographs, which had
been confiscated by a prison staff member; and complaining about a staff
member‘s alleged failure to respond to Juarez‘s complaint about the seizure of the
folder. Like Gomez, Juarez alleged that the failure of prison authorities to process
his appeals regarding these grievances prevented him from exhausting his
administrative remedies, a prerequisite to seeking relief in federal court.
Commissioner Arnold issued an order treating the petition for writ of mandate as a
petition for writ of habeas corpus and denied it, concluding, ―The petition does not
merit relief in habeas corpus and is denied.‖
Gomez filed a petition for writ of mandate in the Court of Appeal, claiming
that the commissioner lacked jurisdiction to deny his petition in the superior court.
Juarez filed a petition for writ of habeas corpus in the Court of Appeal on the same
grounds, which the Court of Appeal treated as a petition for writ of mandate. The
Court of Appeal issued an alternative writ in each case and ordered that the cases
be consolidated.
In response to the alternative writ, the Attorney General filed a return on
behalf of real parties in interest, the warden and other officials of High Desert
State Prison, arguing that commissioners do not have the authority to enter final
3
orders in writ proceedings unless both parties consent to the commissioner acting
as a temporary judge. However, the Superior Court of Lassen County also filed a
return, asserting that section 259, subdivision (a) authorizes commissioners to
deny petitions for alternative writs and writs of habeas corpus, and that the statute
is constitutional.
The Court of Appeal denied both petitions in a published decision,
concluding that a commissioner is granted authority to deny habeas corpus
petitions and petitions for writs of mandate by section 259, subdivision (a), which,
as noted, authorizes commissioners to ―[h]ear and determine ex parte motions for
orders and alternative writs and writs of habeas corpus.‖ The Court of Appeal
concluded that a commissioner‘s authority to ―determine ex parte motions for . . .
alternative writs and writs of habeas corpus‖ includes the authority to summarily
deny writ petitions.
The Court of Appeal further concluded that section 259, subdivision (a) is a
lawful exercise of the Legislature‘s constitutional authority to ―provide for the
appointment by trial courts of record of officers such as commissioners to perform
subordinate judicial duties.‖ (Cal. Const., art. VI, § 22.) The appellate court
reasoned that the relevant constitutional language was adopted as part of the 1966
revision of the California Constitution and was intended to include all the powers
that commissioners had and were exercising at that time. (Rooney v. Vermont
Investment Corp. (1973) 10 Cal.3d 351, 360-366 (Rooney).) Because the language
of section 259, subdivision (a) was in existence at the time of the 1966
constitutional revision, the Court of Appeal concluded that the power to ―hear and
determine ex parte motions for . . . alternative writs and writs of habeas corpus‖
necessarily constituted a subordinate judicial duty within the meaning of the
California Constitution. Finally, the Court of Appeal rejected petitioners‘
argument that the denial of a petition for a writ of habeas corpus is too important
4
to be performed by a subordinate judicial officer, concluding that ―the initial
review of an application for a writ of habeas corpus is carefully constrained.‖
We granted review. In this court, the Attorney General on behalf of real
parties in interest, initially took a neutral position. We requested supplemental
briefing from the parties and invited the Lassen Superior Court, which had
participated in the proceedings in the Court of Appeal, to file a brief. We also
invited the California Court Commissioners Association to file an amicus curiae
brief. In response to several questions posed by this court, the Attorney General
argued in a supplemental brief that commissioners are authorized to summarily
deny writ petitions. The superior court took the same position. At oral argument,
the Attorney General changed its position, reverting to the position it took in the
Court of Appeal – that commissioners are not authorized to summarily deny a writ
petition or to issue an order to show cause.
DISCUSSION
As explained post, the Court of Appeal was correct both in its interpretation
of section 259, subdivision (a) and in its conclusion that section 259, subdivision
(a) is constitutional.
A. Interpretation of Section 259
Section 259, subdivision (a), gives every court commissioner the power to
―[h]ear and determine ex parte motions for orders and alternative writs and writs
of habeas corpus in the superior court for which the court commissioner is
appointed.‖ In interpreting a statute, we first ― ‗ ―scrutinize the actual words of the
statute, giving them a plain and commonsense meaning.‖ ‘ ‖ (Goodman v. Lozano
(2010) 47 Cal.4th 1327, 1332.) If the ― ‗language of the statute is not ambiguous,
the plain meaning controls and resort to extrinsic sources to determine the
Legislature‘s intent is unnecessary.‘ ‖ (Ste. Marie v. Riverside County Regional
5
Park & Open-Space Dist. (2009) 46 Cal.4th 282, 288.) The plain language of the
statute authorizes commissioners to grant or deny ex parte petitions for writs of
habeas corpus and alternative writs.
Section 259, subdivision (a), authorizes commissioners only to determine
―ex parte motions‖ for orders and writs. An ―ex parte motion‖ is ―[a] motion
made to the court without notice to the adverse party; a motion that a court
considers and rules on without hearing from all sides.‖ (Black‘s Law Dict. (9th
ed. 2009) p. 1106, col. 2.) As explained below, both alternative writs and writs of
habeas corpus may be granted or denied on an ex parte basis.
A writ of mandate may be issued by any court to ―any inferior tribunal,
corporation, board, or person, to compel the performance of an act‖ that the law
requires be performed. (§ 1085, subd. (a).) A petition seeking a writ of mandate
will normally include a request for issuance of an alternative writ, which would
direct the respondent to either perform the act that the petitioner alleges is
required, or to show cause before the court why it is not required to do so.
(§ 1087.) The court may deny the application for an alternative writ and dismiss
the petition if the petition fails to allege a prima facie case for relief or is
procedurally defective. (See, e.g., Dare v. Board of Medical Examiners (1943) 21
Cal.2d 790, 797.) Otherwise, the court may issue the alternative writ without prior
notice to the respondent, before the respondent has filed a response of any kind,
and without a hearing.2 (§ 1088.) After an alternative writ is issued, it must be
2 In contrast, a ―peremptory writ‖ grants the relief requested in the petition by
directing the respondent to do the act that the law requires be performed.
(§ 1087.) The peremptory writ cannot be issued in the first instance without
proper notice and an opportunity for the respondent to be heard. (§ 1088; Lewis v.
Superior Court (1999) 19 Cal.4th 1232, 1240.)
6
served on the respondent with a copy of the petition, thereby providing notice of
the petitioner‘s claims. (§ 1088.) The respondent then files a ―return‖ or answer
to the petition and a hearing is conducted. (§ 1089.) Thus, the grant or denial of
an alternative writ of mandate without an appearance by the adverse party is an ex
parte matter. (See People v. Surety Insurance Co. (1975) 48 Cal.App.3d 123, 126
[commissioner was authorized to order forfeiture of bail bond because ―by the
very fact of the defendant‘s nonappearance, this function is performed ex parte‖];
Lewis v. Neblett (1961) 188 Cal.App.2d 290 [commissioner may order appearance
of judgment debtor for examination before a referee, because such an order may
be made ex parte]; Estate of Roberts (1943) 49 Cal.App.2d 71, 77-78
[commissioner may approve a probate claim because approval of the claim is an
ex parte order].)
The procedures in a habeas corpus proceeding are similar. ―Every person
unlawfully imprisoned or restrained of his liberty, under any pretense whatever,
may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment or restraint.‖ (Pen. Code, § 1473, subd. (a).) A court may
summarily deny a petition for writ of habeas corpus for the same reasons that
justify summary denial of a petition for writ of mandate — because it fails to state
a prima facie case or because it is procedurally defective. (See People v. Duvall
(1995) 9 Cal.4th 464, 474-475; People v. Clark (1993) 5 Cal.4th 750, 769, fn. 9.)
If the petition is granted, the court issues the writ of habeas corpus, directed to the
person having custody of the petitioner and ―command[ing] him to have the body
of such person [brought] before the court or judge before whom the writ is
returnable, at a time and place therein specified.‖ (Pen. Code, § 1477.) The
granting of the writ of habeas corpus does not grant the relief requested in the
petition; it merely initiates the process of resolving the petitioner‘s claim. Because
many issues cognizable on habeas corpus may be resolved without the presence of
7
the petitioner, courts have developed the practice of issuing an order to show cause
in lieu of issuing a writ of habeas corpus. (In re Hochberg (1970) 2 Cal.3d 870,
874, fn. 2.) The order to show cause directs the respondent to file a written return.
(Ibid.) Thus, in a habeas corpus proceeding, the issuance of the writ of habeas
corpus or an order to show cause serves the same function as an alternative writ
serves in a mandate proceeding: it provides notice to and calls for a response by
the respondent. Before the writ or order to show cause issues, no appearance by
respondent is required.3 Thus, the granting or denial of a habeas corpus petition
(or an order to show cause in a habeas corpus proceeding) without an appearance
by the respondent constitutes an ex parte matter.
The use in section 259, subdivision (a), of the phrase ―ex parte motions for
orders and . . . writs‖ rather than language more specific to writ practice — such as
―ex parte motions for orders and petitions for writs‖ — is somewhat inapt. The
application for a writ of mandate or habeas corpus is generally referred to as a
petition, not a motion. (See Pen. Code, § 1474 [―Application for the writ [of
habeas corpus] is made by petition‖]; Dare v. Board of Medical Examiners, supra,
21 Cal.2d at p. 796 [―The proceeding [for a writ of mandate] is initiated by the
filing of a verified petition. The practice is to present the petition to the court with
a request that the alternative writ be issued ex parte.‖].) Nonetheless, the term
―motion‖ is broad enough to include petitions for alterative writs or writs of
3 The applicable rule of court currently authorizes the court to request an
informal response from the respondent before ruling on the petition, and the
petitioner may reply to the informal response. (Cal. Rules of Court, rule 4.551(b).)
Because the Lassen Superior Court did not request an informal response in the
present case, we need not decide whether, in a case in which an informal response
is requested and filed, the matter is not ―ex parte‖ within the meaning of section
259, subdivision (a).
8
habeas corpus. A ―motion‖ is ―an application for an order.‖ (§ 1003.) As
described above, a writ petition, at the initial stage, seeks an order to show cause
or an order of the court directing the issuance of a writ of habeas corpus or
alternative writ. As such, a writ petition may fairly be described as an application
for an order, which is the definition of a ―motion.‖
Petitioners contend that section 259, subdivision (a) does not authorize a
commissioner to deny a writ petition because such a denial constitutes a final
judgment and a judgment does not constitute a mere ―order.‖ They point out that
an ―order,‖ is ―[e]very direction of a court or judge, made or entered in writing,
and not included in a judgment . . . .‖ (§ 1003, italics added.) In a writ
proceeding, a ―judgment,‖ ―is the final determination of the rights of the parties.‖
(§ 1064.) Section 259, subdivision (a), however, does not limit the
commissioner‘s authority to granting the order sought. It gives the commissioner
the authority to ―[h]ear and determine‖ the motion. A grant of the authority to
―[h]ear and determine‖ is a grant of subject matter jurisdiction. (See People v.
Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [―jurisdiction in the fundamental sense‖ is
the ―power to hear and determine a cause‖]; Ex Parte Bennett (1872) 44 Cal. 84,
88 [―[j]urisdiction has often been said to be ‗the power to hear and determine.‘ ‖];
see also Lewis v. Superior Court, supra, 19 Cal.4th at p. 1251 [to hear a case
means to consider and determine it].) Nothing in the language of section 259,
subdivision (a) suggests that a commissioner who has the authority to ―[h]ear and
determine‖ an application for a writ lacks the authority to deny the requested writ.
Next, to the extent there is ambiguity in section 259, subdivision (a),
petitioners contend that it should be interpreted in a manner that is consistent with
the other subdivisions of the statute, which do not permit a commissioner to enter
9
a final order disposing of the matter without the consent of the parties.4
Petitioners invoke the principle of interpretation that statutes should be construed
―in context, . . . and statutes or statutory sections relating to the same subject must
be harmonized, both internally and with each other, to the extent possible.‖
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,
4 Section 259 provides in full: ―Subject to the supervision of the court, every
court commissioner shall have power to do all of the following:
―(a) Hear and determine ex parte motions for orders and alternative writs
and writs of habeas corpus in the superior court for which the court commissioner
is appointed.
―(b) Take proof and make and report findings thereon as to any matter of
fact upon which information is required by the court. Any party to any contested
proceeding may except to the report and the subsequent order of the court made
thereon within five days after written notice of the court‘s action. A copy of the
exceptions shall be filed and served upon opposing party or counsel within the five
days. The party may argue any exceptions before the court on giving notice of
motion for that purpose within 10 days from entry thereof. After a hearing before
the court on the exceptions, the court may sustain, or set aside, or modify its order.
―(c) Take and approve any bonds and undertakings in actions or
proceedings, and determine objections to the bonds and undertakings.
―(d) Act as temporary judge when otherwise qualified so to act and when
appointed for that purpose, on stipulation of the parties litigant. While acting as
temporary judge the commissioner shall receive no compensation therefor other
than compensation as commissioner.
―(e) Hear and report findings and conclusions to the court for approval,
rejection, or change, all preliminary matters including motions or petitions for the
custody and support of children, the allowance of temporary spousal support, costs
and attorneys‘ fees, and issues of fact in contempt proceedings in proceedings for
support, dissolution of marriage, nullity of marriage, or legal separation.
―(f) Hear actions to establish paternity and to establish or enforce child and
spousal support pursuant to subdivision (a) of Section 4251 of the Family Code.
―(g) Hear, report on, and determine all uncontested actions and proceedings
subject to the requirements of subdivision (d).‖
10
1387; see People v. Simon (1995) 9 Cal.4th 493, 514.) This principle, however,
does not require us to interpret different subdivisions of a statute in a similar
manner when their language indicates that they should be interpreted
independently. As noted above, section 259, subdivision (a) permits
commissioners to ―[h]ear and determine‖ certain ex parte matters, while other
subdivisions permit a commissioner only to hear and report on the specified
matters. (See, e.g., § 259, subds. (b) [―make and report findings‖], (e) [―[h]ear and
report findings and conclusions‖], (f) ―[h]ear‖].) By using different language in
section 259, subdivision (a), the Legislature has made clear that it did not intend to
limit a commissioner‘s authority under subdivision (a) in the manner that it is
limited in other subdivisions. (See West v. U. L. C. Corp. (1965) 232 Cal.App.2d
85, 89 [in subdivision giving commissioners the authority to ― ‗hear, report on, and
determine‘ ‖ uncontested actions, ―the Legislature intended to give the
commissioners power to determine the matters coming within it, because in a
situation where the Legislature merely wanted the commissioners to report their
determinations to the court, it knew exactly how to express itself‖].)
B. Constitutionality of Section 259, Subdivision (a)
The California Constitution authorizes the Legislature to ―provide for the
appointment by trial courts of record of officers such as commissioners to perform
subordinate judicial duties.‖ (Cal. Const., art. VI, § 22 (hereafter article VI,
section 22).) Petitioners contend that the denial of a writ petition constitutes a
final judgment, the rendering of which cannot be deemed a ―subordinate judicial
dut[y].‖ They argue that the constitutional authority of commissioners should be
interpreted in a manner consistent with the authority granted commissioners in
other provisions of section 259 and in other statutes, which do not include the
authority to render a final judgment except in uncontested matters or with the
11
agreement of the parties, or in less significant matters such as traffic infractions
and small claims.5 Consequently, petitioners contend, section 259, subdivision (a)
should be interpreted to authorize commissioners to decide only preliminary or
incidental matters, including issuing an alternative writ or order to show cause, but
not to issue a final order denying a petition.6
5 See Government Code section 72190 (―At the direction of the judges,
commissioners may have the same jurisdiction and exercise the same powers and
duties as the judges of the court with respect to any infraction or small claims
action‖), Government Code section 72401, subdivision (c) (―With respect to any
infraction, [a traffic referee] may have the same jurisdiction and exercise the same
powers and duties as a judge of the court‖); see also Government Code section
72190.1 (―A commissioner may conduct arraignment proceedings on a complaint
. . . including the issuance and signing of bench warrants.‖), Government Code
section 72190.2 (―[A] commissioner may issue and sign a bench warrant for the
arrest of a defendant who fails to appear in court when required to appear by law
or who fails to perform any act required by court order‖).
6 For purposes of this case, we may accept petitioners‘ characterization of the
summary denial of a writ petition as a final order or a final judgment. We note,
however, that the consequences of a summary denial of a writ petition differ in
some respects from the consequences of a final judgment in a fully adjudicated
case. For example, the denial of an application for an alternative writ or the
summary denial of a habeas corpus petition does not establish law of the case and
does not have a res judicata effect in future proceedings. (See Kowis v. Howard
(1992) 3 Cal.4th 888, 893 [appellate court‘s summary denial of pretrial writ is not
law of the case, even when it is clear the petition was denied on the merits];
Funeral Dir. Assn. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104 [Supreme Court‘s
denial of application for writ of mandate without written decision was a refusal to
exercise original jurisdiction and not res judicata in subsequent writ proceedings in
superior court seeking same relief].) Furthermore, a summary denial may not be
final when the denial is made without prejudice to petitioner applying for further
relief. (See, e.g., In re Swain (1949) 34 Cal.2d 300, 304 [application for writ of
habeas corpus denied for failure to sufficiently allege facts supporting claims,
without prejudice to the filing of a new petition]; Gibson v. Savings & Loan
Commissioner (1970) 6 Cal.App.3d 269 [trial court‘s summary denial of an
alternative writ without prejudice to petitioner amending his petition and
reapplying for relief was not a final, appealable order].)
12
In determining whether section 259, subdivision (a) is constitutional, we
must bear in mind that ―[t]here is a ‗strong presumption in favor of the
Legislature‘s interpretation of a provision of the Constitution.‘ [Citation.]
‗ ―When the Constitution has a doubtful or obscure meaning or is capable of
various interpretations, the construction placed thereon by the Legislature is of
very persuasive significance.‖ ‘ [Citation.] ‗ ―For the purpose of determining
constitutionality, we cannot construe a section of the Constitution as if it were a
statute, and adopt our own interpretation without regard to the legislative
construction.‖ ‘ [Citations.]‖ (Mt. San Jacinto Community College Dist. v.
Superior Court (2007) 40 Cal.4th 648, 656.)
1. History of article VI, section 22
The history of article VI, section 22 strongly supports the conclusion that
section 259, subdivision (a) is constitutional.
Prior to the revision of the California Constitution in 1966, the relevant
section of the Constitution authorized the Legislature to ―provide for the
appointment, by the several superior courts, of one or more commissioners . . .
with authority to perform chamber business of the judges of the superior courts, to
take depositions, and to perform such other business connected with the
administration of justice as may be prescribed by law.‖ (Cal. Const., art. VI,
former § 14, as adopted Nov. 4, 1924.) The report of the California Constitution
Revision Commission, which proposed and recommended the 1966 revisions,
states: ―The existing section [14] raises the problem of defining ‗chamber
business‘ since many ‗judicial‘ duties can be performed in chambers. To indicate
the subordinate nature of duties that officers such as commissioners should be
allowed to perform, the phrase ‗subordinate judicial duties‘ was used.‖ (Cal.
Const. Revision Com., Proposed Revision of the Cal. Constitution (1966) p. 99.)
13
In Rooney, supra, 10 Cal.3d 351, this court explained that the ―words
‗subordinate judicial duties‘ were intended by the draftsmen as an appropriate
constitutional phrase sufficiently broad to permit specific details to be later
enacted or adopted by the legislative or rulemaking agencies. [Citations.] The
reference to ‗judicial‘ duties was not intended to preclude assignment of
ministerial or administrative duties to court commissioners but was intended to
eliminate any possibility that assigning subordinate judicial duties to
commissioners would violate the constitutional doctrine of separation of powers.‖
(Id. at p. 362.)
In Rooney this court examined the voter information pamphlet for the
election at which the constitutional revision was adopted, and found ―no indication
of any intent to change or restrict the judicial powers assignable to court
commissioners.‖ (Rooney, supra, 10 Cal.3d at p. 364, fn. 10.) This court
concluded that ―[n]othing in the history of the drafting and adoption of the
constitutional provision indicates that the phrase ‗subordinate judicial duties‘
should be interpreted as foreclosing or limiting court commissioners from
exercising the powers which the Legislature had conferred upon them prior to
1966. . . . [¶] The absence of any manifestation of intent on the part of the
framers of the revision of article VI to modify the powers of court commissioners
under long-existing legislation affirmatively shows that they intended no such
change.‖ (Id. at p. 364.)
At the time that article VI, section 22 was adopted in 1966, long-standing
legislation authorized commissioners to determine ex parte writ petitions. The
language of section 259, subdivision (a) has varied somewhat since it was
originally adopted in 1872, and it has been amended at times to include specific
exceptions and limitations. Nevertheless, it has always included language similar
to that contained in the current version whose most reasonable, plain meaning
14
permits commissioners to determine whether to issue or deny an ex parte writ of
habeas corpus or alternative writ.
As adopted in 1872, the statute gave every commissioner the power ―[t]o
hear and determine ex parte motions for orders and writs (except orders or writs of
injunction).‖ (See history, Deering‘s Ann. Code Civ. Proc., (1991 ed.) foll. § 259,
p. 485.) In 1880, it was amended to add a proviso granting such authority ―only in
the absence or inability to act of the judge or judges of the superior court.‖ (Code
Civ. Proc., former § 259, as amended by Code Civ. Proc Amends. 1880, ch. 35,
p. 51.) In 1929, the Legislature adopted section 259a, which granted
commissioners in counties with a population over 900,000 the authority ―[t]o hear
and determine ex parte motions for orders and alternative writs and writs of habeas
corpus,‖ but eliminated the proviso that such authority could be exercised only in
the absence or inability to act of the judges of the court. (Stats. 1929, ch. 874, § 2,
p. 1937.)7 Section 259a was still in effect in 1966. Thus, at the time of the
adoption of the 1966 constitutional revision, commissioners were already
authorized to ―hear and determine ex parte motions for writs.‖8 Under the
rationale of Rooney, we infer that article VI, section 22 preserved this authority.9
7 In 1980, section 259a was repealed and section 259 was amended to track
the language of former section 259a, granting commissioners of all courts the
power ―[t]o hear and determine ex parte motions, for orders and alternative writs
and writs of habeas corpus . . . .‖ (Stats. 1980, ch. 229, § 1, p. 472.) Finally, an
amendment in 1996 deleted the comma following ―ex parte motions,‖ leaving the
language in its current form. (Stats. 1996, ch. 957, § 1, p. 5665.)
8 Rooney states at one point that ―[t]he scope of the subordinate judicial
duties which may be constitutionally assigned to court commissioners should be
examined in the context of the powers that court commissioners had and were
exercising in 1966.‖ (Rooney, supra, 10 Cal.3d at p. 362.) We have been unable
to discover any evidence concerning whether commissioners in 1966 were actually
exercising the authority granted in section 259a. We asked the parties, the
superior court, and amicus curiae California Court Commissioners Association to
(footnote continued on next page)
15
(footnote continued from previous page)
address this point, and none could provide any information. Rooney, however, did
not cite any evidence that commissioners were actually exercising the specific
authority at issue in that case — the authority to decide uncontested matters.
Rather, it noted generally that commissioners, particularly in Los Angeles County,
were making a significant contribution to the reduction of the workload of the
superior courts in 1966 by exercising the powers authorized by section 259a.
(Rooney, supra, at pp. 361-363.) Consequently, we do not believe that the absence
of evidence concerning whether commissioners actually exercised the authority to
determine ex parte writs before 1966 is critical.
9 Furthermore, the authority granted commissioners in section 259,
subdivision (a) to ―[h]ear and determine ex parte motions for writs‖ is clearly
consistent with the constitutional authority of commissioners prior to 1966. As
noted above, prior to 1966, the state Constitution authorized the Legislature to
provide for the appointment of commissioners with the authority to ―perform
chamber business of the judges of the superior courts.‖ (Cal. Const., art. VI,
former § 14, as adopted Nov. 4, 1924.) In 1872, at the same time that section 259
was first adopted, section 166 was adopted, defining chamber business. That
statute provided that judges, ―at chambers‖ may ―grant all orders and writs which
are usually granted in the first instance upon ex parte applications, and may, at
chambers, hear and dispose of such writs . . . .‖ (Code Civ. Proc. (1872) § 166.)
The current version of the statute defining ―chamber business‖ contains nearly
identical language. (See § 166, subd. (a)(1) [judges, ―in chambers,‖ may ―[g]rant
all orders and writs that are usually granted in the first instance upon ex parte
application, and hear and dispose of those orders and writs‖].)
Additionally, section 166 (both prior to 1966 and in its current form as
§ 166, subd. (b)) authorizes judges to, ―out of court, anywhere in the state,
exercise all the powers and perform all the functions and duties conferred upon a
judge as contradistinguished from the court, or that a judge may exercise or
perform in chambers.‖ (See also Code Civ. Proc., former § 166, as amended by
Stats. 1933, ch. 743, § 47, pp. 1827-1828.) Article VI, section 10 of the California
Constitution, like its predecessor, provides that ―superior courts, and their judges
have original jurisdiction in habeas corpus proceedings.‖ (Italics added; see also
Cal. Const., art VI, former § 5, as amended Nov. 28, 1928 [granting ―superior
courts, and their judges‖ the ―power to issue writs of mandamus, certiorari,
prohibition, quo warranto, and habeas corpus . . . in their respective counties‖].)
This constitutional grant of authority to judges ―as contradistinguished from the
court‖ to determine habeas corpus matters further reinforces the conclusion that
(footnote continued on next page)
16
Petitioners contend that Rooney need not guide our decision here because
its conclusions regarding article VI, section 22 were dicta, in that the ultimate
holding in Rooney was that the actions of the commissioner at issue were not
authorized by statute. Rooney held that section 259‘s grant of authority to
commissioners to determine uncontested actions was constitutional, but that the
matter at issue in that case was not uncontested. Even so, petitioners point to no
flaw in Rooney‘s analysis of article VI, section 22 or in its conclusion that the
intent of that section was to ―validate preexisting powers‖ of court commissioners.
(Rooney, supra, 10 Cal.3d at p. 364.)
Petitioners additionally contend that a summary denial of a writ petition can
have significantly more negative consequences for a petitioner than it did in 1966
and that these consequences remove the denial of a writ petition from the category
of ―subordinate judicial duties.‖ Petitioners argue that ―[s]ince 1966, this Court
has tightened and given teeth to ‗the rule that absent a change in the applicable law
or the facts, the court will not consider repeated applications for habeas corpus
presenting claims previously rejected.‘ (In re Clark (1993) 5 Cal. 4th 750, 767.)‖
Under the circumstances here, denial of a petition regarding conditions of
confinement, we disagree. In re Clark involved a habeas corpus petition claiming
that the petitioner‘s conviction and death sentence were invalid. (In re Clark,
supra, 5 Cal.4th 750 (Clark).) Clark recognized that the long-standing bar against
―successive petitions‖ — those raising the same issues rejected in a prior petition
or challenging a conviction or sentence on grounds not raised in a prior petition —
(footnote continued from previous page)
such matters were ―chamber business,‖ that could be delegated to commissioners
both before and after the 1966 constitutional revision.
17
had sometimes been treated as discretionary. (Id. at p. 768.) Clark clarified that
the denial of a habeas corpus petition — including a summary denial — precludes
consideration of a successive petition unless the petitioner justifies the delay in
seeking relief or demonstrates that ―a fundamental miscarriage of justice occurred
as a result of the proceedings leading to conviction and/or sentence.‖ (Id. at
p. 797.) Clark also set forth specific definitions of what constitutes a miscarriage
of justice in this context. (Id. at pp. 787-797.)
As is obvious from the above discussion, to the extent that Clark altered the
law regarding successive petitions, it did so in the context of petitions that seek to
collaterally challenge a criminal conviction. Clark explained that procedural rules
barring delayed and successive writs ―are necessary both to deter use of the writ to
unjustifiably delay implementation of the law, and to avoid the need to set aside
final judgments of conviction when retrial would be difficult or impossible.‖
(Clark, supra, 5 Cal.4th at p. 764.) Such rules ―are simply manifestations of this
court‘s resolve to balance the state‘s weighty interest in the finality of judgments
in criminal cases with the individual‘s right — also significant — to a fair trial
under both the state and federal Constitutions.‖ (In re Harris (1993) 5 Cal.4th
813, 830.) Courts have not strictly applied Clark’s formulation of the rules
regarding timeliness and their limited exceptions to cases in which the habeas
corpus petition does not attempt to collaterally attack the petitioner‘s conviction or
sentence. (See In re Espinoza (2011) 192 Cal.App.4th 97 [petition challenging
prison policies regarding visitation]; In re Burdan (2008) 169 Cal.App.4th 18
[petition challenging parole decision].)
To resolve the present dispute we need not decide whether section 259,
subdivision (a) would be constitutional in every circumstance in which it might
apply. Petitions for writs of mandate and writs of habeas corpus may be brought
in a superior court under many different circumstances and for many different
18
purposes.10 In the present case petitioners do not seek to collaterally attack their
criminal convictions, and there is no evidence before us that the Lassen Superior
Court, or any other superior court, has assigned commissioners to determine such
petitions. Consequently, our decision in Clark is not relevant to the question of
whether the petitions in this case could properly be decided by a commissioner.
Similarly, petitioners contend that the consequences of the denial of a state
habeas corpus petition are more significant today than they were in 1966 because
under current federal law, with limited exceptions, a federal court hearing a habeas
corpus petition based on the same claims summarily rejected by a state court will
refuse to hear any claim that the state court decided was barred because of a
procedural default. (Coleman v. Thompson (1991) 501 U.S. 722, overruling Fay v.
10 Historically, the function of the writ of habeas corpus was to ―releas[e] a
person imprisoned or restrained as a result of a void proceeding or jurisdictional
defect in the imprisoning authority.‖ (In re Jackson (1964) 61 Cal.2d 500, 503;
see Ex parte Long (1896) 114 Cal. 159 [habeas corpus could not be used to inquire
into whether petitioner‘s conduct violated the ordinance under which he was
convicted, where the jurisdiction of the court was not contested and the judgment
of conviction was not void on its face].) The writ has been expanded to address
wrongful imprisonment even in situations in which jurisdiction is not lacking. (In
re Jackson, supra, at pp. 503-504.)
Additionally, ―habeas corpus may be sought by one lawfully in custody for
the purpose of vindicating rights to which he is entitled in confinement.‖ (In re
Jordan (1972) 7 Cal.3d 930, 932; see, e.g., In re Davis (1979) 25 Cal.3d 384, 387
[challenging lengthy administrative and disciplinary segregation pending rules
violation hearing]; In re Harrell (1970) 2 Cal.3d 675, 682 [addressing access to
courts and conditions of confinement]; In re Riddle (1962) 57 Cal.2d 848, 851
[alleging cruelty by prison guards].) Those rights include not only statutory or
constitutional violations, but also violations of administrative regulations. (See,
e.g., In re Dannenberg (2005) 34 Cal.4th 1061 [challenging Board of Prison
Terms‘ failure to apply its own ―matrix‖ regulations to parole-eligible inmates]; In
re Van Geldern (1971) 5 Cal.3d 832 [challenging regulation requiring inmate-
authors to relinquish 25 percent of royalties from published writings].)
19
Noia (1963) 372 U.S. 391.) However, it is not at all clear that federal habeas
corpus would be available to a state prisoner who, like petitioners in the present
case, seeks relief other than release from imprisonment, a reduction in sentence, or
relief from a severe restraint on personal liberty. (See 28 U.S.C. § 2254(a) [a
federal court ―shall entertain an application for a writ of habeas corpus [on] behalf
of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States‖]; Hensley v. Municipal Court (1973) 411 U.S. 345, 351 [habeas
corpus is ―a remedy for severe restraints on individual liberty‖]; Bell v. Wolfish
(1979) 441 U.S. 520, 526, fn. 6 [treating as an open question the propriety of the
use of the writ of habeas corpus ―to obtain review of the conditions of
confinement, as distinct from the fact or length of the confinement itself‖].)
Indeed, both petitioners in the present case indicated that they sought to file a
federal civil rights action under section 1983 of title 42 of the United States Code,
not a federal habeas corpus petition. In a federal civil rights action, although a
prisoner must exhaust administrative remedies before suing prison officials,
exhaustion of all state court remedies is not required and Coleman v. Thompson is
not applicable. (See Heck v. Humphrey (1994) 512 U.S. 477, 480.) Consequently,
a summary denial by a commissioner would not have consequences for a
prisoner‘s ability to seek a remedy in a federal civil rights action in cases like the
present one.
2. Subordinate judicial duties
Even if the historical analysis were not dispositive, our case law establishes
that subordinate judicial duties are not limited to the rendering of decisions that
are not final. In Rooney, we upheld a statute permitting commissioners to ―hear,
report on, and determine all uncontested actions and proceedings.‖ (Former
20
§ 259a, subd. 6, as added by Stats. 1929, ch. 874, § 2, p. 1938.)11 We specifically
disapproved anything to the contrary in Mosler v. Parrington (1972) 25
Cal.App.3d 354, which had held that a commissioner lacked authority to render a
default judgment in an action in which the defendant had filed an answer but did
not appear at a hearing on a motion to strike the answer. (Rooney, supra, 10
Cal.3d at p. 366; see also West v. U. L. C. Corp., supra, 232 Cal.App.2d at p. 91
[holding that a statute permitting commissioners to hear and determine
uncontested matters was constitutional because such duties constituted ― ‗chamber
business‘ as used in the Constitution of 1879‖].)
In In re Kathy P. (1979) 25 Cal.3d 91, we upheld a statute granting
juvenile traffic hearing officers full authority to hear and decide contested traffic
infraction cases. Welfare and Institutions Code sections 255 and 256 authorize
juvenile court judges to appoint traffic hearing officers to hear and decide charges
against a minor involving any nonfelony violation of the Vehicle Code. The
minor or the parent may request modification or rehearing of the hearing officer‘s
order by a judge, but is not entitled to a rehearing by a judge. (Welf. & Inst. Code,
§ 262.) We acknowledged that ―[w]hen serious juvenile misconduct is charged,
11 As adopted in 1929, and as it read at the time that Rooney was decided,
section 259a, subdivision 6, permitted commissioners in large counties to ―hear,
report on, and determine all uncontested actions and proceedings other than
actions for divorce, maintenance or annulment of marriage.‖ (Stats. 1929, ch. 874,
§ 2, p. 1938.) In 1980, this same authority was incorporated into section 259,
subdivision 6 and thereby made applicable to commissioners in all counties.
(Stats. 1980, ch. 229, § 1, p. 472.) The current version of section 259 permits
commissioners to decide uncontested matters only when authorized to act as a
temporary judge. (§ 259, subd. (g) [authorizing commissioner to ―[h]ear, report
on, and determine all uncontested actions, subject to the requirements of
subdivision (d),‖ which relates to a commissioner‘s authority to act as a temporary
judge upon stipulation of the parties].)
21
the referee‘s subjudicial authority to make a final determination extends to
uncontested or collateral maters but not to contested adjudications.‖ (In re
Kathy P., supra, at pp. 97-98; see In re Edgar M. (1975) 14 Cal.3d 727.) We
concluded, however, that the adjudication of contested juvenile traffic infraction
cases was properly characterized as a subordinate judicial duty. The minor nature
of the offense (infractions are not punishable by imprisonment) and the high
volume of cases justified simplified procedures.
In Kathy P., we cited with approval the decision in People v. Lucas (1978)
82 Cal.App.3d 47 (Lucas), which held that Government Code section 72190,
which grants commissioners the full authority of a judge in traffic infraction cases,
was constitutional. Lucas concluded that ―the unique and specialized function of
trying infraction cases . . . could properly be ranked as ‗subordinate‘ in relation to
the diversity and complexity of the other duties of a municipal court judge.‖
(Lucas, supra, at p. 54; quoted in In re Kathy P., supra, 25 Cal.3d at p. 98.)
Giving appropriate deference to the Legislature‘s determination, the
decision whether to summarily deny a petition for writ of mandate or habeas
corpus may ―properly be ranked as ‗subordinate‖ in relation to the diversity and
complexity of the other duties of a [superior] court judge.‖ (Lucas, supra, 82
Cal.App.3d at p. 54.) A commissioner assigned to hear and determine an ex parte
writ petition must determine, from the face of the petition, whether it states a
prima facie case or is barred by some form of procedural default. These decisions
require the judge or commissioner to apply the law to the facts as asserted in the
petition; no issues of fact are decided. The circumstance that no hearing and no
other form of input from the respondent is required is a reflection of the limited
nature of the contemplated decision.
Even if, as petitioners contend, a writ petition at the initial, ex parte, stage is
not technically an uncontested matter, the task of determining such a petition is
22
comparable in complexity to the task of determining an uncontested matter. Lucas
pointed out that Rooney had upheld the authority of commissioners to hear
uncontested matters. (Lucas, supra, 82 Cal.App.3d at p. 50.) Lucas noted that ―in
the hearing of some of the uncontested matters, a commissioner may be required
to decide significant issues of law and make findings of fact which have the same
import and finality as though made by a judge. For example, in default hearings,
the court is required to receive evidence, determine the facts established by the
evidence, and apply the law to these facts notwithstanding that the defendant has
failed to answer. (Code Civ. Proc., § 585.)‖ (Ibid.) The determination of whether
a petition states a prima facie case or is barred for procedural reasons is no more
complex than the determination of many uncontested matters.12
Finally, petitioners contend that ―[v]esting power in a commissioner to
deny any and all habeas petitions is at odds with the power and majesty of the
great writ.‖ We have recognized that ―the writ has been aptly termed ‗the safe-
guard and the palladium of our liberties‘ [citation] and is ‗regarded as the greatest
remedy known to the law whereby one unlawfully restrained of his liberty can
secure his release. . . .‘ [Citation.]‖ (Clark, supra, 5 Cal.4th at p. 764.)
12 Petitioners additionally argue that we should limit commissioners to
exercising the same authority in writ proceedings that may be exercised by federal
magistrates, who may rule on nondispositive pretrial matters. (28 U.S.C.
§ 636(b)(1)(A).) State commissioners are not, however analogous to federal
magistrates. The authority of federal magistrates is constrained not only by the
terms of the federal authorizing statute but also by article III, section 1 of the
federal Constitution, which vests the judicial power of the United States in judges
who hold life tenure and enjoy undiminished compensation. (See generally
Gomez v. United States (1989) 490 U.S. 858; Mathews v. Weber (1976) 423 U.S.
261.) In contrast, the California Constitution explicitly authorizes the Legislature
to provide for commissioners who may exercise ―subordinate judicial duties.‖
(Art. VI, § 22.)
23
Petitioners in the present case do not seek release from confinement, however, and
we need not decide in the present case whether the assignment of a commissioner
to a case that challenged the prisoner‘s conviction or otherwise alleged grounds for
release from confinement would be constitutional. In any event, our conclusion
that making the initial determinations required at the ex parte stage of a writ
proceeding constitutes a subordinate judicial duty is not based on any belief that
the matters sought to be remedied through writs may be characterized as minor or
insignificant. Rather, it is based on our recognition that the intent of the 1966
constitutional revision was to authorize commissioners to perform those tasks that
had long been authorized under preexisting statutes, and that the tasks involved in
making such threshold determinations are relatively limited and straightforward
when compared to ―the diversity and complexity of the other duties of a [superior]
court judge.‖ (Lucas, supra, 82 Cal.App.3d at p. 54.) Petitioners present no
reason to believe that permitting commissioners to make those determinations in
any way compromises the availability of the writ to perform its function of
safeguarding liberties.
CONCLUSION
The decision of the Court of Appeal is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Gomez v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 179 Cal.App.4th 614
Rehearing Granted
__________________________________________________________________________________
Opinion No. S179176
Date Filed: June 18, 2012
__________________________________________________________________________________
Court: Superior
County: Lassen
Judge: Dawson Arnold, Commissioner
__________________________________________________________________________________
Counsel:
Michael Satris, under appointment by the Supreme Court, for Petitioners.
Jon A. Nakanishi for Respondent.
F. Donald Sokol, Presiding Judge of the Lassen County Superior Court, for Respondent, upon the request
of the Supreme Court.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L.Garland, Assistant Attorney General, Jessica N. Blonien, Heather M. Heckler,
Anya M. Binsacca and Christopher J. Rench, Deputy Attorney General, for Real Parties in Interest.
David E. Gunn for the California Court Commissioners Association as Amicus Curiae, upon the request of
the Supreme Court.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael Satris
Post Office Box 337
Bolinas, CA 94924
(415) 868-9209
Christopher J. Rench
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5374