# In Re Mark L.

> California Supreme Court · July 28, 1983 · 34 Cal. 3d 171

URL: https://www.frixlaw.com/law-library/cases/9537047

## Case

- **Full name:** In Re MARK L., a Minor, on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** July 28, 1983
- **Citations:** 34 Cal. 3d 171; 193 Cal. Rptr. 165; 666 P.2d 22; 1983 Cal. LEXIS 209
- **Precedential status:** Published
- **Opinion:** Dissent by Bird
- **Judges:** Grodin, Bird
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9537047

## Opinion text

BIRD, C. J., Dissenting
I write separately because I cannot follow the logic of the majority opinion. The court appears to be saying the following: Mr. Browning had no legal power without a prior stipulation from the parties to start the juvenile hearing in his capacity as a commissioner. However, he did have the authority to act as a referee, but any hearing held by him in that capacity would not result in a final dispositional order since (1) the parties did not stipulate in writing that he could act as a judge and (2) an “implied stipulation” is not permitted under the Rules of Court if the judicial officer is a referee. (See maj. opn., ante, fns. 4 & 5. See also Cal. Rules of Court, rules 1316(b) & 244(a).)
So, in order to give finality to Mr. Browning’s acts, the majority appear to hold that he had jurisdiction to begin the juvenile court proceedings only because he was a referee; however, his acts thereafter became the acts of a pro tern, judge. Why? Because he was a commissioner! The majority rely on Browning’s status as a commissioner to hold that the parties, by failing to object to his participation, allow the legal inference to be drawn that the judicial orders he made at the hearing were those of a pro tern, judge and were therefore final forthwith. 1 Pray tell, was Mr. Browning (1) a referee, (2) a commissioner, (3) a judge pro tern., (4) all three of the above, (5) none of the above, or (6) each of the above depending on when in the course of the hearing you view his actions? The moral of this story for counsel— beware of commissioners in referees’ clothing!
*182 Since I cannot follow the logic of the opinion, I cannot affix my signature to it. I respectfully dissent.
Respondent’s petition for a rehearing was denied August 25, 1983, and the opinion was modified to read as printed above. Bird, C. J., was of the opinion that the petition should be granted.
According to the majority, a commissioner, unlike a referee, can become a pro tern, judge by an “implied stipulation” of the parties—i.e., by their voluntary participation without objection to his presiding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537047. Public record. Not legal advice.