Rooney v. Vermont Investment Corp.

MOSK, J.

I concur.

I agree with the result reached by the majority in this case, and in general with the explication of a court commissioner’s authority. However I cannot acquiesce in the majority’s tardy disapproval of Mosler v. Parrington (1972) 25 Cal.App.3d 354 [ 101 Cal.Rptr. 829 ], a case in which this court unanimously denied a petition for hearing on July 5, 1972.

An action is contested when an answer is filed in response to a complaint. Thereafter determination of the merits of the contested case is the ultimate function of the judicial process, and, in the absence of a stipulation, requires a duly constituted judge for its consummation. One cannot gainsay the observation of the Court of Appeal that whether or not the motion is contested the major surgery involved in striking an answer “is hardly a ‘subordinate judicial duty.’ ” That, simply, was the rule of Mosler and I am convinced it is correct.

One need not be unsympathetic to the administrative complexities of a huge metropolitan court to insist, despite the dictates of expediency, that substantive controversies between litigants be decided only by judges to whom the constitutional responsibility has been assigned. (Cal. Const., art. VI, §§ 1, 4, 10.) As Justice Cardozo wrote, “codes and statutes do not render the judge superfluous.” (Cardozo, Nature of the Judicial Process (1921) p. 14.) Court commissioners should be permitted to perform only subordinate judicial duties. I would place repeated emphasis upon the adjective.

Clark, J., concurred.

Respondents’ petition for a rehearing was denied December 19, 1973.