The opinion
BENSON, J.
I concur in the majority’s comprehensive opinion in this matter. I write separately to express my concern with the broad language used by the trial court in the portion of its judgment retaining jurisdiction to appoint a monitor. The judgment provides “jurisdiction is expressly retained to appoint a monitor to act on behalf of the court, and to determine the precise duties of the monitor and provisions for compensation.” The trial court’s retention of jurisdiction to appoint a monitor “to act on behalf of the court” foreshadows a potentially unconstitutional delegation of judicial powers.
Unlike the federal courts, which have exercised what they have deemed their “inherent equitable power” to appoint monitors in prison reform cases (see Ruiz v. Estelle (5th Cir. 1982) 679 F.2d 1115, 1161 ; maj. opn., ante, p. 535, fn. 17), the power of California state courts to make such appointments *541 is much more narrowly circumscribed. The statutory and constitutional limitations in California state courts were carefully delineated by Justice Butler of the Fourth District in Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431 [ 227 Cal.Rptr. 460 ]:
“The superior court has no power to assign matters to a referee for decision without explicit statutory authorization. (In re Marriage of Galis (1983) 149 Cal.App.3d 147, 150 [ 196 Cal.Rptr. 659 ]; Bird v. Superior Court (1980) 112 Cal.App.3d 595, 599 [ 169 Cal.Rptr. 530 ]; see generally, 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 48.)
“Particularly, the court has no power to make an unconsented-to general reference, which conclusively decides all or part of a matter, because not only is such a general reference not authorized except by explicit agreement of the parties ([Code Civ. Proc.,] § 638 . . .), but also, the California Constitution prevents delegation of judicial power except for the performance of ‘subordinate judicial duties.’ (Cal. Const., art. VI, § 22; see In re Perrone C. (1979) 26 Cal.3d 49 [ 160 Cal.Rptr. 704 , 603 P.2d 1300 ]; In re Edgar M. (1975) 14 Cal.3d 727 [ 122 Cal.Rptr. 574 , 537 P.2d 406 ].) Deciding a major legal issue in a case, which probably will determine liability, is not a subordinate judicial duty. The Supreme Court said in In re Edgar M. a referee can make a binding determination only in a consensual general reference. (In re Edgar M., supra, at p. 734; see [Code Civ. Proc.,] §§ 638, 644; Estate of Hart (1938) 11 Cal.2d 89, 91 [ 77 P.2d 1082 ].)
“The statutes carefully preserve the distinction of special and general reference to comply with the constitutional mandate; a general reference has binding effect, but must be consensual, whereas a special reference may be ordered without consent but is merely advisory, not binding on the superior court. (See [Code Civ. Proc.,] §§ 644, 645; Estate of Bassi (1965) 234 Cal.App.2d 529, 536-537 [ 44 Cal.Rptr. 541 ]; 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, §§ 50, 51.)” (Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal. App.3d at pp. 435-436.)
In this case, the Department of Corrections has strenuously objected to the appointment of a monitor. In light of this objection and the prohibitions on the delegation of judicial power just discussed, any future appointment of a *542 monitor in this case must ensure that all actions taken by the monitor are purely advisory in nature and not binding on the superior court. 1
Peterson, J., * concurred.
The majority opinion observes that several injunctive conditions imposed by the trial court are not challenged by the department on appeal. (Maj. opn., ante, p. 526, fn. 11.) Apparently also unchallenged by the department is a $1,301,213.26 award of attorney fees and costs favoring respondents and their counsel. This award was rendered in an order dated November 1, 1991, of which we take judicial notice, and consists of the following: $1,053.674.21 in attorney fees, enhanced by a 1.1 multiplier of $105,367.42; $78,650.52 in costs; and $63,521.11 in attorney fees for pursuing the attorney fees and costs award. Significantly, the award of attorney fees and costs was rendered by the trial court before the important factor of plaintiffs’ success in the litigation could be finally measured following appellate review (see Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 247-250 [ 261 Cal.Rptr. 520 ]), and its payment is to be borne by California taxpayers.
Presiding Justice of the Court of Appeal, First Appellate District, Division Five, sitting under assignment by the Chairperson of the Judicial Council.