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Randall Settlemire wanted a judge — not a commissioner — to handle the messy details of his divorce, including his wife Patricia’s request for a restraining order. The San Luis Obispo County Superior Court assigned it to a commissioner anyway to do some fact-finding. Not so fast, wrote the Second District Court of Appeal in an opinion published Monday. “It is a fact of judicial life that commissioners are often given assignments that judges do not want to perform,” wrote Justice Arthur Gilbert, with Justices Kenneth Yegan and Paul Coffee concurring. “The trial court’s broad order for a reference hearing denied Settlemire’s constitutional right to have his case heard by a superior court judge,” Gilbert concluded. The case delves into the thorny politics that surround judicial assignments and the power of commissioners. In September the Judicial Council received a task force report that clarified the role of “subordinate judicial officers.” Among the recommendations, the report noted that family and juvenile matters have such broad impact that judges, not commissioners, must decide them. In the East Bay, there was a high-profile standoff between Presiding Judge William McKinstry and public defenders when the court assigned a commissioner to hear misdemeanor traffic criminal cases without Public Defender Diane Bellas’ consent. Eventually, Alameda County Superior Court leaders backed down. In the Settlemire case, the Second District acknowledged that judicial egos are often in play when family court duties are handed out. “Hearings can be battlegrounds where withering love gives way to rancorous hostility. This environment takes an emotional toll on the parties, their counsel, and the trial judge,” Gilbert wrote. “Perhaps that is why some judges view the assignment to sit in the family law department as a form of banishment to the lower circles of the judicial inferno.” Family law litigants frequently prefer experienced commissioners over rookie judges, and without commissioners, courts would be unable to tackle burgeoning family court caseloads. But, Gilbert said, the Judicial Council task force report noted that since family cases continue to be foisted on commissioners, there may be the perception that they are unworthy of a judge’s attention. In the Settlemire case, San Luis Obispo County Court Commissioner Lane Stewart issued a temporary restraining order and set the matter over for an order to show cause on a host of other issues — including temporary child custody, visitation, division of the couple’s assets, and barring Settlemire –a corrections officer — from carrying a weapon. Settlemire’s attorney, Tony Marlow, argued that matter should have been heard by a judge because he wanted to present witnesses for all of Patricia Settlemire’s requests for temporary orders. He filed a peremptory challenge to disqualify Stewart but the court assigned another court commissioner, Ginger Garrett, to make findings of fact. Marlow petitioned for a writ of mandate because he didn’t agree to have a commissioner preside over the case. Although commissioners are routinely used to decide small issues in a larger case, court officials “may not, under the guise of reference, cause the lion’s share of the case to be heard by a referee” as San Luis Obispo County Superior Court did, the court ruled. The San Luis Obispo court’s attorney, Brenda McCormick of Ventura’s Benton, Orr, Duval & Buckingham, could not be reached for comment Monday afternoon. Marlow, Settlemire’s Paso Robles attorney, said that the case should be a wake-up call for courts. “It’s an issue that goes statewide,” Marlow said. “Ninety-nine percent [of the litigants] are pro pers and they don’t know the difference between a judge and a commissioner.” The full text of the published opinion in Settlemire v. Superior Court, B158416, will appear in Wednesday’s California Daily Opinion Service.

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