Judge vs. Commissioner – Is There a Difference?

Some San Jose divorce, custody and/or support matters are assigned to a department where a judge is presiding, while other matters are heard in front of a commissioner. So, what is the difference between the two, and is one better than another?

A judge is elevated to the bench either by election or by appointment by the Governor. A judge must also be a licensed attorney to be eligible to serve on the bench. A commissioner, on the other hand, is an individual who is hired by the court to help out with a judge’s case load. Commissioners must also be licensed attorneys to be eligible to serve as a commissioner. Often, Commissioners work very closely with judges, and judges consider them essential for managing the work of the court.

Commissioners can perform judicial duties involving the determination of contested issues only upon the stipulation of the parties, but with that stipulation they have the same powers as judges. That means that the commissioner has the same power as a judge to hear a court case and make legally binding judgments. Per California Code of Civil Procedure Section 259, “[s]ubject 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).”

In family law, particularly with regard to child support, it is common for a hearing to be in front of a commissioner. Generally, commissioners are knowledgeable in a particular area of law, such as family law. Commissioners with knowledge or backgrounds in particular areas of law are often placed in corresponding departments with the idea that their special skills will serve the public well in those areas.

Overall, whether a judge or a commissioner would be a better fit for a particular matter has to be determined on a case-by-case basis as both judges and commissioners have their own areas of expertise.

Whether your matter is before a judge or a commissioner, our experienced and knowledgeable attorneys can help guide you through your matter effectively and efficiently.  Contact Argyris Mah, LLP at 408-214-6366 to schedule a 20 minute telephone consultation.