Nierenberg v. Superior Court

In Nierenberg v. Superior Court (1976) 59 Cal. App. 3d 611, during a criminal trial, a commissioner sitting as a temporary judge cited a deputy public defender for direct contempt, with the hearing to be held at the conclusion of the trial. ( Nierenberg, supra, 59 Cal. App. 3d at p. 613.) Five days after the criminal defendant's acquittal and release, the contempt hearing commenced. ( Id. at p. 614.) At the outset of the hearing, the public defender and his counsel expressly refused to stipulate that the commissioner could serve as a judge or that he had the power to act as a judge at the contempt hearing. (Ibid.) The commissioner presided over the contempt hearing without a stipulation, adjudged the public defender in contempt, and fined him. On petition for writ of certiorari, the Court of Appeal annulled the order adjudging the deputy public defender in contempt. ( Id. at pp. 614-615.) The court held that the acquittal of the criminal defendant, discharge of the jury, and order releasing the defendant from custody "marked the 'final determination' of that 'cause' in which 'the parties litigant' had stipulated to empower the commissioner to act as a judge pro tempore," and that after final determination of the criminal action, the stipulation no longer was effective to confer judicial power on the commissioner to adjudicate the contempt, which was a cause distinct from the underlying criminal proceeding, and one which required a stipulation of the parties litigant thereto to vest the commissioner with the power to act as a temporary judge under California Constitution, article VI, section 21. ( Nierenberg, supra, 59 Cal. App. 3d at pp. 615-616.)