I previously posted on the constitutional limitations of court commissioners in Utah, as set forth in the Utah Supreme Court case of Salt Lake City v. Ohms, 881 P.2d 844 (1994). In a nutshell, the court commissioners can perform an extremely wide variety of tasks in assisting the judiciary administer justice efficiently and effectively. They simply cannot perform so-called “core judicial functions” or exercise “ultimate judicial authority” such as making final adjudications. Thus, they do not hear the trials of family law matters, which are reserved for judges. But they can make recommendations on any issue and can perform almost any function other than making final adjudications.
The commissioners do have authority to impose sanctions for contempt of court. In some districts, the practice seems to be that the commissioners will determine whether or not a prima facie case of contempt has been made and then certify the ultimate issue of contempt for hearing by the judge at an evidentiary hearing. In most districts, hearings before commissioners are conducted by proffer, meaning that attorneys verbally offer to the court the substance of what their clients and witnesses would testify to if placed under oath on the witness stand. An evidentiary hearing, on the other hand, often involves taking the sworn testimony of witnesses.
The duties and authority of court commissioners are set forth in the Utah Rules of Judicial Administration, Rule 6-401. For convenient reference, I set forth that section below.
Rule 6-401. Domestic relations commissioners.
To identify the types of cases and matters commissioners are authorized to hear, to identify the types of relief commissioners may recommend and to identify the types of final orders commissioners may issue.
This rule shall govern all domestic relations court commissioners serving in the district courts.
Statement of the Rule:
(1) Types of cases and matters. All domestic relations matters filed in the district court in counties where court commissioners are appointed and serving, including all divorce, annulment, paternity, cohabitant abuse and child protective order matters, dating violence protective orders, orders to show cause, scheduling and settlement conferences, petitions to modify divorce decrees, scheduling conferences, and all other applications for relief, shall be referred to the commissioner upon filing with the clerk of the court unless otherwise ordered by the presiding judge.
(2) Authority of court commissioner. Court commissioners shall have the following authority:
(2)(A) Upon notice, require the personal appearance of parties and their counsel;
(2)(B) Require the filing of financial disclosure statements and proposed settlement forms by the parties;
(2)(C) Obtain child custody evaluations from the Division of Family Services or through the private sector;
(2)(D) Make recommendations to the court regarding any issue, including a recommendation for entry of final judgment;
(2)(E) Require counsel to file with the initial or responsive pleading, a certificate based upon the facts available at that time, stating whether there is a legal action pending or previously adjudicated in a district or juvenile court of any state regarding the minor child(ren) in the current case;
(2)(F) Impose sanctions against any party who fails to comply with the commissioner’s requirements of attendance or production of discovery;
(2)(G) Impose sanctions for contempt of court;
(2)(H) Issue temporary or ex parte orders;
(2)(I) Conduct settlement conferences with the parties and their counsel. Issues that cannot be settled shall be certified to the district court for trial; and
(2)(J) Conduct pretrial conferences with the parties and their counsel. The commissioner shall make recommendations on all issues under consideration at the pretrial and submit those recommendations to the district court.
(3) Duties of court commissioner. Under the general supervision of the presiding judge, the court commissioner has the following duties prior to any domestic matter being heard by the district court:
(3)(A) Review all pleadings in each case;
(3)(B) Certify those cases directly to the district court that appear to require a hearing before the district court judge;
(3)(C) At the commissioner’s discretion and after notice to all parties or their counsel, conduct hearings with parties and their counsel for the purpose of taking testimony or proffers of testimony, except in cases previously certified to the district court;
(3)(D) Coordinate information with the juvenile court regarding previous or pending proceedings involving children of the parties; and
(3)(E) Refer appropriate cases to mediation programs if available.
(4)(A) Commissioners shall not make final adjudications.
(4)(B) Commissioners shall not serve as pro tempore judges in any matter, except as provided by Rule of the Supreme Court.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.