Stipulation to Temporary Judge: Three Effects

Once parties in a marital dissolution case elect to work with a Temporary Judge (aka “Private Judge” or “Judge Pro Tempore”) instead of litigating their case publically before a judge sitting in the courthouse, the parties must file with the Court an appointment document known as “STIPULATION AND ORDER RE: APPOINTMENT OF TEMPORARY JUDGE,” or “Appointment Stip” for short.

Broadly speaking, the Appointment Stip is the method by which parties appoint as their judge a licensed attorney who meets the minimum qualifications.  Sometimes such an appointment comes about through a referral by the Court; other times, it results from the parties themselves deciding to resolve their marital dissolution case through less public legal proceedings.  In either instance, the Appointment Stip officially establishes a non-courthouse, Temporary Judge to hear and act on the case.

Because an Appointment Stip is not designed to be a document of basic explanation, it does not clarify the judicial powers that belong to the simple role of “judge.” These powers,
however, are inherent in the appointment of a Temporary Judge.  So, for example, within the scope of the appointment, the Temporary Judge might do case management and calendar changes,just as a courthouse judge might do.  The Temporary Judge might also be required to maintain decorum, refer the matter to additional or alternate processes, and/or comment, if necessary, on both parties’ engagement in good faith to work toward resolution.

The language of the Appointment Stip is quite explicit, however, in its establishment of clear ties between the acts of the Temporary Judge and the judicial authority of the Superior Court. For example, the Stip clearly states at the outset that the Temporary Judge is appointed “to hear and determine … all outstanding issues in this proceeding, as defined herein …, until final determination in the Superior Court.”  The Appointment Stip, thus, makes it clear that the final authority belongs to the Superior Court.  The authority of the Temporary Judge, as defined and limited in the terms of the Appointment Stip, is a surrogate for the authority of the Superior Court.

The Appointment Stip also solidifies the connection between the Temporary Judge and the public authority of the Superior Court in the following three ways:

1.  By agreeing to be appointed according to the terms of the Appointment Stip, the Temporary Judge agrees to be bound to the judicial code of ethics, just as a courthouse judge is similarly bound.  The Appointment Stip, in other words, mandates that a Temporary Judge, just like a public, courthouse judge, cannot be for or against either side.

2.  Absent a clear and specific limitation in the language of the Appointment Stip, the scope of authority for a Temporary Judge, by default, is for all purposes and all issues, which is the same scope of authority as that of a public, courthouse judge.

The Appointment Stip, however, always limits the authority of the Temporary Judge to the
written terms of the appointment, which means that the Temporary Judge will have as much or as little judicial authority as the written appointment accords.  Her/his scope of authority can be unlimited (All Purpose) or limited to a particular issue (e.g., real estate sale), or limited to a type of procedure (e.g., settlement conference or case management).

3. The Appointment Stip provides the Temporary Judge the authority to make binding judicial orders within the scope of the order of appointment.  In settlement, the Temporary Judge is limited to the memorialized agreement of the parties; in trial or a hearing, the All Purpose Temporary Judge is only limited by the procedural due process legal limits that bind all judges in hearing and resolving disputes. This is the same authority as that of a judge sitting in the courthouse.

Whether made by a courthouse judge or by a Temporary Judge, an order, to be valid, has
to meet the legal standards:  it has to be recorded or memorialized by a court reporter or by some other authorized means.  Generally, in non-courthouse settlement proceedings with a Temporary Judge, these legal standards are met by the parties signing a final written memoralization or ‘term sheet’ which is then adopted, through the Temporary Judge’s signature, as the settlement of the parties. Usually, as a final stage, these terms are then written up as a more formal agreement or order, signed by the Temporary Judge, and filed in the court house in the legal case file.

There is, however, a key element of difference here when we look at the issue of jurisdiction.  Whereas a courthouse judge has unlimited jurisdiction to make binding judicial orders, the jurisdiction of a Temporary Judge is limited to the scope of the order of appointment.  As stated before, the Appointment Stip can accord the Temporary Judge an unlimited scope of authority, just like that of a public judge on the bench, or it can limit the Temporary Judge’s scope of authority to specific tasks or issues.

In light of the foregoing, parties who elect to appoint a Temporary Judge should now have a clear understanding of the dominant conditions to which they are stipulating when they sign an Appointment Stip.

©2011 James Frederic Cox

About James Frederic Cox

Former Family Law Settlement Officer, with experience in over 13,000 cases,working as a Private Neutral in family law dispute resolution, from mediation through settlement conference to trial.
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