Smith v. State

SULLIVAN, Judge,

dissenting.

I am unable to agree that Short v. State (1982) Ind., 443 N.E.2d 298, validates the purported judgment of conviction and the sentence sought to be imposed by a master commissioner. The Short opinion treated the matter as one of waiver, in that the defendant made no objection to the actions of the master commissioner. The court in Short premised its determination upon a conclusion that Short was not attacking the subject matter jurisdiction, but rather challenged the authority of the "presiding authority to so act." 443 N.E.2d at 309. Such treatment, however, in my view, failed to recognize that the doctrine of waiver is inapplicable when the purported judgment is a nullity because in contravention of the Indiana Constitution. State ex rel. Smith v. Starke Circuit Court (1981) 275 Ind. 483, 417 N.E.2d 1115.

In Short, the court specifically referred to State ex rel. Smith, supra, 417 N.E.2d 1115, and had a clear opportunity to overrule it but chose not to do so. Rather, the court relied solely upon Gordy v. State (1974), 262 Ind. 275, 315 N.E.2d 362. In doing so, it overlooked the fact that in State ex rel. Smith, supra, the court acknowledged the rule enunciated in Gordy and rejected it. However, in order not to jeopardize the myriad past actions of commissioners throughout the state, the Smith court decreed that the holding "shall have only prospective application, and shall apply to or affect only cases which have not yet reached final judgment...." 417 N.E.2d at 1124.¹

The holding of our Supreme Court in State ex rel. Smith, supra, was and is clear. That holding is worthy of extensive quotation. Quoting from Shoultz v. McPheeters (1881) 79 Ind. 373, the court said:

"'Judicial acts, within the meaning of the Constitution of Indiana, are such as are performed in the exercise of judicial power. But the judicial power of this State is vested in courts. A judicial act, then, must be an act performed by a court, touching the rights of parties, or property, brought before it by voluntary appearance. ...'" Id. at 377, quoting Flournoy v. City of Jeffersonville, (1861) 17 Ind. 169, 173. We further described judicial acts, as distinguished from non-judicial acts, in this fashion:

"The power to hear causes and report facts or conclusions to the court for its judgment is not judicial within the meaning of the Constitution.

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'It is the inherent authority not only to decide, but to make binding orders or judgments, which constitutes judicial power; and the instrumentalities used to inform the tribunal, whether left to its own choice or fixed by law, are merely auxiliary to that power, and operate on persons or things only through its actions, and by virtue of it.'"

Id. at 378, quoting Underwood v. McDuffee, (1867) 15 Mich. 361, 368. Clearly, in light of these principles, a master commissioner can act as an "instrumentality" to inform and assist the court by conducting hearings and reporting facts or conclusions to the court, but only the court has "the inherent authority not only to decide, but to make binding orders or judgments...." Id. See Ind.R.Tr.P. 58. Cf Ind.Code § 84-1-25-1 et seq. (Burns 1973), repealed by Acts 1969, ch. 191, § 3, p. 546.

Yet, the statute at issue in Shoultz unquestionably purported to confer authority on master commissioners to exercise powers which are strictly judicial in quality. Section 419 clearly stated that a master commissioner was to have

"all the power of any judge in vacation, to grant restraining orders, injunctions, writs of habeas corpus, and writs of ne exeat, and to appoint receivers, and hear and determine all motions and matters, and make all orders concerning the same."

This Court asserted:

"A master commissioner is not a court, and judicial duties which courts only can exercise, can not be conferred upon him. This seems so plain upon principle that the support of authority is not needed."

Shoultz v. McPheeters, supra, 79 Ind. at 376. We concluded, in light of the constitutional principles stated above, that "judicial powers can not be vested in officers, such as master commissioners, appointed by judges of the courts." Id. at 375. Thus, section 419, quoted above, was held to be unconstitutional in Shoultz.

In striking down § 419, we distinguished §§ 415 and 418, which conferred to master commissioners only non-judicial powers. The performance by a master commissioner of the types of acts found in §§ 415 and 418 does not amount to the exercise of judicial power by a body other than a constitutional court created by our legislature.

There are striking and compelling similarities between the Shoults case and the case now before us. The statutes in question here, pertaining to Starke, Vander-burgh and St. Joseph Counties, attempt to confer similarly broad powers on the master commissioners of the respective cireuit courts. The sections in question authorize the master commissioner, if so empowered by the cireuit court judge, to, inter alia, "exercise full jurisdiction over any probate matters, civil matters, or criminal matters." Potentially, the only limitations on his power concern juvenile matters and matters of judicial mandate. §§ 33-4-1-74.4; 38-4-1-74.6. See, e.g.,

Further, these statutes provide vastly greater opportunities for the master commissioner's exercise of such powers than did the statute in question in Shoultz v. McPheeters, supra. In Shoultz, the statute permitted the commissioner to exercise jurisdiction only when the regular judge was absent, incompetent, or unable to act by reason of illness. The statutes now before us, however, authorize the commissioner to perform his duties on a full-time basis; he acts independently of the regular judge, and does not depend on the regular judge's absence or inability to act for the statutorily-given authorization to perform various judicial tasks.

Therefore, on the authority of Shoultz v. McPheeters, we conclude that § 88-4-1-74A(b), § 88-4-1-75.1(c), and § 88-4-1-82.2(b) are constitutionally infirm because they attempt to authorize the performance of plainly judicial acts by the master commissioner. Such judicial acts, by our well established principles, may be performed only by judges. "[JJudicial powers cannot be vested in officers, such as master commissioners, appointed by the judges of the courts." Shoultz v. McPheeters, supra, 79 Ind. at 375.

Also underlying our decision here are article five, section eighteen, and article seven, section one, of our Constitution. The former provision clearly states that a vacancy in the office of judge of any court is to be filled by appointment by the governor, such appointment to expire "when a successor shall have been elected and qualified." This provision applies to courts of general jurisdiction. In re Petition for Appointment of Magistrates of Beech Grove, (1940) 216 Ind. 417, 24 N.E.2d 773; State ex rel. Gleason v. Gerdink, (1909) 173 Ind. 245, 90 N.E. 70. The statutes under consideration, by their effect, create offices with virtually the same authority and powers as constitutional courts of general jurisdiction. See Ind. Const. art. 7, § 1; art. 5, § 18. The master commissioner of such a "court" is given virtually unlimited powers to act in a clearly judicial capacity; the statutes extend his authority as far as that of the circuit court judge, except concerning juvenile and mandate matters. These two limitations on the commissioner's powers do not cireumseribe and meaningfully limit his authority and jurisdiction to the point where we could consider his office as less than equivalent to a "constitutional court" having a "general and state character." In re Petition for Appointment of Magistrates of Beech Grove, supra, 216 Ind. at 425, 24 N.E.2d at 776. Further, his actions in a given case are subject to no direct control, oversight or review by the circuit judge. In spite of this grant of broad powers, a master commissioner under these statutes is neither elected by the voters nor appointed by the governor; he is appointed by the cireuit court judge and serves at his pleasure.

Thus, we conclude these statutes are constitutionally deficient in this respect: they establish an office having authority virtually equivalent to that of a constitutional court of general jurisdiction. Insofar as they attempt to establish additional courts for the respective counties, the statutes reflect a proper exercise of legislative authority. Ind. Const. art. 7, § 1. See Elkhart County Bd. Comm. v. Albright (1907) 168 Ind. 564, 81 N.E. 578. See also Ind. Const. art. 7, § 8. However, the judge of such a "court," which, by virtue of the powers given to them by the statutes, is what the master commissioner would be, must be elected by the voters or, if a vacancy occurs in that office, appointed by the governor. Our constitution clearly reflects the intent to maintain as elected officers the judges of courts having general jurisdiction. Ind. Const. art. 2 § 14; art. 5, § 18; art. 7, § 7; In re Petition for Appointment of Magistrates of Beech Grove, supra; State ex rel. Gleason v. Gerdink, supra; Shoultz v. McPheeters, supra.

Stated conversely, the appointment of a master commissioner by a circuit court judge is not necessarily constitutionally improper. However, a commissioner who is selected in this manner must have substantially fewer powers and duties than those granted by the statutes in question. Under the constitutional principles outlined above, an appointed officer of this type must have significantly limited jurisdiction, or his authority must be confined to the performance of non-judicial acts. In re Petition for Appointment of Magistrates of Beech Grove, supra; State ex rel. Gleason v. Gerdink, supra; Shoultz v. McPheeters, supra. See Ind.R.Tr.P. 58; Ind. Code § 34-1-25-1 et seq. (Burns 1973) cited with approval in Shoultz v. McPheeters, supra, repealed by Acts 1969, ch. 191, § 3, p. 546. The statutes in question clearly attempt to grant judicial powers and authority beyond such constitutional limitations. Therefore, we declare the following sections unconstitutional: Ind. Code §§ 33-4-1-744(b);, 88-4-1-82.2(b), and 83-4-1-75.1(c) (Burns Supp.1980).

417 N.E.2d at 1121-23 (footnote omitted)²

Because no valid final judgment has been entered in this case, we are compelled to dismiss the appeal as premature. Rivera v. State (1992) 2d Dist.Ind.App., 601 N.E.2d 445. See McMichel v. State (1994) 5th Dist. Ind.App., 641 N.E.2d 1047. I would do so.

1 . The result in Short, as well as in Gordy-was salvaged by the prospective only application of Smith. The judgment in Short was finalized in December 1980, when Short's Motion to Correct Errors was overruled. The Smith decision was not issued until March 23, 1981.

2 . In light of the constitutional holding of State ex rel. Smith, supra, it is doubtful whether the recently enacted amendments to I.C. 33-4-7-4 and 33-4-7-8 (West's Ann Code.1994 Supp.) will pass muster. While it is commonly acknowledged that trial courts require manpower and technical assistance to deal with growing caseloads, we are not at liberty to overrule the binding precedent set forth by our Supreme Court. That court is at liberty to revisit the issues treated in State ex rel. Smith or perhaps reach some resolution in another fashion. Until it has done so, however, it is inappropriate for this intermediate court to exhibit such effrontery as to usurp that exclusive prerogative.