Pro Tem Judges

August 13, 2023


Most small claims court cases are relatively simple and most require only logic and a basic knowledge of the law to decide. An example of such a case would be if someone threw a rock through your window and broke it, and then did not pay you. At court, if you have pictures, witnesses, and a window repair bill, almost anyone would decide that rock thrower owes you (at least) the cost of replacing your window.

This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

Because most small claim cases are relatively easy to decide, and because the amounts in dispute are smaller; in several states, small claim courts can appoint Pro Tem judges, which saves them money. Pro Tem (the full name is Pro Tempore) judges/commissioners are usually lawyers that have agreed to be temporary judges in small claims court. Full-time judges usually wear black robes, and Pro Tems usually wear brown robes.

When there is a Pro Tem judge at a small claims court, usually all parties are given a form where they are asked to stipulate (agree) for their case to be decided by the Pro Tem judge. This form is usually named something like “Stipulation for the Appointment of Court Commissioner to act as Temporary Judge”. Most parties can confidently sign such agreement forms.

Pro Tems (rent-a-judges) are perfect for common matters. However, in post-judgment recovery situations, some Pro Tem judges do not fully know the letter and spirit of the laws related to judgment recovery. Some Pro Tem judges have never heard of assignments of judgment or affidavits of identity, or how to handle contempt issues when judgment debtors do not comply. Recently, I read where one Pro Tem small claims court judge did not allow interest to be added to a judgment debt, which in California is currently by law, 10% simple interest per year.

Some judgment recovery specialists do their best to refuse to stipulate to Pro Tem judges hearing their cases, and insist on a full-time commissioner or judge. If there is no choice, then they make sure they bring printouts of the laws relevant to their matter, to show to that judge in case they do not know all the post-judgment laws.

Of course, there are many good Pro Tem judges out there. Small claim courts are usually crowded, and you may have to wait an hour before your case is heard. Some judgment recovery specialists watch how a Pro Tem judge handles things, before stipulating to them hearing their case. Sometimes they show up the day before, and watch them in session.

If you see that the Pro Tem judge does not seem to understand post-judgment laws; when your case comes up or when you sign in with the court, you can say something like “Excuse me, before we begin, I want the court to know that I do not stipulate to having this matter heard before a commissioner and respectfully request that the matter be transferred to a courtroom where a full-time judge presides; and if a judge is not available today, please schedule one within the next 15 days”. Of course, when you are talking to any judge, always begin with “your honor”.

Then, you listen to what the Pro Tem judge says. If they say something like “There are no judges in this courthouse.”, then say something like “Then your honor, I respectfully request that if a judge cannot be brought here to hear this matter, then please transfer this case to a courthouse where it can be heard before a judge, pursuant to Code of Civil Procedure section 259(d)”.

What happens after such a request is made cannot be predicted, either the judge knows the law or not. If they do not, they will probably look it up. They might say “Please take a seat, we will handle this during the recess.” If the judge says something like that, respond with “For the record, your honor, will the court please order the judgment debtor, Mr. Dan Debtor, to remain in the courtroom until the court makes its order as to where this matter will be heard?” The judge will probably then address the judgment debtor and say: “Mr. Dan Debtor, you are ordered to remain in the courtroom, except for bathroom and water breaks, until the court determines where this matter will be heard.”

If the judge agrees with your request, it does not matter whether the judgment debtor themselves have agreed to stipulate to use that Pro Tem judge; because if one side will not agree to a stipulation, then there is no stipulation, and the matter usually cannot be heard by a Pro Tem judge. In California, this situation is covered by Code Civil Procedure section 259(d).

Of course, stipulation policies vary depending on which court. In some courts, you must sign the acceptance/consent form before any cases are heard. By the time you see a problem, you are locked in. In such situations, after you get your form, you might be able to explain to the bailiff you wish to see how the Pro Tem judge handles things before you agree to stipulate, and this sometimes works. Usually, all parties must sign a Pro Tem stipulation form each time they appear in court.

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