dissenting with separate opinion.
I respectfully dissent. Master Commissioner Rubick did not have the authority to enter a final order on contempt. Our legislature has promulgated statutes that should control our disposition of this case. The majority has ignored those statutes.
A Marion County master commissioner has the powers and duties prescribed for a magistrate under Indiana Code sections 33-23-5-5 through 33-23-5-9. I.C. § 33-33 — 49—16(e). Indiana Code section 33-23-5-8 provides:
Except as provided under [Indiana Code sections 33-23-5-5(14) and 33-23-5-9(b) ], a magistrate:
(1)does not have the power of judicial mandate; and
(¾) may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.
(Emphasis added). Indiana Code section 33-23-5-5(14) says that a magistrate may “[e]nter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense as described in [Indiana Code section 33-23-5-9],” Likewise, Indiana Code section 33-23-5-9 provides:
(a) Except as provided under subsection (b), a magistrate shall report findings in an evidentiary hearing, a trial, or a jury’s verdict to the court. The court shall enter the final order.
(b) If a magistrate presides at a criminal trial, the magistrate may do the following:
(1) Enter a final order.
(2) Conduct a sentencing hearing.
(3) Impose a sentence on a person convicted of a criminal offense.
*1155(Emphasis added). Read together, these statutes establish that a magistrate or Marion County master commissioner can only enter a final appealable order in two situations: (1) following a criminal trial over which he or she has presided or (2) when sitting as a judge pro tempore or a special judge. In reaching its result, the majority fails to even mention Indiana Code sections 33-23-5-8 and 9.
If the powers of Marion County’s master commissioners are to be expanded, that should be the decision of our legislature, not this court. Our legislature had a logical reason for limiting the powers of Marion County’s master commissioners: they, unlike Marion County’s judges, are not elected and therefore are not directly accountable to the people. They are appointed by, and serve at the discretion of, Marion County’s judges. See I.C. §§ 33-33-49-12, -15, -16; Marion Superior Court Administrative Rule 304(C). Magistrates and commissioners do good and important work, but, in the end, they are not judges. Rather, they work for the judges and should be supervised by the judges. That is the purpose of requiring a judge to enter the final order in all but the few limited scenarios discussed above. If requiring judges to review and either approve or disapprove the action of their magistrates and commissioners is presently unfeasible, then the legislature can either create more judgeships or expand the powers of magistrates and commissioners. Until then, we must apply the statutes as written. The majority has failed to do so.
As for the specific facts of this case, I do not mean to suggest that a magistrate or commissioner should not play the primary role in identifying and sanctioning contemptuous behavior that occurs on his or her watch. See I.C. § 33-23-5-5(6) (granting magistrates authority to punish contempt.) In such situations, the magistrate or commissioner observes the behavior first hand and is best able to determine whether it rises to the level of contempt. Nonetheless, magistrates’ and commissioners’ contempt findings and resulting punishments, as with most of their decisions, should be reviewed and either approved or disapproved by the judges who employ and supervise them. Our legislature could hardly have been more clear when it said that magistrates and Marion County master commissioners “may not enter a final appealable order” except in the narrow circumstances outlined in Indiana Code sections 33-23-5-8 and -9.
In sum, I would hold that Master Commissioner Rubick had the power to punish contempt but that his action should have been reviewed by Judge Gifford. Master Commissioner Rubick was not entering a final order following a criminal trial over which he presided, nor was he sitting as a judge pro tempore or a special judge. Rather, he made a contempt finding during an initial hearing while serving as a Marion County master commissioner. Therefore, while he did have the authority to punish the contempt under Indiana Code subsection 33-23-5-5(6), the final order should have been entered by Judge Gifford under Indiana Code sections 33-23-5-8 and -9. I would remand this cause to give Judge Gifford the opportunity to either approve or disapprove the contempt finding and the resulting sentence.