TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 10, 1014
RE: Rule 13, N.D. Sup. Ct. Admin. R., Judicial Referees
The committee proposed that Rule 13 be amended to exempt small claims and traffic court procedures from the rule's review requirements. The Supreme Court approved these amendments effective March 1, 2014. At the September 2013 meeting the committee began a discussion of whether the rule should be further amended to change the district judge review requirements.
Judge Reich submitted an email before the September meeting pointing out that the Court's Sept. 13 amendments to the rule had expanded the types of proceedings that were subject to district court review. After discussing the rule's review standards and procedures, the committee indicated a desire to consider amendments to the rule's review provisions. This discussion is at pages 2-6 of the attached minutes. Staff has prepared two alternative drafts reflecting the committee's thoughts on rule amendments.
Alternative A would retain the rule's Section 8 provision allowing a party to request that a proceeding assigned to a judicial referee be heard instead by a district judge and delete the rule's Section 11 review provision. Several members commented at the September meeting that a party who chooses not to take advantage of the right to have the proceeding heard by a district judge in the first place should not get the chance to have a district judge review the referee's work.
Alternative B would replace the de novo review now required by the rule with a deferential review conducted under the "clearly erroneous" standard. Several members commented at the September meeting that doing a de novo review was an onerous, time consuming process. They said that, because transcripts of referee proceedings were rarely available, the judge is required to listen to tapes of the entire proceeding in order to complete the review.
The alternative drafts are attached.
When adopted, Rule 13 contained a review procedure but no standard of review. In Benson v. Benson, 495 N.W.2d 72 (1993), the Court determined that the "clearly erroneous" standard was appropriate for district judge reviews of referee decisions. In Interest of D.Q., 2002 ND 188, the Court found it "incongruous" that, in juvenile cases, the district court was allowed to apply the clearly erroneous standard to its review while on appeal the Court was required by the law of the time to apply a modified trial de novo standard. Copies of these cases are attached.
In 2003, after D.Q., the committee took up Rule 13 to discuss whether a specific standard of review should be added to the rule. The committee rejected a proposal to make the clearly erroneous standard part of the rule and instead proposed that a "de novo review of the record" be required. As shown in the attached excerpts from the minutes, committee members thought that judges should be able to use their discretion in reviewing referee decisions and that the de novo standard allowed an appropriate exercise of discretion.
In addition to the amendments related to review procedure, Judge Reich would like the committee to address whether presiding judges should be given the authority to authorize referees to appoint emergency guardians under N.D.C.C. 30.1-28-10. He explains in the attached email that the South Central Judicial District is seeing an increased number of emergency guardian petitions and that this is straining court resources. Proposed language adding 30.1-28-10 to the list of authorized referee proceedings is included in both rule drafts.