TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 18, 2013
RE: Rule 13, N.D.Sup.Ct.Admin.R., Judicial Referees
Judge Reich has submitted an e-mail with questions regarding whether referee proceedings under Rule 13 should be recorded and subject to district court review when the referee is overseeing a small claims court or non-criminal traffic case.
Under N.D.C.C. § 27-08.1-04, attached, parties in small claims court waive the right to appeal the decision in any other court. Under N.D.C.C. § 39-06.1-03(5)(a), attached, a person may not appeal from a traffic violation finding by a district judge or magistrate. The Supreme Court in City of Grand Forks v. Riemers, 2008 ND 153, ¶ 5, attached, explained that "[t]he right to appeal is governed solely by statute." A district court review of a referee decision in a small claims or traffic case under Rule 13, §11, seems to be equivalent of an appeal and an such an appeal is not be authorized by statute.
Proposed amendments to Rule 13 that would exempt small claims and traffic matters from district court review under §11 are attached.
Rule 13, §7, requires referee proceedings to be on the record. Under N.D.C.C. § 27-08.1-03, a court reporter is not "required to be present" at a small claims court hearing and a party who wants a court reporter must pay for one. Staff was not able to locate language in N.D.C.C. ch. 39-06.1 addressing whether a traffic violation hearing should be recorded. The fact that municipal court traffic violation hearings are appealable under N.D.C.C. § 39-06.1-03 suggests that hearings at the municipal court level should be on the record.
The record hearing requirement was part of Rule 13 when it was first approved in 1985 and
has not been amended. The committee may wish to discuss whether it would be appropriate
to amend this provision to exempt small claims and traffic violation hearings from the