TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 17, 2013
RE: Rule 13, N.D. Sup. Ct. Admin. R., Judicial Referees
The committee discussed Rule 13 at the January meeting and approved proposed amendments relating to traffic and small claims court. The committee's proposal is before the Supreme Court as part of the annual rules package.
In the wake of legislative action, the Court made its own amendments to Rule 13, which took effect September 1. A copy of those amendments is attached along with a memo from SCJD Court Administrator Donna Wunderlich explaining the impact of the amendments on clerk duties.
Judge Reich has suggested that the committee look at the Court's amendments to Rule 13. In his email, copy attached, he stated that removing language related to referee appointment as a magistrate "means that when referees are assigned to preside over permanent protection order hearings and disorderly conduct restraining order hearings, the parties have a right to request that the matter be heard by a district court judge instead of a referee and also have a right to have permanent orders signed by a referee reviewed by the district court. This requires more work for the clerk of court in sending out notices and also creates more work for judges by having to hear and review cases that had been assigned to referees."
The amendments to Admin. Rule 13 follow statutory amendments proposed by the Court and enacted by the legislature. A copy of H.B. 1075, which contains the amendments, is attached. The removal of the "also appointed as a magistrate" parts of Admin. Rule 13 was done because, under the statutory changes, these duties are now approved for delegation directly to the referee, without a need for additional appointment of the referee as a magistrate.
As to the amendments the committee has sent to the Court, Jim Ganje has submitted comments, attached, suggesting that the proposed changes relating to small claims court are unnecessary. In addition, in an attached email responding to Judge Reich's comments, Mr. Ganje suggests that perhaps exempting protection or restraining orders entered by referees from the Section 11 review process might be a solution. The committee may wish to discuss Mr. Ganje's comments as it considers whether to make changes to the proposal now before the Court.
Draft amendments to Admin. Rule 13 that attempt to integrate the recent changes made by the Court with those proposed by the committee are attached. In the draft, staff has restored the magistrate appointment language in Section 5(b) as far as it referred to N.D.C.C. § 39-06.1-03. Arguably, the committee's proposed reference to the statute could be moved to the list in Section 5(a) because N.D.C.C. § 39-06.1-01 states that: "'Official' means a municipal judge or a magistrate or other qualified individual appointed by the presiding judge of the judicial district to serve for all or part of the judicial district." The statutory definition seems adequate to embrace a referee.