TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 13, N.D. Sup. Ct. Admin. R.; Judicial Referees
The Supreme Court recently decided Interest of D.Q., 2002 N.D. 188. In D.Q., the district court reversed a judicial referee's decision on parental rights. While the Supreme Court ultimately upheld the district court's decision, the case raised questions regarding the standard of review applicable to a district court's review of a referee decision and to the Supreme Court's review of the district court's review decision.
The Supreme Court decided in Interest of A.N., 201 N.W.2d 118 (N.D. 1973), that the language of N.D.C.C. § 27-20-56 compels the court to review juvenile cases under a modified trial de novo standard. See Interest of M.L., 239 N.W.2d 289 (N.D. 1976) (explaining standard). On the other hand, the court decided in Benson v. Benson, 495 N.W.2d 72 (N.D. 1993), that a district court's review of a judicial referee decision must be made under the "clearly erroneous" standard. Thus, when parties challenge a judicial referee decision in a juvenile case, the district court is required to review the case under the clearly erroneous standard, while the Supreme Court is then required to apply the modified trial de novo standard if the district court's decision is appealed. D.Q., 2002 N.D. 188, ¶¶ 8-9.
The Committee may wish to address the fact that N.D. Sup. Ct. Admin. R. 13 provides no guidance regarding the standard of review to be applied by district courts reviewing judicial referee decisions. Instead, the Supreme Court was required to determine the applicable standard of review for district courts in Benson and the court has been required to restate the standard in each case since Benson in which a district court reviewed a referee decision. See, e.g., D.Q., at ¶ 8.
In 1986, the Committee had an opportunity to address the question of what standard should apply to district courts reviewing referee decisions under Rule 13. The Committee declined to state a standard, however, because the Supreme Court had just approved Rule 13 and had put it into effect on an emergency basis. Committee Minutes, Jan. 1986, at p. 9. The court was somewhat critical of the Committee's inaction on Rule 13 when it addressed the standard of review issue in Benson.
The fact that the standard of review for district courts is not stated in Rule 13 may cause confusion among parties and courts. For example, the district court in D.Q. did not state the standard of review it applied in overruling the referee decision at issue. See D.Q., at ¶¶ 7, 10.
For these reasons, the Committee may wish to discuss whether to amend Rule 13 to include an explicit statement of the standard of review applicable to district court review of referee findings. Proposed language for such an amendment, which inserts the standard developed by the Supreme Court, follows this memo.
Alternatively, the Committee may wish to discuss whether a different standard of review is appropriate. The language of Rule 13(11)(b) suggests that the district court has discretion to call a hearing in the course of its review of a referee decision. The presence of this language suggests that the drafters of Rule 13 may have contemplated application of a more thorough review procedure than contemplated under the "clearly erroneous" standard. Justice Maring's attached email comment indicates that she would favor giving district courts more latitude to review referee decisions.
Another issue is the standard of review to be applied by the Supreme Court. In a special concurrence to D.Q., Justice Neumann pointed out that application of different standards of review by the district court and the Supreme Court to referee decisions in juvenile cases was "incongruous." He suggested that the clearly erroneous standard be applied by both reviewing courts. Depending on what the Committee decides relative to Rule 13, the Committee may wish to discuss whether staff should begin work on drafting a rule that would allow a consistent standard of review to be applied by both the district courts and the Supreme Court.