TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 13, N.D. Sup. Ct. Admin. R., Judicial Referees
Proposed amendments to Rule 13's review procedures have been included in the annual rules package now pending before the Supreme Court. The Court recently decided Interest of A.B., a case in which the previous review procedures under Rule 13 were analyzed. The Court has asked the Committee to take a look at Rule 13's review procedures in light of the A.B. decision.
In A.B., the Turtle Mountain Tribe requested review of a referee decision involving an Indian child. The district court reviewed the referee decision and reversed it, and further decided that jurisdiction in the matter should be transferred to tribal court. The district court reversed the referee decision without awaiting a response from the opposing party, Cass County. The district court apparently did not review the record of the referee hearing before making its decision to reverse.
The Supreme Court decided that the district court did not procedurally err in reversing the referee decision before receiving a response from the opposing party, in part because the review procedure in Rule 13 does not mention anything about out responses. The Court commented that "[w]e nevertheless recognize N.D. Sup. Ct. Admin. R. 13 does not provide detailed guidance for district court review of a judicial referee's decision, and we refer this rule to the Joint Procedure Committee for appropriate study."
In crafting proposed amendments to Rule 13, the Committee already has expanded the procedural guidelines for a district court's review of a referee decision. The approved amendments require notice to be given to all parties if the district court rejects the referee's findings and orders a hearing.
In A.B., however, the Supreme Court concluded that the district court did not reject the referee's findings, but the referee's legal conclusions. Because the approved amendments to Rule 13 refer only to findings, a district court could still act on a party's request to review a referee decision, and reverse the referee's conclusions of law, without giving the other party notice or an opportunity to respond.
Proposed amendments to Rule 13 are attached. The amendments would require that a party requesting review give notice of the request and would allow a party opposing the request an opportunity to respond.
If the Committee chooses to adopt additional amendments to Rule 13, the Committee should consider whether to send the additional amendment proposals directly to the Supreme Court so the Court can address them during its deliberations on the annual rules package.