TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 53, N.D.R.Civ.P., Masters
Amendments to Fed.R.Civ.P. 53 took effect December 1, 2003. While the amendments were done in a style consistent with the form amendments to the federal appellate and criminal rules, the end result was a complete overhaul of the rule. The advisory committee notes state that the intent of the amendments was to revise the rule "to reflect changing practices in using masters."
N.D.R.Civ.P. 53 is very similar to the unamended Fed.R.Civ.P. 53. There is very little case law interpreting N.D.R.Civ.P. 53, which suggests that the use of masters is not widespread in North Dakota. Perhaps this is because (unlike in the federal system) North Dakota has judicial referees who assume the role of "masters" in certain categories of cases. Because there is no indication in North Dakota law that a unique approach to dealing with masters has been developed in this state, the proposed amendments to N.D.R.Civ.P. 53 echo the federal approach, which was to completely overhaul and modernize the rule.
The few unique provisions that N.D.R.Civ.P. 53 contained are integrated into the proposed amendments: on lines 112-117 there are provisions regarding objections to the appointment of a given person as a master; on lines 139-140, there is a swearing requirement for masters; and on lines 143-148, there is a provision for use of masters in eminent domain matters.
If the Committee decides to adopt the proposed amendments, it may wish to consider whether N.D.R.Ct. 6.5 should be repealed. The history of this rule is foggy, but it dates back to at least 1963, when the Supreme Court promulgated its Rules of Court for the District Courts. Since this event postdated the adoption of the Rules of Civil Procedure (and Rule 53) in 1957, one could speculate that Rule 6.5 (then called Rule XI) was designed to supplement Rule 53. Rule 53 as overhauled by the proposed amendments, however, seems to cover the subject of masters more thoroughly, possibly making Rule 6.5 obsolete.