In 1989, a group of referees — Jeff Liston, Larry Smith, Wayne Strunk, Nancy Ferguson, Peg Gasper and Kate Graham — spent many hours over food, lists, incorporating documents, and manuals to create the foundation for the Ohio Association of Court Referees. They drafted a constitution and bylaws and, with the help of our Charter Members, raised enough money to fund our first statewide meeting, which was held on September 23, 1989. Sixty-seven referees were present. The group passed by-laws, elected its first Board of Trustees, and began the tradition of education and networking that continues today.
Only two years earlier, the Judicial College had started offering a few seminars to referees that we had designed. Before that, most of us got our CLE from seminars designed by the attorneys who practiced before us or from the manuals our judges shared from their “judges only” seminars. As we got the chance to meet other referees from all around the State, we realized that some of us had very limited responsibilities, while others had been given broad authority. We compared notes, war stories, and frustrations, but mostly we learned from each other. We realized that there were many referees who could benefit, as we had, from networking with other referees. We came to appreciate, even more than before, that we were (as one appellate court would later call us) the “workhorses” of the Ohio judicial system. It was time for a state-wide association.
Our goals were to increase membership, establish a newsletter for statewide distribution, create credibility for both referees and the Association, and improve educational opportunities. Some referees wanted to come, but couldn’t because their courts feared we were organizing a union! The majority of referees paid their own dues for many years.
We take it for granted now that we can pick up the phone or send an email to a magistrate at the other end of the state for help. That was surely not the case in 1989. The role that magistrates play in the Ohio justice system has changed significantly since 1989, when we were known as “referees.” We had pretty broad authority in civil and juvenile matters. In criminal matters, however, the authority was limited to arraignment and preliminary matters, and we couldn’t handle anything that was dispositive of a case. Referees hearing traffic cases had slightly more authority and could accept pleas, but they could not determine guilt or innocence. Back then (and it is still true today), what we did was subject to whatever the order of reference from the judge said. Some of us had very limited responsibilities, while others had very broad orders of reference.
After the Association was formed and referees from all over the State started talking to each other, the leadership of the Association recognized that its members wanted to address several issues by changing the rules of practice and procedure.
The appropriateness of the title “referee” was at the top of the list. The problems with the title were obvious: many litigants, particularly those representing themselves, thought we were mediators or people who were coming in to pre-try a case for the judge. That is, we were not anyone with any real authority.
We also commiserated about what had become for many a burdensome report-writing obligation under Civ.R. 53 and Juv.R. 40. Back then, every decision of a referee was subject to independent review by a judge, whether or not an objection had been filed. In order for a judge to meet the standard of “independent review” of a referee’s decision, the referee had to not only hear and decide the case, but also serve as a court reporter for the judge by reciting all the necessary facts and appropriate conclusions of law in the report. As the number of cases on the dockets increased, we recognized that the report-writing requirement actually slowed down the decision-making process without, in many cases, adding much to the value of the decision.
The leadership of the Association was instrumental in drafting and advocating for amendments to the rules of practice and procedure. Referees from all over the state and from different types of courts appeared before committees of the Judicial Conference and the state bar association, and met privately with judges and justices to promote the important function we performed. The amendments were finally adopted in 1995. Civil Rule 53 and Juv.R. 40 were substantially rewritten. Key changes were:
- The title “referee” was changed to “magistrate.” There would be less confusion and we were able to put away our whistles.
- In the absence of a specific requirement from a judge or by statute to prepare a detailed report, magistrates need only prepare a magistrate’s decision. If a party wants more detail, the party may request findings of fact and conclusions of law, before or after the magistrate’s decision is filed. This came to be known as the “short form” decision. If no objection is made, the decision can be adopted unless there is apparent error. No independent review by a judge is required unless there is an objection.
- Magistrates may enter orders that are effective without being approved by a judge and remain effective unless a stay is granted.
- The waiver rule was codified: the failure to file an objection waives any issue on appeal other than plain error.
- Magistrates, as judicial officers of courts of record, must conduct proceedings on the record.
- The authority of magistrates to hear civil jury trials with the consent of the parties is specifically stated in the rule.
- The power of magistrates to deal with contempt of court that occurs in their actual presence is specifically included in the rule, recognizing that the need to maintain order is just as necessary in proceedings before magistrates as those in front of judges.
By 1996, the Association’s name was changed to Ohio Association of Magistrates as the title “referee” was finally removed from the Traffic Rules. Towards the end of the 1990s, attention turned to how magistrates could better serve the judges with expanded authority in criminal matters. Once again, the members of the Association appeared before committees of the Judicial Conference and the state bar association, and met privately with judges and justices to develop the scope of the expanded authority in criminal matters.
In 2000, Crim.R. 19 was substantially amended to expand the authority of magistrates in criminal areas beyond arraignment and preliminary, non-dispositive matters to include the authority, in misdemeanor cases, to accept guilty and no contest pleas, hear non-jury contested cases with the consent of all parties if imprisonment is a possible penalty, recommend sentences, and issue temporary protection orders. The expanded authority was also consistent with the 1995 changes to confirm the general powers of magistrates to regulate proceedings as if by the court, including the power to issue an order of attachment and set bail in cases involving direct or indirect contempt. Crim.R. 19 was also changed to expand the number of proceedings in which a magistrate might issue a pretrial order by describing the order in more general terms rather than listing specific types of orders. As with the other magistrate rules, the orders are effective immediately and not subject to an automatic stay. Although criminal matters present special constitutional and procedural issues when a magistrate is involved in such matters, Crim.R. 19 was redesigned to track Civ.R. 53 and Juv.R. 40 in most ways.
In 2006, Civ.R. 53 was substantially reorganized to make it easier to follow the steps the magistrate, the judge and the litigants must take under the rule. The amendments made other significant changes:
- Magistrates have the authority to issue civil temporary protection orders, including orders to avoid bodily harm pursuant to law, but the orders had to be signed by a judge. Our authority in this area was extended in the 2012 amendments to permit magistrates to enter temporary protection orders without a judge’s signature.
- The limiting phrase “pretrial orders” was removed to accurately reflect the existing practices of courts. The authority of magistrates was not meant to be limited to only pretrial orders but to allow magistrates to enter any order necessary to regulate the proceedings.
- A request for findings of fact and conclusions of law should be directed to the magistrate rather than to the court.
- The “waiver rule” was expanded to make it clear that the waiver applies to the failure to object to a finding or legal conclusion in a decision, whether or not specifically designated as a finding of fact or conclusion of law.
- The trial court’s minimum obligation to review a magistrate’s decision does not extend to any “error of law”, but is limited to errors of law that are only evident on the face of the decision.
In 2008, Superintendence Rule 19 was amended to establish the first experience requirement for magistrates and mandating that to be appointed to the position a “magistrate shall have been engaged in the practice of law for at least four years and in good standing with the Supreme Court of Ohio at the time of appointment.” Civ.R. 53, Crim.R. 19, Juv.R. 40 and Traf.R. 14 were all later amended to incorporate the four-year requirement into the substantive rules of procedure.
In 2012, an entirely new rule, Civ.R. 65.1, was adopted by the Supreme Court to broaden the authority of magistrates to conduct protection order proceedings in all courts. Most significantly, a magistrate’s denial or granting of an ex parte protection order without judicial approval does not constitute a magistrate’s order or a magistrate’s decision under Civ.R. 53 and is not subject to the requirements of that rule. The rule was adopted to provide a set of rules uniquely applicable to civil protection order proceedings.
As the Second District Court of Appeals acknowledged, trial courts depend on the fact that “magistrates truly do the ‘heavy lifting.’” Quick v. Kwiatkowski (Aug. 3, 2001), 2nd Dist. App. No. 18620, 2001 WL 871406 Very few magistrates were permitted to wear robes in 1989. Today, there is a clear visual reminder of how far we have come in our service to Ohio judges because 75% of Ohio magistrates now wear robes in the courtroom.
With the creation of what is now known as the Ohio Association of Magistrates, we gained more respect from the Supreme Court and statewide judicial organizations, which culminated in the appointment of Mike Bernstein to the Board of Trustees of the Ohio Judicial College for a term that began in 1995. Thereafter, referees and then magistrates were appointed to serve on Supreme Court Task Forces and Commissions and committees at the Ohio Judicial Conference and state and national associations. We are very proud that this year Magistrate Mark Huberman became the Chair of the very important Commission on the Rules of Practice and Procedure.
The Association has become all that we had hoped it would be and more. We are proud of how far we have come and how much the Association has to offer its members, judges, and the justice system for all Ohioans.