Ohio Juv. R. 40
To assist juvenile courts of record and pursuant to reference under Juv.R. 40(D)(1), magistrates are authorized, subject to the terms of the relevant reference, to do any of the following:
In performing the responsibilities described in Juv.R. 40(C)(1), magistrates are authorized, subject to the terms of the relevant reference, to regulate all proceedings as if by the court and to do everything necessary for the efficient performance of those responsibilities, including but not limited to, the following:
A court may, for one or more of the purposes described in Juv.R. 40(C)(1), refer a particular case or matter or a category of cases or matters to a magistrate by a specific or general order of reference or by rule.
A court may limit a reference by specifying or limiting the magistrate's powers, including but not limited to, directing the magistrate to determine only particular issues, directing the magistrate to perform particular responsibilities, directing the magistrate to receive and report evidence only, fixing the time and place for beginning and closing any hearings, or fixing the time for filing any magistrate's decision on the matter or matters referred.
Subject to the terms of the relevant reference, a magistrate may enter orders without judicial approval if necessary to regulate the proceedings and if not dispositive of a claim or defense of a party.
A magistrate's order shall be in writing, identified as a magistrate's order in the caption, signed by the magistrate, filed with the clerk, and served on all parties or their attorneys.
A magistrate's order includes any of the following:
Any party may file a motion with the court to set aside a magistrate's order. The motion shall state the moving party's reasons with particularity and shall be filed not later than ten days after the magistrate's order is filed. The pendency of a motion to set aside does not stay the effectiveness of the magistrate's order, though the magistrate or the court may by order stay the effectiveness of a magistrate's order.
Subject to the terms of the relevant reference, a magistrate shall prepare a magistrate's decision respecting any matter referred under Juv.R. 40(D)(1).
Subject to the terms of the relevant reference, a magistrate's decision may be general unless findings of fact and conclusions of law are timely requested by a party or otherwise required by law. A request for findings of fact and conclusions of law shall be made before the entry of a magistrate's decision or within seven days after the filing of a magistrate's decision. If a request for findings of fact and conclusions of law is timely made, the magistrate may require any or all of the parties to submit proposed findings of fact and conclusions of law.
A magistrate's decision shall be in writing, identified as a magistrate's decision in the caption, signed by the magistrate, filed with the clerk, and served on all parties or their attorneys no later than three days after the decision is filed. A magistrate's decision shall indicate conspicuously that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Juv.R. 40(D)(3)(b).
A party may file written objections to a magistrate's decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day period as permitted by Juv.R. 40(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. If a party makes a timely request for findings of fact and conclusions of law, the time for filing objections begins to run when the magistrate files a decision that includes findings of fact and conclusions of law.
An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection.
An objection to a factual finding, whether or not specifically designated as a finding of fact under Juv.R. 40(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.
Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).
A magistrate's decision is not effective unless adopted by the court.
Whether or not objections are timely filed, a court may adopt or reject a magistrate's decision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.
If no timely objections are filed, the court may adopt a magistrate's decision, unless it determines that there is an error of law or other defect evident on the face of the magistrate's decision.
If one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.
A court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment or interim order.
The court may enter a judgment either during the fourteen days permitted by Juv.R. 40(D)(3)(b)(i) for the filing of objections to a magistrate's decision or after the fourteen days have expired. If the court enters a judgment during the fourteen days permitted by Juv.R. 40(D)(3)(b)(i) for the filing of objections, the timely filing of objections to the magistrate's decision shall operate as an automatic stay of execution of the judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered.
The court may enter an interim order on the basis of a magistrate's decision without waiting for or ruling on timely objections by the parties where immediate relief is justified. The timely filing of objections does not stay the execution of an interim order, but an interim order shall not extend more than twenty-eight days from the date of entry, subject to extension by the court in increments of twenty-eight additional days for good cause shown.
For good cause shown, the court shall allow a reasonable extension of time for a party to file a motion to set aside a magistrate's order or file objections to a magistrate's decision. "Good cause" includes, but is not limited to, a failure by the clerk to timely serve the party seeking the extension with the magistrate's order or decision.
Disqualification of a magistrate for bias or other cause is within the discretion of the court and may be sought by motion filed with the court.
Except as otherwise provided by law, all proceedings before a magistrate shall be recorded in accordance with procedures established by the court.
Contempt sanctions under Juv.R. 40(C)(2)(f) may be imposed only by a written order that recites the facts and certifies that the magistrate saw or heard the conduct constituting contempt.
A contempt order shall be filed and copies provided forthwith by the clerk to the appropriate judge of the court and to the subject of the order.
The subject of a contempt order may by motion obtain immediate review by a judge. A judge or the magistrate entering the contempt order may set bail pending judicial review of the order.
Ohio. Juv. R. 40
Staff Note (July 1, 2001 Amendment)
Juvenile Rule 40 Magistrates
Juvenile Rule 40(C) Reference and powers
Divisions (C)(1)(a)(i), (ii), and (iii) were amended to reflect that certain proceedings involving serious youthful offenders shall not be referred to a magistrate, i.e., the hearing on a motion to determine if there is probable cause to prosecute the child as a serious youthful offender, and the adjudication itself, whether to a jury or not. These restrictions recognize the seriousness of the charges and their determination, and are consistent with the restrictions upon the use of magistrates within the Criminal Rules.
Substitute Senate Bill 179, effective January 1, 2002, created the new category of serious youthful offender. Juv.R. 2(KK) was added effective July 1, 2001, defining serious youthful offender as "a child eligible for sentencing as described in sections 2152.11 and 2152.13 of the Revised Code."
Staff Note (July 1, 2003 Amendment)
Juvenile Rule 40 Magistrates
Juvenile Rule 40(E) Decisions in referred matters
The amendment to this rule is identical to an amendment to Civ.R. 53(E), also effective July 1, 2003.
It was suggested to the Rules Advisory Committee that the waiver rule prescribed by sentence four of former Civ.R. 53(E)(3)(b) [identical to sentence four of former Juv.R. 40(E)(3)(b)] sometimes surprised counsel and pro se litigants because they did not expect to be required to object to a finding of fact or conclusion of law in a magistrate's decision in order to assign its adoption by the trial court as error on appeal. A review of relevant appellate decisions seemed to confirm that suggestion.
It was further suggested that counsel or a pro se litigant was particularly likely to be surprised by the waiver rule of sentence four of former Civ.R. 53(E)(3)(b) if a trial court, as authorized by sentence two of Civ.R. 53(E)(4)(a), adopted a magistrate's decision prior to expiration of the fourteen days permitted for the filing of objections. See, e.g., Riolo v. Navin, 2002 WL 502408, 2002 -Ohio-1551, (8th Dist. Ct. App., 4-19-2002).
Since 1995, the potential for surprise posed by the waiver rule may have been exacerbated by the fact that, under the original versions of Juv.R. 40 and Civ.R. 53, a party did not, by failing to file an objection, waive the right to assign as error on appeal the adoption by the trial court of a finding or fact or conclusion of law of a referee. See 30 Ohio St. 3d xlii-xliii (1972) (original version of Juv.R. 40); Normandy Place Associates v. Beyer, 2 Ohio St.3d 102, 103 (1982) (syl. 1)(noting absence of waiver rule in original version of Civ.R. 53). As of July 1, 1985, sentence one of Juv.R. 40(E)(6) and sentence one of Civ.R. 53(E)(6) were amended to read "[a] party may not assign as error the court's adoption of a referee's finding of fact unless an objection to that finding is contained in that party's written objections to the referee's report" (emphasis added). See 18 Ohio St.2d xxxv (1985)(Juv.R. 40(E)(6)); State ex rel. Donah v. Windham Exempted Village Sch Dist. Bd. of Ed., 69 Ohio St.3d 114, 118 (1994) (confirming that the waiver rule of sentence one of the 1985 version of Civ.R. 53 applied only to findings of fact by referee). The wording of the waiver rule of sentence one of Juv.R. 40(E)(6) was modified slightly effective July 1, 1992. See 64 Ohio St.3d cxlv (1992); In re McClure, 1995 WL 423391, No. 7-95-2 (3d Dist. Ct. App., 7-19-95) (applying 1992 version of the waiver rule of sentence one of Juv.R. 40(E)(6)). The present waiver rule, which applies to both findings of fact and conclusions of law, took effect July 1, 1995, and represents a complete reversal of the position of the original Juv.R. 40. See State ex rel. Booher v. Honda of America Mfg., Inc., 88 Ohio St. 3d 52 (2000) (confirming that the waiver rule of sentence four of Civ.R. 53(E)(3)(b), which is identical to the waiver rule of sentence four of Juv.R. 40(E)(3)(b), now applies to conclusions of law as well as to findings of fact by a magistrate).
The amendment thus makes three changes in Juv.R. 40(E), none of which are intended to modify the substantive scope or effect of the waiver rule contained in sentence four of former Juv.R. 40(E)(3)(b) [now division (E)(3)(d)]. First, the amendment retains, but breaks into three appropriately-titled subdivisions, the four sentences which comprised former Juv.R. 40(E)(3)(b). Sentences two and three of former Juv.R. 40(E)(3)(b) are included in a new subdivision (c) entitled "Objections to magistrate's findings of fact." Sentence four of former Juv.R. 40(E)(3)(b), which prescribes the waiver rule, is a new subdivision (d) entitled "Waiver of right to assign adoption by court as error on appeal."
Second, new language is inserted at the beginning of Juv.R. 40(E)(3)(a) to make it more evident that a party may properly file timely objections to a magistrate's decision even if the trial court has previously adopted that decision as permitted by Juv.R. 40(E)(4)(c).
Third, the amendment adds a new sentence to Juv.R. 40(E)(2), which sentence requires that a magistrate who files a decision which includes findings of fact and conclusions of law also provide a conspicuous warning that timely and specific objection as required by Juv.R. 40(E)(3) is necessary to assign as error on appeal adoption by the trial court of any finding of fact or conclusion of law. It is ordinarily assumed that rule language which prescribes a procedural requirement (see, e.g., sentence six of Civ.R. 51(A), which is analogous to the waiver rule of sentence four of Juv.R. 40(E)(3)) constitutes sufficient notice to counsel and to pro se litigants of that requirement. The Committee nonetheless concluded that the additional provision requiring that a magistrate's decision that includes findings of fact and conclusions of law call attention of counsel and pro se litigants to the waiver rule is justified because, as noted above, the original version of Juv.R. 40 imposed no waiver at all and even the 1985 and 1992 versions imposed waiver only as to findings of fact by referees.
Staff Note (July 1, 2006 Amendment)
Rule 40 has been reorganized in an effort to make it more helpful to bench and bar and reflective of developments since the rule was last substantially revised effective July 1, 1995. The relatively-few significant changes included in the reorganization are noted below.
Rule 40(A) Appointment
Juv.R. 40(A) is similar to former Juv.R. 40(A), except that it now requires all magistrates appointed pursuant to the rule to be attorneys admitted to practice in Ohio. The former rule allowed magistrates first appointed prior to July 1, 1995 to be nonattorneys.
Rule 40(B) Compensation
Juv.R. 40(B) is the same as former Juv.R. 40(B).
Rule 40(C) Authority
Juv.R. 40(C) is drawn largely from former Juv.R. 40(C)(1) and (2) and reflects the admonition of the Supreme Court that "a [magistrate's] oversight of an issue or issues, or even an entire trial, is not a substitute for the judicial functions but only an aid to them." Hartt v. Munobe (1993), 67 Ohio St.3d 3, 6, 1993-Ohio-177, 615 N.E.2d 617 (emphases added). Juv.R. 40(C) specifies that juvenile court magistrates may determine motions and conduct trials but may not preside over the determination or trial of a serious youthful offender.
Rule 40(D) Proceedings in Matters Referred to Magistrates
Juv.R. 40(D)(1) through (4) treat each of the steps that potentially occur if a magistrate participates: (1) reference to a magistrate; (2) magistrate's orders and motions to set aside magistrate's orders; (3) magistrate's decisions and objections to magistrate's decisions; and (4) action of the court on magistrate's decisions and on any objections to magistrate's decisions and entry of judgment or interim order by the court. Juv.R. 40(D)(5) through (8) deal with good cause extensions of time, disqualification of a magistrate, recording of proceedings before a magistrate, and contempt in the presence of a magistrate.
Reference by court of record
Juv.R. 40(D)(1), unlike former Juv.R. 40(C)(1)(b), specifically authorizes reference of types of matters by rule as well as by a specific or general order of reference. In so doing, it recognizes existing practice in some courts. See, e.g., Loc. R. 99.02, Franklin Cty. Ct. of Common Pleas; Loc. R. 23(B), Hamilton Cty. Ct. of Common Pleas; State ex rel. Nalls v. Russo, 96 Ohio St.3d 410, 412-13, 2002-Ohio-4907 at ¶¶ 20-24, 775 N.E.2d 522; Davis v. Reed (Aug. 31, 2000), 8th Dist. App. No. 76712, 2000 WL 1231462 at *2 (citing White v. White (1977), 50 Ohio App.2d 263, 266-268, 362 N.E.2d 1013), and Partridge v. Partridge (Aug. 27, 1999), 2nd Dist. App. No. 98 CA 38, 1999 WL 945046 at *2, (treating a local rule of the Greene Cty. Ct. of Common Pleas, Dom. Rel. Div., as a standing order of reference).
Magistrate's order; motion to set aside magistrate's order
Juv.R. 40(D)(2)(a)(i) generally authorizes a magistrate to enter orders without judicial approval if necessary to regulate the proceedings and, adapting language from Crim.R. 19(B)(5)(a), if "not dispositive of a claim or defense of a party." The new language removes the arguably limiting title of former Juv.R. 40(C)(3)(a) ["Pretrial orders"] and is intended to more accurately reflect proper and existing practice. This language is not intended to narrow the power of a magistrate to enter orders without judicial approval. Juv.R. 40(D)(2)(a) lists certain actions that are included as magistrate orders. These are similar to those listed in former Juv.R. 40(C)(3), with the addition of division (D)(2)(a)(iii)(M) regarding the issuance of a temporary protection order. However, consistent with the admonition in Hartt, supra, any temporary protection order issued as a result of such proceedings must be signed by a judge.
Juv.R. 40(D)(2)(b) replaces language in former Juv.R. 40(C)(3)(b), which purported to authorize "[a]ny person" to "appeal to the court" from any order of a magistrate "by filing a motion to set the order aside." The new language refers to the appropriate challenge to a magistrate's order as solely a "motion to set aside" the order. Juv.R. 40(D)(2)(b) likewise limits the authorization to file a motion to "any party," though an occasional nonparty may be entitled to file a motion to set aside a magistrate's order. Sentence two of Juv.R. 40(D)(2)(b) changes the trigger for the ten days permitted to file a motion to set aside a magistrate's order from entry of the order to filing of the order, as the latter date is definite and more easily available to counsel. Juv.R. 40(D)(2)(b) retains the provision of former Juv.R. 40(C)(3)(b) that the pendency of a motion to set aside a magistrate's order does not stay the effectiveness of the magistrate's order, although the magistrate or the court, by order, may stay the magistrate's order.
Magistrate's decision; objections to magistrate's decision
Juv.R. 40(D)(3) prescribes procedures for preparation of a magistrate's decision and for any objections to a magistrate's decision.
Juv.R. 40(D)(3)(a)(ii), unlike former Juv.R. 40(E)(2), adapts language from Civ.R. 52 rather than simply referring to Civ.R. 52. The change is intended to make clear that, e.g., a request for findings of fact and conclusions of law in a referred matter should be directed to the magistrate rather than to the court. Juv.R. 40(D)(3)(a)(ii) explicitly authorizes a magistrate's decision, subject to the terms of the relevant reference, to be general absent a timely request for findings of fact and conclusions of law or a provision of law that provides otherwise. Occasional decisions under former Juv.R. 40 said as much. See, e.g., In re Chapman (Apr. 21, 1997), 12th Dist. App. No. CA96-07-127, 1997 WL 194879 at *2; Burke v. Brown, 4th Dist. App. No. 01CA731, 2002-Ohio-6164 at ¶ 21; and Rush v. Schlagetter (Apr. 15, 1997), 4th Dist. App. No. 96CA2215, 1997 WL 193169 at *3. For a table of sections of the Ohio Revised Code that purport to make findings of fact by judicial officers mandatory in specified circumstances, see 2 Klein-Darling, Ohio Civil Practice § 52-4, 2002 Pocket Part at 136 (West Group 1997).
Juv.R. 40(D)(3)(a)(iii) now requires that the magistrate's decision be served on the parties or their attorneys no later than three days after the decision was filed. The former rule contained no specific time requirement. The provision further requires that a magistrate's decision include a conspicuous warning of the waiver rule prescribed by amended Juv.R. 40(D)(3)(b)(iv). The latter rule now provides that a party shall not assign as error on appeal a court's adoption of any factual finding or legal conclusion of a magistrate, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless that party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b). While the prior waiver rule, prescribed by former Juv.R. 40(E)(3)(b) (effective July 1, 1995) and former Juv.R. 40(E)(3)(d) (effective July 1, 2003), arguably applied only to findings of fact or conclusions of law specifically designated as such, the amended waiver rule applies to any factual finding or legal conclusion in a magistrate's decision and the required warning is broadened accordingly.
Juv.R. 40(D)(3)(b)(i) retains the fourteen-day time for filing written objections to a magistrate's decision. While the rule continues to authorize filing of objections by a "party," it has been held that a non-party attorney can properly object to a magistrate's decision imposing sanctions on the attorney. All Climate Heating & Cooling, Inc. v. Zee Properties, Inc. (May 17, 2001), 10th Dist. App. No. 00AP-1141, 2001 WL 521408 at *3.
Sentence one of Juv.R. 40(D)(3)(b)(iii) requires that an objection to a factual finding in a magistrate's decision, whether or not specifically designated as a finding of fact under Juv.R. 40(D)(3)(a)(ii), be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or by an affidavit of that evidence if a transcript is not available. The Supreme Court has prescribed the consequences on appeal of failure to supply the requisite transcript or affidavit as follows: (1) "appellate review of the court's findings is limited to whether the trial court abused its discretion in adopting the [magistrate's decision]" and (2) "the appellate court is precluded from considering the transcript of the hearing submitted with the appellate record." State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d 1254.
Sentence two of Juv.R. 40(D)(3)(b)(iii) adds a new requirement, adapted from Loc. R. 99.05, Franklin Cty. Ct. of Common Pleas, that the requisite transcript or affidavit be filed within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. The last sentence of Juv.R. 40(D)(3)(b)(iii) allows an objecting party to seek leave of court to supplement previously filed objections where the additional objections become apparent after a transcript has been prepared.
Juv.R. 40(D)(3)(b)(iv), as noted above, expands the "waiver rule" prescribed by former Juv.R. 40(E)(3)(b) (effective July 1, 1995) and former Juv.R. 40(E)(3)(d) (effective July 1, 2003) to include any factual finding or legal conclusion in a magistrate's decision, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii). The Rules Advisory Committee was unable to discern a principled reason to apply different requirements to, e.g., a factual finding depending on whether or not that finding is specifically designated as a finding of fact under Juv.R. 40(D)(3)(a)(ii). An exception to the "waiver rule" exists for plain error, which cannot be waived based on a party's failure to object to a magistrate's decision.
Action of court on magistrate's decision and on any objections to magistrate's decision; entry of judgment or interim order by the court
Juv.R. 40(D)(4)(a), like sentence one of former Juv.R. 40(E)(4)(a), confirms that a magistrate's decision is not effective unless adopted by the court.
Juv.R. 40(D)(4)(b) provides that a court may properly choose among a wide range of options in response to a magistrate's decision, whether or not objections are timely filed. See, e.g., Johnson v. Brown 2nd Dist. App. No. 2002 CA 76, 2003 -Ohio-1257 at ¶ 12 (apparently concluding that former Civ.R. 53(E)(4)(b) permitted the trial court to modify an aspect of the magistrate's decision to which no objection had been made).
Juv.R. 40(D)(4)(c) provides that if no timely objections are filed, the court may adopt a magistrate's decision, unless the court determines that there is an error of law or other defect evident on the face of the decision. A similar result was reached under sentence two of former Civ.R. 53(E)(4)(a). See, e.g., Perrine v. Perrine, 9th Dist. App. No. 20923, 2002-Ohio-4351 at ¶ 9; City of Ravenna Police Dept. v. Sicuro (Apr. 30, 2002), 11th Dist. App. No. 2001-P-0037; and In re Weingart (Jan. 17, 2002), 8th Dist. App. No. 79489, 2002 WL 68204 at *4. The language of Juv.R. 40(D)(4)(c) has been modified in an attempt to make clear that the obligation of the court does not extend to any "error of law" whatever but is limited to errors of law that are evident on the face of the decision. To the extent that decisions such as In re Kelley, 11th Dist. App. No. 2002-A-0088, 2003-Ohio-194 at ¶ 8 suggest otherwise, they are rejected. The "evident on the face" standard does not require that the court conduct an independent analysis of the magistrate's decision. The amended rule does not speak to the effect, if any, on the waiver rule prescribed by amended Juv.R. 40(D)(3)(b)(iv) of the "evident on the face" requirement. At least two courts have explicitly held that the "evident on the face" standard generates an exception to the waiver rule. Dean-Kitts v. Dean, 2nd Dist. App. No. 2002CA18, 2002-Ohio-5590 at ¶ 13 and Hennessy v. Hennessy (Mar. 24, 2000), 6th Dist. App. No. L-99-1170, 2000 WL 299450 at *1. Other decisions have indicated that the standard may generate an exception to the waiver rule. Ohlin v. Ohlin (Nov. 12, 1999), 11th Dist. App. No. 98-PA-87, 1999 WL 1580977 at *2; Group One Realty, Inc. v. Dixie Intl. Co. (1998), 125 Ohio App.3d 767, 769, 709 N.E.2d 589; In re Williams (Feb. 25, 1997), 10th Dist. App. No. 96APF06-778, 1997 WL 84659 at *1. However, the Supreme Court applied the waiver rule three times without so much as referring to the "evident on the face" standard as a possible exception. State ex rel. Wilson v. Industrial Comm'n. (2003), 100 Ohio St. 3d 23, 24, 2003-Ohio-4832 at ¶ 4, 795 N.E.2d 662; State ex rel. Abate v. Industrial Comm'n. (2002), 96 Ohio St.3d 343, 2002-Ohio-4796, 774 N.E.2d 1212; State ex rel. Booher v. Honda of America Mfg. Co., Inc. (2000), 88 Ohio St.3d 52, 2000-Ohio-269, 723 N.E.2d 571.
As noted above, even if no timely objection is made, a court may, pursuant to Juv.R. 40(D)(4)(b), properly choose a course of action other than adopting a magistrate's decision, even if there is no error of law or other defect evident on the face of the magistrate's decision.
Sentence one of Juv.R. 40(D)(4)(d), like sentence one of former Juv.R. 40(E)(4)(b), requires that the court rule on timely objections. Sentence two of Juv.R. 40(D)(4)(d) requires that, if timely objection is made to a magistrate's decision, the court give greater scrutiny than if no objections are made. The "independent review as to the objected matters" standard that applies if timely objection is made should be distinguished from the lesser scrutiny permitted if no objections to a magistrate's decision are timely filed, the latter standard having been first adopted by former Juv.R. 40(E)(4)(a), effective July 1, 1995, and retained by new Juv.R. 40(D)(4)(c), discussed above.
The "independent review as to the objected matters" standard is intended to exclude the more limited appellate standards of review and codify the practice approved by most courts of appeals. The Second District Court of Appeals has most clearly and consistently endorsed and explained that standard. See, e.g., Crosby v. McWilliam, 2nd Dist. App. No. 19856, 2003-Ohio-6063; Quick v. Kwiatkowski (Aug. 3, 2001), 2nd Dist. App. No. 18620, 2001 WL 871406 (acknowledging that "Magistrates truly do the 'heavy lifting' on which we all depend"); Knauer v. Keener (2001), 143 Ohio App.3d 789, 758 N.E.2d 1234. Other district courts of appeal have followed suit. Reese v. Reese, 3rd Dist. App. No. 14-03-42, 2004-Ohio-1395; Palenshus v. Smile Dental Group, Inc., 3rd Dist. App. No. 3-02-46, 2003-Ohio-3095,; Huffer v. Chafin, 5th Dist. App. No. 01 CA 74, 2002 -Ohio-356; Rhoads v. Arthur (June 30, 1999), 5th Dist. App. No. 98CAF10050, 1999 WL 547574; Barker v. Barker (May 4, 2001), 6th Dist. App. No. L-00-1346, 2001 WL 477267; In re Day, 7th Dist. App. No. 01 BA 28, 2003 -Ohio-1215; State ex rel. Ricart Auto. Personnel, Inc. v. Industrial Comm'n. of Ohio, 10th Dist. App. No. 03AP-246, 2003-Ohio-7030; Holland v. Holland (Jan. 20, 1998), 10th Dist. App. No. 97APF08-974, 1998 WL 30179; In re Gibbs (Mar. 13, 1998), 11th Dist. App. No. 97-L-067, 1998 WL 257317.
Only one court of appeals appears consistently and knowingly to have taken a different approach. Lowery v. Keystone Bd. of Ed. (May 9, 2001), 9th Dist. App. No. 99CA007407, 2001 WL 490017; Weber v. Weber (June 30, 1999), 9th Dist. App. No. 2846-M, 1999 WL 459359; Meadows v. Meadows (Feb. 11, 1998), 9th Dist. App. No. 18382, 1998 WL 78686; Rogers v. Rogers (Dec. 17, 1997), 9th Dist. App. No. 18280, 1997 WL 795820.
The Rules Advisory Committee believes that the view adopted by the majority of courts of appeals is correct and that no change was made by the 1995 amendments to Juv.R. 40 in the review required of a trial judge upon the filing of timely objections to a magistrate's report.
The phrase "as to the objected matters" permits a court to choose to limit its independent review to those matters raised by proper objections. If a court need apply only the "defect evident on the face" standard if no objections are filed at all, then, if one or more objections are filed, a court logically need apply the more stringent independent review only to those aspects of the magistrate's decision that are challenged by that objection or those objections.
Sentence three of Juv.R. 40(D)(4)(d) provides that, before ruling on objections, a court may hear additional evidence and that it may refuse to hear additional evidence unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.
Juv.R. 40(D)(4)(e) is similar to former Juv.R. 40(D)(4)(c) and requires that a court that adopts, rejects, or modifies a magistrate's decision also enter a judgment or interim order. Juv.R. 40(D)(4)(e)(i) permits the court to enter a judgment during the fourteen days permitted for the filing of objections to a magistrate's decision but provides that the timely filing of objections operates as an automatic stay of execution of the judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered. Juv.R. 40(D)(4)(e)(ii) permits the court, if immediate relief is justified, to enter an interim order during the fourteen days permitted for the filing of objections to a magistrate's decision. The timely filing of objections does not stay such an interim order, but the order may not properly extend more than twenty-eight days from the date of entry, subject to extension by the court in increments of twenty-eight additional days for good cause shown. Juv.R. 40(D)(4)(e)(ii) allows multiple twenty-eight day extensions, whereas the former Juv.R. 40(D)(4)(c) allowed only one such extension.
Extension of time
Juv.R. 40(D)(5) is new and requires the court, for good cause shown, to provide an objecting party with a reasonable extension of time to file a motion to set aside a magistrate's order or file objections to a magistrate's decision. "Good cause" would include the failure of a party to receive timely service of the magistrate's order or decision.
Disqualification of a magistrate
Juv.R. 40(D)(6) has no counterpart in former Juv.R. 40. The statutory procedures for affidavits of disqualification apply to judges rather than magistrates. Rev. Code §§ 2101.39, 2501.13, 2701.03, 2701.131; In re Disqualification of Light (1988), 36 Ohio St.3d 604, 522 N.E.2d 458. The new provision is based on the observation of the Chief Justice of the Supreme Court that "[t]he removal of a magistrate is within the discretion of the judge who referred the matter to the magistrate and should be brought by a motion filed with the trial court." In re Disqualification of Wilson (1996), 77 Ohio St. 3d 1250, 1251, 674 N.E.2d 260; see also Mascorro v. Mascorro (June 9, 2000), 2nd Dist. App. No. 17945, 2000 WL 731751 at *3 (citing In re Disqualification of Wilson); Reece v. Reece (June 22, 1994), 2nd Dist. App. No. 93-CA-45, 1994 WL 286282 at *2 ("Appointment of a referee is no different from any other process in which the trial court exercises discretion it is granted by statute or rule. * * * If the defect concerns possible bias or prejudice on the part of the referee, that may be brought to the attention of the court by motion."); Moton v. Ford Motor Credit Co., 5th Dist. App. No. 01CA74, 2002-Ohio-2857, appeal not allowed (2002), 95 Ohio St.3d 1422, 2002-Ohio-1734, 766 N.E.2d 163, reconsideration denied (2002), 95 Ohio St.3d 1476, 2002-Ohio-244, 768 N.E.2d 1183; Walser v. Dominion Homes, Inc. (June 11, 2001), 5th Dist. App. No. 00-CA-G-11-035, 2001 WL 704408 at *5; Unger v. Unger (Dec. 29, 2000), 12th Dist. App. No. CA2000-04-009, 2000 WL 1902196 at *2 (citing In re Disqualification of Wilson, supra); Jordan v. Jordan (Nov. 15, 1996), 4th Dist. App. No. 1427, 1990 WL 178162 at *5 ("Although referees are not judges and arguably, are not bound by Canon 3(C)(1) of the Code of Judicial Conduct, it would appear axiomatic that a party should be able to petition the court to have a referee removed from the case if the referee is unable to render a fair and impartial decision."); In re Reiner (1991), 74 Ohio App.3d 213, 220, 598 N.E.2d 768 ("where a referee affirmatively states that he is biased on the matter before him, it is an abuse of the court's discretion to fail to recuse the referee"). Particularly because "a [magistrate's] oversight of an issue or issues, or even an entire trial, is not a substitute for the judicial functions but only an aid to them," Hartt v. Munobe (1993), 67 Ohio St.3d 3, 6, 1993-Ohio-177, 615 N.E.2d 617 (emphases added), Juv.R. 40(D)(6) contemplates that disqualification on a ground other than bias may sometimes be appropriate.
Recording of proceedings before a magistrate
Juv.R. 40(D)(7), generally requiring recording of proceedings before a magistrate, is taken verbatim from former Juv.R. 40(D)(2).
Contempt in the presence of a magistrate
Juv.R. 40(D)(8) is adapted from sentences two, three, and four of former Juv.R. 40(C)(3)(c). Juv.R. 40(D)(8)(b), unlike its predecessor, explicitly requires that the clerk provide a copy of a contempt order to the subject of the order.
Staff Note (July 1, 2014 Amendment)
The amendment to Juv.R. 40(C) eliminates any perceived authority for a magistrate to preside over a jury trial in juvenile court. The amendment resulted from the Commission's review and revision of the procedures under which magistrates conduct civil jury trials under Civ.R. 53 which largely parallels Juv.R. 40. That review concluded that jury trials in juvenile court are extremely rare and occur only in cases of "serious youthful offenders" and of adult defendants charged with child endangering and/or contributing to the delinquency of minors. Since the rule as previously written excluded magistrates from conducting jury trials for "serious youthful offenders", and since all trials of adult offenders are governed by the Ohio Rules of Criminal Procedure, which expressly exclude magistrates from hearing jury trials under Crim.R. 19(C)(1)(h), the Commission decided to simply eliminate the provision for jury trials under Juv.R. 40.