2.18Judges and Referees in Juvenile Proceedings
MCL 712A.10, MCR 3.912, and MCR 3.913 set out requirements regarding when a judge must preside over juvenile proceedings and when an attorney referee or a nonattorney referee may be assigned to hear a matter and make recommended findings and conclusions.
Parties have the right to a judge at a hearing on the formal calendar. MCR 3.912(B). The “formal calendar” includes all delinquency proceedings other than a preliminary inquiry, a preliminary hearing, or proceedings on the consent calendar. MCR 3.903(A)(10).
Additionally, under MCR 3.912(A), a judge must conduct the following proceedings:
“(1) a jury trial;
(2) a waiver proceeding under MCR 3.950 [(traditional waiver proceeding)];
(3) the preliminary examination, trial, and sentencing in a designated case;
(4) a proceeding on the issuance, modification, or termination of a minor personal protection order.”
Whenever practicable, two or more matters within the Family Division’s jurisdiction pending in the same judicial circuit and involving members of the same family must be assigned to the judge who was assigned the first matter. MCL 600.1023.
A judge may be disqualified as provided in MCR 2.003. MCR 3.912(D).
B.Referees1
MCR 3.913(A)(1) states that “the court may assign a referee to conduct a preliminary inquiry or to preside at a hearing other than those specified in MCR 3.912(A) and to make recommended findings and conclusions.” See also MCL 712A.10(1).
In general, “only a person licensed to practice law in Michigan may serve as a referee at a delinquency proceeding other than a preliminary inquiry or preliminary hearing, if the juvenile is before the court under MCL 712A.2(a)(1) [(violations of law or ordinance)].” MCR 3.913(A)(2)(a); see also MCL 712A.10(2).
In a designated case, “[o]nly a referee licensed to practice law in Michigan may preside at a hearing to designate a case or to amend a petition to designate a case and to make recommended findings and conclusions.” MCR 3.913(A)(2)(c).
“Only a referee licensed to practice law in Michigan may preside at any . . . hearing [other than a preliminary hearing] for the enforcement of a minor personal protection order and make recommended findings and conclusions.” MCR 3.913(A)(2)(d).
In a delinquency case, a nonattorney referee may conduct only the preliminary inquiry or preliminary hearing. MCL 712A.10(2);2 MCR 3.913(A)(2)(a).
In a minor personal protection order enforcement proceeding, a nonattorney referee may conduct the preliminary hearing. MCR 3.913(A)(2)(d).
MCL 712A.10 sets out the scope of a referee’s authority. In re AMB, 248 Mich App 144, 216 (2001). MCL 712A.10(1) provides:
“Except as otherwise provided in [MCL 712A.10(2)3] and [MCL 712A.14, MCL 712A.14a, and MCL 712A.14b],[4] the judge may designate a probation officer or county agent to act as referee in taking the testimony of witnesses and hearing the statements of parties upon the hearing of petitions alleging that a child is within the provisions of [the Juvenile Code], if there is no objection by parties in interest. The probation officer or county agent designed to act as referee shall do all of the following:
“(a) Take and subscribe the oath of office provided by the constitution.
“(b) Administer oaths and examine witnesses.
“(c) If a case requires a hearing and the taking of testimony, make a written signed report to the judge containing a summary of the testimony taken and a recommendation for the court’s findings and disposition.”
“[A] hearing referee’s recommendations and proposed order [under MCL 712A.10(1)(c)] cannot be accepted without judicial examination[;] ‘[t]hey are a helpful time-saving crutch and no more[, and] [t]he responsibility for the ultimate decision and the exercise of judicial discretion in reaching it still rests squarely upon the trial judge’ and may not be delegated.” In re AMB, 248 Mich App at 217, quoting Campbell v Evans, 358 Mich 128, 131 (1959). “Consequently, when it is apparent that someone other than a judge made the substantive legal decision in a case [in which the referee’s authority extends only to making a recommendation and proposed order], the only appropriate appellate response is to reverse.” In re AMB, 248 Mich App at 217-218 (concluding that a referee acted outside his authority under MCL 712A.10 when he entered an order permitting the withdrawal of an infant’s life support).
When a juvenile is taken into custody without a court order under MCL 712A.14(1) for violating a law, ordinance, or PPO and is not released to his or her parent(s), guardian, or custodian, a referee may conduct a preliminary hearing and may sign an order authorizing the filing of a complaint. MCL 712A.14(2).
Similarly, when a child is taken into protective custody without a court order and is not released, a referee may enter an order for the placement of the child pending a preliminary hearing. MCL 712A.14a(2)-(3).
Additionally, a referee may issue a written ex parte order authorizing the Department of Human Services to immediately take a child into protective custody and place the child pending a preliminary hearing. MCL 712A.14b(1); MCR 3.913(A)(2)(b); MCR 3.963(B)(4).5
Referees are bound by the same standards of conduct as judges, including the Michigan Code of Judicial Conduct and the Michigan Rules of Professional Conduct. See MCR 9.201(B)(2); MCR 9.202.
Committee Tip
Some courts may routinely assign new cases to referees and require the filing of a written demand for a hearing before a judge. MCR 3.912(B) provides that “[t]he parties have the right to a judge at a hearing on the formal calendar[,]” and that “[a] party may demand that a judge rather than a referee preside at a nonjury trial by filing a written demand with the court[.]”