What is a Court Referee?
A court referee is an individual who is appointed by a judge to perform certain functions during a court proceeding. While a court referee may be a member of the bar, he or she is not necessarily a sitting judge. Typically, a court referee presides over family law cases involving divorce, legal separation, custody and visitation, spousal support, child support, domestic violence, and adoption issues. In California State Courts, a Family Law Court Referee will often work in conjunction with a superior court judge to assist with hearings and reviews pertaining to family law matters. For instance, a judge may refer matters to a court referee for a horizontal calendar review, which entails an informal examination of the evidence – as opposed to a formal evidentiary hearing – in order to get the ball rolling in what sometimes are long and complicated disputes . A judge may also appoint a court referee to adjudicate short cause matters when a case is too complex to be handled in chamber conferences, but too simple to require a long evidentiary hearing. Finally, the judge may assign the court referee to review a spousal or child support case for purposes of updating child support awards and then report their findings back to the Superior Court Judge. As a reminder, a Family Court Services counselor appointment includes a recommendation only and is not binding upon the parties or the court. However, since the Court Referee is operating on behalf of the Superior Court Judge, the decision of the judge is binding and can only be modified during a formal evidentiary hearing.
When are Court Referees Utilized?
As a general rule, the use of court referees is limited to those matters where the parties stipulate to the same or a judge orders their use at the "request" of a party. See, e.g., CLUP v. LNR Property Corp., 46 AD3d 916, 849 NYS2d 165 (2d Dept. 2007); Duyos v. Galella, 29 AD3d 370, 814 NYS2d 275 (2006). A court referee may be appointed in almost any type of case, including matrimonial actions, guardianship proceedings and civil disputes. See, e.g., Rine v. Rine, 303 AD2d 723, 756 NYS2d 791 (3d Dept. 2003); Matter of Republicans Candidates to Fill a Vacancy in the Office of Mayor of City of New York, 293 AD2d 84, 734 NYS2d 479 (1st Dept. 2002); Palumbo v. Kennedy, 242 AD2d 935, 663 NYS2d 944 (4th Dept. 1997).
Duties and Authority of a Court Referee
The responsibilities and powers of a court referee are determined largely by the scope of the order appointing the referee. At a minimum, a referee must be empowered to conduct hearings, make findings of fact, and recommend conclusions of law and a judgment or final order to the referring judicial officer. Depending on the order appointing the referee, the referee is also generally empowered by statute to administer oaths and affirmations; examine witnesses; compel, by subpoena or otherwise, the attendance of witnesses and the production of written materials; take and cause to be taken depositions; rule upon objections, receive evidence, and take other action as may be required regarding procedure; report to the referring justice; and file records of the proceeding with the court.
A referee has the power to make factual determinations, but may lack authority to apply the law to those facts. In a 2021 decision, the Appellate Division, Second Department, reiterated that a referee is not prevented from exercising his or her own judgment as to the credibility of a witness, but (unlike a judicial officer) lacks the power "to review documents outside the record or issue subpoenas" (Matter of Toure v Brunner, 196 AD3d 747, 750 [2d Dept 2021] [internal quotation marks omitted]). The referee’s "discretion is strictly confined within the four corners of the scope of the reference" (id. at 751; see also Matter of Alvarez v Rodriguez, 87 AD3d 965, 967 [2d Dept 2011]). Although referees are now often appointed to resolve issues in high-stakes cases involving lengthy hearings, it is important to note that these judicial officers are not equivalent to judges.
Advantages of a Court Referee
The use of a court referee can be a useful tool that can greatly benefit the court system, as well as the litigants in a case. Often, even the most basic cases are adjudicated more quickly and efficiently when a referee is appointed to narrow down the issues and refine the legal and factual arguments. As many judges will note, having the referee preside over all or a substantial portion of the pre-trial phase of the litigation generally leads to a more efficient trial. This is because, after spending considerable time with the parties, the judge receives a detailed report and recommendation from the referee that can range from a boilerplate statement regurgitating the legal principles applied, to one which analyzes and applies the facts to the law as it relates to the issues at hand. In specific cases, this allows for the judge to make a ruling on certain substantive issues without delay, or to tailor the specific portions of the order and/or final judgment prior to trial based upon the referee’s recommendations.
Although the referee intimately knows the issues and facts of the case after spending a significant amount of time with them, the referee is not a final decision maker, and is bound by the substantive and/or procedural laws. In effect, this serves as a safeguard for the parties, as the judge can always review the referee’s findings and decision based upon such legal principles. For that reason, it is not unusual for the reference court to approve the appointment of a referee when the parties have entered an agreement as to the substantive issues to be referred. For example, the parties may agree that the referee is being appointed to solely consider a valium clause/limitation of liability as part of an agreement to mediate their dispute instead of litigate it. However, the parties must be cautious with the outcome of having a referee involved in a case, since that referee will essentially act as a third party fact finder which could lead to a range of cost benefits.
The benefit realized by the parties can be substantial. As one court noted, "[a] court referee is a judicial officer of the court, whose report, covering the essential issues of fact and law, ‘may serve as the basis for the court’s ultimate determination of the matter which gave rise to the reference.’" Buckland v. Lincoln, 35 A.D.2d 882, 318 N.Y.S.2d 313 (2d Dep’t 1971). The report prepared by a referee is invaluable in terms of assisting the court and the litigants in terms of expediting a case.
Criticism and Challenges
Despite their benefits, court referees are not without controversy. Critics argue that the process of appointing a referee can be arbitrary and may lead to favoritism, as judges may appoint referees based on personal relationships or a lack of thoroughness in hiring practices. This could potentially undermine the objectivity and neutrality of the judicial system. Others point out that a referee’s recommendations, while advisory in nature, hold significant weight-an issue that may be particularly problematic when the referee is not well-versed in the legal issues at hand. An additional concern is that the process of appointing a referee can become a "pay-to-play" scenario , where wealthier individuals can afford experienced referees, thus creating a possible imbalance in the legal playing field.
Another challenge often associated with the use of referees is the potential for a lack of accessibility to the process, particularly for those unfamiliar with legal jargon or lacking legal representation. While referees should be knowledgeable facilitators, a litigant may still find it difficult to understand the referee’s role, leading them to misperceive the situation. Finally, concerns exist that referees can exercise too much authority, particularly during the hearings themselves and in their power to impose penalties and dismiss claims.
How to Become a Court Referee
While the judges appoint court referees, you typically have to apply for the position and be interviewed by one or more judges before being appointed. Judges often have a say in "who" is appointed. The governor has the authority over appointing court referees – most of whom are former judges or attorneys that have reach the "mandatory retirement age" of 70.
In order to qualify, a court referee should be an attorney with appropriate experience. While the rules governing practice by out-of-state attorneys allow some leeway, such attorneys must be admitted and in good standing in their own state (or territory or D.C.) and be eligible for admission in New York. The latter requirement generally means that they are a member of the bar of another state or territory or of the D.C. bar for at least five years and are employed in New York State as in-house counsel to an entity. The attorney must also have been granted permission by an Appellate Division in New York to practice in this state, pro hac vice, in a limited capacity.
In practice, most court referees have been attorneys admitted to the practice of law in New York, although some are not. Applicants will be considered based on their experience and background and the needs of the court. A preference is usually given to attorneys have been members of the bar for at least 10 years. It is not enough to have been an attorney for a period time – a litigation background is usually preferable. Some referees have been appointed from among retired judges.
Court Referees vs Judges
Court referees are often referred to as "judicial hearing officers." This term can be slightly deceptive. Although court referees have some of the powers of judges, most people would not consider court referees to be judges in the same capacity as family court judges or appellate judges.
The salaries of court referees and judges do not match. A New York State trial level judge will earn a salary of $174,000 per year. Court referees earn up to $72,700 per year. The employment of judges is a position that is filled by election. The appointment of a court referee is determined by the Chief Administrative Judge of the Courts of the State of New York.
Court referees generally sit in matrimonial cases and special proceedings in various counties. They do so while under the supervision of the appointed Justice of the court. Their purpose is to conduct conferences, hearings, trials, investigations, studies, reports and other proceedings as directed by the court, and they can preside over attorney disciplinary cases, child abuse proceedings, juvenile delinquency, child abuse and neglect, and other matters .
Judges on the other hand, do not have the equivalent of this scope or type of work. For example, judges are routinely assigned to handle everything from spousal support motions to divorce trials to custody and child support litigation. Judges rarely handle their own conferences or hearings to see if a case can get settled or if a trial is necessary.
There is also some question regarding the appealability of orders issued by court referees. Rule 22 NYCRR 202.43(d), for example, provides that referees may issue "report[s] containing only findings of fact and conclusions of law," and "upon the filing of any such report, and all exceptions or objections therein, the action shall stand in the same manner as though the report had not been made, and any party shall be entitled to a trial de novo." In contrast, orders or judgments issued by trial-level judges on the bench are appealable to appellate courts as judgments that can be considered final determinations.