Staff Note (July 1, 2006 Amendment)

Civ. R. 53 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 53(A) Appointment

Civ. R. 53(A) is taken verbatim from sentence one of former Civ. R. 53(A). Sup. R. 19 requires that all municipal courts having more than two judges appoint one or more magistrates to hear specified matters. See also Crim. R. 19 and Traf. R. 14.

Rule 53(B) Compensation

Civ. R. 53(B) refers to Civ. R. 54(D) so as to more clearly harmonize Civ. R. 53 with statutory provisions that authorize courts to collect funds from litigants generally and to use the collected funds for purposes that include employment of magistrates. See, e.g., R.C. 1901.26(B)(1), 1907.24(B)(1), 2303.201(E)(1), and 2501.16(B).

Rule 53(C) Authority

Civ. R. 53(C) is drawn largely from former Civ. R. 53(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, 615 N.E.2d 617 (emphases added). Civ. R. 53(C)(1)(d) is added to parallel Crim. R. 19(C)(1)(g) and recognize that magistrates have authority to conduct temporary protection order proceedings in accordance with law. Consistent with the admonition in Hartt, however, any temporary protection order issued as a result of such proceedings must be signed by a judge.

Rule 53(D) Proceedings in Matters Referred to Magistrates

Civ. R. 53(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. Civ. R. 53(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

Civ. R. 53(D)(1), unlike former Civ. R. 53(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).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

Civ. R. 53(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 Civ. R. 53(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 pretrial orders without judicial approval on matters related to (1) pretrial management under Civ. R. 16; (2) discovery conducted pursuant to Civ. R. 26-37; (3) temporary orders issued pursuant to Civ. R. 75(N); (4) temporary restraining order governing marital property under Civ. R. 75(I) (2); or (5) any other orders necessary to the regulation of proceedings before a magistrate. All temporary protection orders, however, including orders issued to avoid bodily harm pursuant to Civ. R. 75(I)(2), must be signed by a judge and comply fully with the procedures set forth in R.C. 3113.31 and related sections. Civ. R. 53(D)(2)(b) replaces language in former Civ. R. 53(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. Civ. R. 53(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 Civ. R. 53(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.

Magistrate’s decision; objections to magistrate’s decision

Civ. R. 53(D)(3) prescribes procedures for preparation of a magistrate’s decision and for any objections to a magistrate’s decision.

Civ. R. 53(D)(3)(a)(ii), unlike former Civ. R. 53(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. Civ. R. 53(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 Civ. R. 53 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).

Civ. R. 53(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 Civ. R. 53(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 Civ. R. 53(D)(3)(a)(ii), unless that party has objected to that finding or conclusion as required by Civ. R. 53(D)(3)(b). While the prior waiver rule, prescribed by former Civ. R. 53(E)(3)(b) (effective July 1, 1995) and former Civ. R. 53(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.

Civ. R. 53(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 nonparty 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 Civ. R. 53(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 Civ. R. 53(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 Civ. R. 53(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 Civ. R. 53(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.

Civ. R. 53(D)(3)(b)(iv), as noted above, expands the “waiver rule” prescribed by former Civ. R. 53(E)(3)(b) (effective July 1, 1995) and former Civ. R. 53(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 Civ. R. 53(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 Civ. R. 53(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

Civ. R. 53(D)(4)(a), like sentence one of former Civ. R. 53(E)(4)(a), confirms that a magistrate’s decision is not effective unless adopted by the court.

Civ. R. 53(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).

Civ. R. 53(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 Civ. R. 53(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, 11 th 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 Civ. R. 53(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), 6 th 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), 11 th 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. 96APF 06-778, 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 Common. (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 Civ. R. 53(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 Civ. R. 53(D)(4)(d), like sentence one of former Civ.R. 53(E)(4)(b), requires that the court rule on timely objections. Sentence two of Civ. R. 53(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 Civ.R. 53(E)(4)(a), effective July 1, 1995, and retained by new Civ. R. 53(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, 2^nd Dist. App. No. 19856, 2003-Ohio-6063; Quick v. Kwiatkowski (Aug. 3, 2001), 2^nd 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, 3^rd Dist. App. No. 14-03-42, 2004-Ohio-1395; Palenshus v. Smile Dental Group, Inc., 3^rd Dist. App. No. 3-02-46, 2003-Ohio-3095,; Huffer v. Chafin, 5^th Dist. App. No. 01 CA 74, 2002 -Ohio-356; Rhoads v. Arthur (June 30, 1999), 5^th Dist. App. No. 98CAF 10050, 1999 WL 547574; Barker v. Barker (May 4, 2001), 6^th Dist. App. No. L-00-1346, 2001 WL 477267; In re Day, 7^th Dist. App. No. 01 BA 28, 2003 -Ohio-1215; State ex rel. Ricart Auto. Personnel, Inc. v. Industrial Comm’n. of Ohio, 10^th Dist. App. No. 03AP-246, 2003-Ohio-7030; Holland v. Holland (Jan. 20, 1998), 10^th Dist. App. No. 97APF 08-974, 1998 WL 30179; In re Gibbs (Mar. 13, 1998), 11^th 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 Civ. R. 53 in the review required of a trial judge upon the filing of timely objections to a magistrate’s decision.

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 Civ. R. 53(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.

Civ. R. 53(D)(4)(e) requires that a court that adopts, rejects, or modifies a magistrate’s decision also enter a judgment or interim order. Civ. R. 53(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. Civ. R. 53(D)(4)(e)(ii) permits the court, if immediate relief is justified, to enter an interim order based on the magistrate’s decision without waiting for or ruling on timely objections. 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. New sentence three of Civ. R. 53(D)(4)(e)(ii) provides that an interim order shall comply with Civ. R. 54(A), be journalized pursuant to Civ. R. 58(A), and be served pursuant to Civ. R. 58(B). See Hall v. Darr, 6th Dist. App. No. OT-03-001, 2003-Ohio-1035.

Extension of time

Civ. R. 53(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 amagistrate’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

Civ. R. 53(D)(6) has no counterpart in former Civ. R. 53. 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), 2^nd 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), 5^th Dist. App. No. 00-CA-G-11-035, 2001 WL 704408 at *5; Unger v. Unger (Dec. 29, 2000), 12^th Dist. App. No. CA2000-04-009, 2000 WL 1902196 at *2 (citing In re Disqualification of Wilson, supra); Jordan v. Jordan (Nov. 15, 1996), 4^th 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), Civ. R. 53(D)(6) contemplates that disqualification on a ground other than bias may sometimes be appropriate.

Recording of proceedings before a magistrate

Civ. R. 53(D)(7), generally requiring recording of proceedings before a magistrate, is taken verbatim from former Civ. R. 53(D)(2).

Contempt in the presence of a magistrate

Civ. R. 53(D)(8) is adapted from sentences two, three, and four of former Civ. R. 53(C)(3)(c). Civ. R. 53(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, 2012 Adoption of Civ.R. 65.1(F) )

Rule 65.1(F), effective July 1, 2012, relates to the reference to a magistrate of civil protection order proceedings under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214. Rule 65.1(A) states that the provisions of the rule shall be interpreted and applied in a manner consistent with the intent and purposes of the protection order statutes, and supersede and make inapplicable in those proceedings the provisions of any other rules to the extent that their application is inconsistent with Civ.R. 65.1. Provisions of Civ.R. 65.1(F) which affect Civ.R. 53 include:

Civ.R. 65.1(F)(2)(b)(ii): 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(D)(2) or (3) and is not subject to the requirements of those rules.

Civ.R. 65.1(F)(2)(b)(iii): The court’s approval and signing of a magistrate’s denial or granting of an ex parte protection order does not constitute a judgment or interim order under Civ.R. 53(D)(4)(e) and is not subject to the requirements of that rule;

Civ.R. 65.1(F)(3)(b): A magistrate’s denial or granting of a protection order after a full hearing does not constitute a magistrate’s order or a magistrate’s decision under Civ.R. 53(D)(2) or (3) and Is not subject to the requirements of those rules;

Civ.R. 65.1(F)(3)(c)(iv): A court’s adoption, modification, or rejection of a magistrate’s denial or granting of a protection order after a full hearing does not constitute a judgment or interim order under Civ.R. 53(D)(4)(e) and is not subject to the requirements of that rule.

The adoption of Civ.R. 65.1(F) also nullifies comments in the 2006 Staff Note to Civ.R. 53(D)(2)(a)(i) relating to the entry of temporary protection orders under R.C. 3113.31.

The listing above is not exclusive or comprehensive. Additional provisions of Civ.R. 53 relating to such matters as the authority and responsibilities of a magistrate are also affected by Civ.R. 65.1(F). As indicated in the Staff Notes to Rule 65.1, the rule was adopted to provide a set of provisions uniquely applicable to civil protection order proceedings and to provide the court with the discretion to suspend the application in such proceedings of any other rules to the extent that their application interferes with the statutory process or are inconsistent with its purposes.

Staff Note (July 1, 2003 amendment)

Rule 53 Magistrates

Rule 53(E) Decisions in referred matters

The amendment to this rule is identical to an amendment to Juv. R. 40(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) [now division (E)(3)(d)] 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 version of 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 a trial court of a finding of fact or conclusion of law of a referee. Normandy Place Associates v. Beyer, 2 Ohio St.3d 102, 103 (1982) (syl. 1). As of July 1, 1985, sentence one of Civ. R. 53(E)(6) was 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 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 a magistrate). 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 no waiver position of the original Civ. R. 53. See State ex rel. Booher v. Honda of America Mfg., Inc., 88 Ohio St.3d 52 (2000) (confirming that the waiver rule now applies to conclusions of law as well as to findings of fact by a magistrate).

The amendment thus makes three changes in Civ. R. 53(E), none of which are intended to modify the substantive scope or effect of the waiver rule contained in sentence four of former Civ. R. 53(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 Civ. R. 53(E)(3)(b). Sentences two and three of former Civ. R. 53(E)(3)(b) are included in a new subdivision (c) entitled “Objections to magistrate’s findings of fact.” Sentence four of former Civ. R. 53(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 Civ. R. 53(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 Civ. R. 53(E)(4)(c).

Third, the amendment adds a new sentence to Civ. R. 53(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 Civ. R. 53(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 that prescribes a procedural requirement (see, e.g., sentence six of Civ. R. 51(A), which is analogous to the waiver rule of Civ. R. 53(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 which 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 Civ. R. 53 imposed no waiver at all and even the 1985 version imposed waiver only as to findings of fact by referees.

Staff Note (July 1, 1998 Amendment)

Rule 53(A) Appointment.

The 1998 amendment to this division changed “traffic referee” to “traffic magistrate” to conform to the 1996 amendment of Rule 14 of the Ohio Traffic Rules. No substantive change is intended. Rule 53(C) Reference and powers.

The 1998 amendment to division (C)(3)(a) was to change cross-references to Civ. R. 75 necessitated by 1998 amendments to that rule. Division (C)(3)(d) was amended to change “referee” to “magistrate” to conform to the 1996 amendment of Rule 14 of the Ohio Traffic Rules. No substantive change is intended.

Rule 53(E) Decisions in referred matters.

The 1998 amendment was to division (E)(4)(b) of this rule. The amendment was made because some trial judges apparently had avoided ruling upon objections to magistrates’ reports since the previous rule appeared to require only “consideration” of the objections. The amendment should clarify that the judge is to rule upon, not just consider, any objections.

An identical amendment was made to division (E)(4)(b) of Juv.R. 40, also effective July 1, 1998.

Staff Note (July 1, 1996 Amendment)

Rule 53(E) Decisions in referred matters

The 1996 amendment corrected the first sentence of division (E)(2), which erroneously stated that a magistrate’s decision was to include “proposed” findings of fact and conclusions of law. The amendment deleted the word “proposed”. The amendment is technical only and no substantive change is intended

Staff Note (July 1, 1995 Amendment)

Rule 53(A) Appointment

Changes the title of “referee” to “magistrate” and makes clear that the same person may exercise magisterial authority under the Civil and Criminal Rules. By limiting the power of appointment to courts of record, the rule eliminates any authority implicit in the prior rule for appointment of referees by mayor’s courts.

Rule 53(B) Compensation

Eliminates the prior authority to tax the compensation of a referee appointed on an interim basis as part of court costs. The Supreme Court Rules Advisory Committee is of the opinion that the salaries of judicial officers should be borne by the taxpayers generally, rather than by the parties to cases.

Rule 53(C) Reference and Powers

(C)(1) Order of Reference. This division replaces language previously found in Rule 53(A). It makes clear that magistrates have authority to act only on matters referred to them by a judge in an order of reference, but permits that order of reference to be categorical or specific to a particular case or motion in a case. Rule 53(C)(1)(a) (iii) codifies in part the result in Hartt v. Munobe (1993), 67 Ohio St. 3d 3, but requires that consent to a magistrate’s presiding at a jury trial must be written. Division (C)(1)(c) largely tracks prior language, which makes it clear that a particular judge in a given order of reference may limit the powers generally provided in this rule for magistrates.

(C)(2) General Powers. Only stylistic changes are made, except that the provision for recording proceedings before magistrates is moved to Rule 53(D) and changed. (See Staff Note for Rule 53(D) below)

(C)(3) Power to Enter Orders. Division (C)(3)(a) clarifies the authority of magistrates to enter orders that are effective without being approved by a judge. It codifies existing practice in some courts in the state. Division (C)(3)(b) provides that any party may move to set the order aside, but the order remains effective unless a stay is granted.

(C)(3)(b) Contempt in the Magistrate’s Presence. This division codifies the inherent power of magistrates, as judicial officers, to deal with contempt of court which occurs in their actual presence. The core purpose of the contempt power is to permit courts to deal with disruptions of proceedings and to maintain order. This power is as much needed in proceedings before magistrates as before other judicial officers. The rule follows Fed. R. Crim. P. 42 in requiring that the magistrate certify in writing what he or she perceived that constitutes contempt. The clerk is to provide an immediate copy of any magistrate contempt order to an appropriate judge so that there can be prompt judicial review of any contempt order.

(C)(3)(d) Other Orders. The General Assembly has recognized the existence of the referee system and from time to time conferred authority directly on referees, particularly in juvenile matters. This rule is necessary to prevent any inference of intent to override those statutes by adoption of this revised rule.

(C)(3)(e) Form of Magistrate’s Orders. This division clarifies the form in which magistrate’s orders are to be prepared so that they will be easily identified as such by parties and on the dockets.

Rule 53(D) Proceedings

Prior language largely drawn from Federal Civil Rule 53 relative to special masters and largely applicable to situations where special masters were appointed for individual cases and were not court employees is eliminated. To prevent any implication that proceedings before magistrates are to follow any different procedure from other civil proceedings, division (D)(1) is added. Division (D)(2) requires that proceedings before magistrates be recorded by whatever method a particular court deems appropriate. The rule is not meant to limit courts to particular recording means, but to emphasize that, as judicial officers of courts of record, magistrates should conduct proceedings before them on the record.

Rule 53(E) Decisions in Referred Matters

New division (E) entirely replaces the prior language which required preparation of reports by referees. Experience throughout the state demonstrated that often the report writing requirement substantially slowed the decision of cases without adding anything of value to the decision-making process. The new rule preserves the authority of judges to require reports by so specifying in orders of reference. In the absence of such a requirement, however, magistrates will now prepare a magistrate’s decision [division (E)(1)]. If a party desires that the magistrate’s decision embody the detail characteristic of a referee’s report, the party may make a request for findings of fact and conclusions of law under Civ. R. 52, either before or after the magistrate’s decision is filed [division (E)(2)]. The fourteen-day time period for objections is preserved and it begins to run only when a magistrate’s decision embodying findings and conclusions is filed, if they have been appropriately requested [division(E)(3)(a)].

Division (E)(3)(b) prescribes the form of objections and requires that they be specific; a general objection is insufficient to preserve an issue for judicial consideration. The rule permits the parties to tailor the objection process by providing that a magistrate’s findings of fact will be final. The rule reinforces the finality of trial court proceedings by providing that failure to object constitutes a waiver on appeal of a matter which could have been raised by objection. Compare United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140(1985).

Division (E)(4) prescribes the procedure to be followed by the court with respect to a magistrate’s decision. Proposed decisions are effective only when adopted by the court. However, a magistrate’s decision to which no objection is made may be adopted unless there is apparent error; the judge is no longer required to conduct an independent review and make a determination himself or herself. The last sentence of division (E)(4)(b), paralleling Civ. R. 59, permits a court to refuse to hear new evidence on objections unless the evidence would not have been obtained in time to present it to the magistrate.

Division (E)(4)(c) conforms existing law on interim orders to the new style of “magistrate’s decision” as opposed to reports. No substantive change is intended.

Proposed Staff Notes (July 1, 2020)

Division (C)(2)

A major improvement to federal practice in the last half century was the authorization given magistrate judges to conduct civil jury trials. F.R.C.P. 73. Following the lead of the federal courts, Ohio magistrates also now conduct civil jury trials with written consent of all parties as authorized by Civ.R. 53(C)(1)(c). Yet, as demonstrated in Gilson v. American Institute of Alternative Medicine, 10th Dist. Case No. 15AP-548, 2016-Ohio-1324, ¶¶ 28-29, 103, Ohio procedure remains cumbersome after jury trials conducted by magistrates, and may require the trial court to unnecessarily review factual findings of the jury and certain interlocutory rulings of a magistrate. This is unnecessarily time consuming and costly.

The amendment adds a new Division (C)(2) and renumbers the existing Division (C)(2) as Division (C)(3). New Civ.R. 53(C)(2) streamlines the procedure following jury trials conducted by magistrates upon unanimous consent of the parties, although still requiring the entry of judgment by the trial court. Factual findings of the jury and the magistrate’s interlocutory rulings preceding the entry of judgment, are no longer required to undergo a cumbersome and expensive procedure for which essentially the first line of appeal has been to the trial court, rather than directly to a court of appeals.