Chapter 9: Pretrial Proceedings

In this chapter. . .

This chapter discusses several issues that arise following a preliminary inquiry or preliminary hearing, including which proceedings a judge must conduct and which proceedings a referee may conduct. The chapter discusses the court’s ability to schedule a pretrial conference to isolate contested issues in a case and to set discovery, motion, and plea deadlines. The chapter also discusses issues that arise when a trial is held.

In an effort to provide trial courts with a quick practical guide through the process of pretrial hearings, the State Court Administrative Office (SCAO) developed the Toolkit for Judges and Attorneys:Pretrial Hearing. This toolkit is accessible at https://www.courts.michigan.gov/administration/offices/child-welfare-services/cws-toolkit/.

9.1Conducting Pretrial Proceedings

A.Judges

A judge must conduct a jury trial. MCR 3.912(A)(1). A judge may also conduct a nonjury trial if a proper demand has been made. MCR 3.912(B).

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). See In re Schmeltzer, 175 Mich App 666, 673-674 (1989) (disqualification of trial judge was not warranted, where the judge had presided over termination proceedings involving a younger sibling).

B.Referees

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.”¹

In a child protective proceeding, “[o]nly a person licensed to practice law in Michigan may serve as a referee at a child protective proceeding other than a preliminary inquiry, preliminary hearing, a progress review under MCR 3.974(A) or [MCR 3.974(B)], or an emergency removal hearing under MCR 3.974(C). In addition, either an attorney or a nonattorney referee may issue an ex parte placement order under MCR 3.963(B).”² MCR 3.913(A)(2)(b).

An attorney referee may conduct a contempt hearing but may not issue an order holding a person in contempt of court. In re Contempt of Steingold (In re Smith), 244 Mich App 153, 157 (2000); MCL 712A.10(1).

1.Length of Authority

Unless a party has demanded a trial by judge or jury, a referee may conduct the trial and further proceedings through the dispositional phase. MCR 3.913(B).

2.Scope of Authority

MCL 712A.10(1) sets out the scope of a referee’s authority. In re AMB, 248 Mich App 144, 216 (2001). Specifically, 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.” MCL 712A.10(1).

“[A] hearing referee’s recommendations and proposed order 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 217-218, 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 [where 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, quoting Campbell v Evans, 358 Mich 128, 131 (1959) (referee acted outside his authority when he entered an order permitting the withdrawal of a critically-ill premature infant’s life support).

Referees are bound by the rules governing the Judicial Tenure Commission and the Michigan Code of Judicial Conduct. MCR 9.201(B)(2) (defining judge to include referees); MCR 9.202 (providing the standards of judicial conduct).

3.Required Summary of Testimony and Recommended Findings and Conclusions

MCL 712A.10(1)(c) provides that if a case requires a hearing and the taking of testimony, the referee must 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. Similarly, MCR 3.913(A)(1) requires a referee to “make recommended findings and conclusions.”

4.Advice of Right to Appeal Referee’s Recommended Findings and Conclusions

A referee must advise the parties of their right to request that a judge review the referee’s recommended findings and conclusions. MCR 3.913(C)(1). See Section 20.1 for a detailed discussion on reviewing a referee’s recommendation.

C.Table Summarizing Who May Conduct What Proceeding