Magistrates

(A) Appointment The court may appoint one or more magistrates who shall have been engaged in the practice of law for at least four years and be in good standing with the Supreme Court of Ohio at the time of appointment. A magistrate appointed under this rule also may serve as a magistrate under Crim.R. 19. The court shall not appoint as a magistrate any person who has contemporaneous responsibility for working with, or supervising the behavior of, children who are subject to dispositional orders of the appointing court or any other juvenile court. (B) Compensation The compensation of magistrates shall be fixed by the court, and no part of the compensation shall be taxed as costs. (C) Authority (1) Scope 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: Determine any motion in any case, except a case involving the (a) determination of a child’s status as a serious youthful offender; Conduct the trial of any case that will not be tried to a jury, except the (b) adjudication of a case against an alleged serious youthful offender; Exercise any other authority specifically vested in magistrates by (c) statute and consistent with this rule. (2) Regulation of proceedings 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: Issuing subpoenas for the attendance of witnesses and the production (a) of evidence; (b) Ruling upon the admissibility of evidence; (c) Putting witnesses under oath and examining them; (d) Calling the parties to the action and examining them under oath; (e) When necessary to obtain the presence of an alleged contemnor in cases involving direct or indirect contempt of court, issuing an attachment for the alleged contemnor and setting bail; Imposing, subject to Juv.R. 40(D)(8), appropriate sanctions for civil (f) or criminal contempt committed in the presence of the magistrate. (D) Proceedings in matters referred to magistrates (1) Reference by court of record (a) Purpose and method 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. (b) Limitation 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 to perform particular 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. issues, directing the magistrate (2) Magistrate’s order; motion to set aside magistrate’s order (a) Magistrate’s order (i) Nature of order 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. (ii) Form, filing, and service of magistrate’s order 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. (iii) Magistrate’s order include A magistrate’s order includes any of the following: (A) Pretrial proceedings under Civ.R. 16; (B) Discovery proceedings under Civ.R. 26 to 37, Juv R. 24, and Juv.R. 25; (C) Appointment of an attorney or guardian ad litem pursuant to Juv.R. 4 and Juv.R. 29(B)(4); (D) Taking a child into custody pursuant to Juv.R. 6; (E) Detention hearings pursuant to Juv.R. 7; (F) Temporary orders pursuant to Juv.R. 13; (G) Extension of temporary orders pursuant to Juv.R. 14; (H) Summons and warrants pursuant to Juv.R. 15; (I) Preliminary conferences pursuant to Juv.R. 21; (J) Continuances pursuant to Juv.R. 23; (K) Deposition orders pursuant to Juv.R. 27(B)(3); Orders for social histories, physical and mental (L) examinations pursuant to Juv.R. 32; Proceedings upon application for the issuance of a (M) temporary protection order as authorized by law; (N) Other orders as necessary proceedings. to regulate the (b) Motion to set aside magistrate’s order 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. (3) Magistrate’s decision; objections to magistrate’s decision (a) Magistrate’s decision (i) When required 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). (ii) Findings of fact and conclusions of law 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. (iii) Form; filing, and service of magistrate’s decision 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). (b) Objections to magistrate’s decision. (i) Time for filing 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. (ii) Specificity of objection An objection to a magistrate’s decision shall be specific and state with particularity all grounds for objection. (iii) Objection to magistrate’s factual finding; transcript or affidavit 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. (iv) Waiver of right to assign adoption by court as error on appeal 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). Action of court on magistrate’s decision and on any objections to magistrate’s (4) decision; entry of judgment or interim order by court (a) Action of court required A magistrate’s decision is not effective unless adopted by the court. (b) Action on magistrate’s decision 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. (c) If no objections are filed 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. (d) Action on objections 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. (e) Entry of judgment or interim order by court A court that adopts, rejects, or modifies a magistrate’s decision shall also enter a judgment or interim order. (i) Judgment 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. (ii) Interim order 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. (5) Extension of time 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. (6) Disqualification of a magistrate 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. (7) Recording of proceedings before a magistrate Except as otherwise provided by law, all proceedings before a magistrate shall be recorded in accordance with procedures established by the court. (8) Contempt in the presence of a magistrate (a) Contempt order 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. (b) Filing and provision of copies of contempt order 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. (c) Review of contempt order by court; bail 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. Effective Date: July 1, 1972 Amended: July 1, 1975; July 1, 1985; July 1, 1992; July 1, 1995; July 1, 1998; July 1, 2001; July 1, 2003; July 1, 2006; July 1, 2011; July 1, 2014; July 1, 2023 Staff Note (July 1, 2001 Amendment) Juvenile Rule 40 Juvenile Rule 40(C) Reference and powers Magistrates 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 Juvenile Rule 40(E) Decisions in referred matters Magistrates 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)