Ohio Crim. R. 19
To assist courts of record and pursuant to reference under Crim.R. 19(D)(1), magistrates are authorized, subject to the terms of the relevant reference, to do any of the following:
In performing the responsibilities described in Crim.R. 19(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:
A court of record may, for one or more of the purposes described in Crim.R. 19(C)(1), refer a particular case or matter of a category of cases or matters to a magistrate by a specific or general order of reference or by a rule.
A court of record may limit a reference by specifying or limiting the magistrate's powers, including, but not limited to, directing the magistrate to determine only particular issues, directing the magistrate to perform 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.
Subject to the terms of the relevant reference, a magistrate may enter pretrial orders without judicial approval if necessary to regulate the proceedings and if not dispositive of a claim or defense of a party.
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 by the clerk on all parties or their attorneys.
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.
Subject to the terms of the relevant reference, a magistrate shall prepare a magistrate's decision respecting any matter referred under Crim.R. 19(D)(1).
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.
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 by the clerk 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 Crim.R. 19(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Crim.R. 19(D)(3)(b).
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 Crim.R. 19(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.
An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection.
An objection to a factual finding, whether or not specifically designated as a finding of fact under Crim.R. 19(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.
Except for a claim of plain error, a party shall not assign 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 Crim.R. 19(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Crim.R. 19(D)(3)(b).
A magistrate's decision is not effective unless adopted by the court.
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. No sentence recommended by a magistrate shall be enforced until the court has entered judgment.
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.
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.
A court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment or interim order.
The court may enter a judgment either during the fourteen days permitted by Crim.R. 19(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 Crim.R. 19(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.
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. 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).
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.
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.
Except as otherwise provided by law, all proceedings before a magistrate shall be recorded in accordance with procedures established by the court.
Contempt sanctions under Crim.R. 19 (C)(2)(e) may be imposed only by a written order that recites the facts and certifies that the magistrate saw or heard the conduct constituting contempt.
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.
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.
Ohio. Crim. R. 19
Staff Note (July 1, 2000 Amendment)
Rule 19 Magistrates
Rule 19(A) Appointment
This division was amended by deleting the reference to compensation and moving it to a new division (B) of the rule. The amendment also deleted the reference to "traffic referee" consistent with the 1996 amendment of Rule 14 of the Ohio Traffic Rules. The inconsistency in the rules between the titles of "magistrate" and "referee" has been eliminated.
Rule 19(B) Compensation
This entirely new division (B) restates the existing rule that the compensation of a magistrate shall be set by the court, adds new language that is consistent with Civ.R. 53 and Juv.R. 40, and states that no part of the compensation of a magistrate shall be taxed as costs.
Rule 19(C) Reference and powers
Rule 19(C)(1) Order of reference
This division of the rule was revised substantially to expand the authority of magistrates in the criminal areas beyond arraignment and preliminary, non-dispositive matters. This division incorporates all the powers and duties set out in division (B)(1) of the prior rule, with the exception of motion practice pursuant to Crim.R. 47, the authority to compel witnesses and the magistrate's duty to issue orders in writing. A new division (C)(1)(f) expands the authority of magistrates to hear motions in misdemeanor cases, subject to the unanimous consent of the parties if imprisonment is a possible penalty. The authority to compel witnesses has been moved to a new division (C)(4) that sets out a magistrate's general powers. The requirement that a magistrate's order be in writing and in the record has been moved to new division (C)(5)(e). [See staff note for Rule 19(C)(5)(e) below.]
This new division (C) further expands the authority of magistrates in misdemeanor cases to accept guilty and no contest pleas, hear non-jury contested cases with the consent of all parties if imprisonment is a possible penalty, recommend sentences, and issue temporary protection orders. The authority of the magistrates in felony cases has not been expanded beyond that which exists under the current rule. Although magistrates have the authority to preside over jury trials, see Hartt v. Munobe (1993), 67 Ohio St. 3d 3, and Civ.R. 53 and Juv.R. 40, the rule expressly limits a magistrate's authority to preside over criminal trials to non-jury misdemeanor cases.
Rule 19(C)(2)
This new division tracks the language of Civ.R. 53(C)(1)(b) and Juv.R. 40(C)(1)(b) and makes it clear that magistrates have authority to act only on matters referred to them by a judge in an order of reference pursuant to division (C)(1), but permits an order of reference to be categorical or specific to a particular case or motion in a case.
Rule 19(C)(3)
This new division tracks language of Civ.R. 53(C)(1)(c) and Juv.R. 40 (C)(1)(c) and makes it clear that a particular judge in a given order of reference may limit the powers generally provided in this rule for magistrates.
Rule 19(C)(4) General powers
This new division substantially tracks the language of Civ.R. 53(C)(2) and Juv.R. 40(C)(2) and outlines the general powers of magistrates to regulate proceedings as if by the court, including the power to issue an order of attachment and set bail in cases involving direct or indirect contempt.
Rule 19(C)(5) Power to enter orders
Division (C)(5)(a) retained the essence of the prior rule which permits magistrates, in certain specifically identified proceedings, to enter orders that are effective without judicial approval. The amendment expands the number of proceedings in which a magistrate might issue such an order by describing the order in more general terms rather than specifically identifying the nature of each order. [See Civ.R. 53(C)(3)(a) and Juv.R. 40(C)(3)(a).] A magistrate may issue an order pursuant to division (C)(5)(a) only if it is a pretrial order necessary to regulate the proceedings, is temporary in nature and is not dispositive of a claim or defense of a party. The following are examples of the types of proceedings in which a magistrate might issue an order that would become effective without judicial approval: 1) proceedings described in division (C)(1) of this rule; 2) motions to amend the complaint pursuant to Crim.R. 7; 3) pretrial discovery proceedings under Crim.R. 15 and Crim.R. 16; 4) assignment of counsel under Crim.R. 44; and 5) requests for continuances.
Division (C)(5)(b) is consistent with the prior rule that permitted an appeal of a magistrate's order, but was amended in several ways. The mechanism for an appeal of the magistrate's order is no longer an objection but a motion to set aside the order, a procedure consistent with the current practice under Civ.R. 53(C)(3)(b) and Juv.R. 40(C)(3)(b). The amendment also extended the time within which an appeal of the order might be filed from seven to fourteen days and clarified that the order remains effective unless a stay is granted. Finally, although the better practice is to file a timely motion to set aside, if a party fails to appeal an order under this division, the order may still be reviewed by a judge in a later objection to a subsequent magistrate's decision.
Rule 19(C)(5)(c) Contempt in the magistrate's presence
Division (C)(5)(c), Contempt in the magistrate's presence, codified the inherent power of magistrates, as judicial officers, to deal with contempt of court that occurs in their actual presence. This authority is consistent with that granted to magistrates in Civ.R. 53(C)(3)(c) and Juv.R. 40(C)(3)(c).
Rule 19(C)(5)(d) Powers conveyed by statute
Division (C)(5)(d), a new division, makes it clear that nothing in this rule is intended to override those statutes that have expressly conferred authority on referees and magistrates.
Rule 19(C)(5)(e) Form of magistrate's orders
Division (C)(5)(e), a new division, tracks the language of Civ.R. 53(C)(3)(e) and Juv.R. 40(C)(3)(e) and 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 19(D) Proceedings
This entirely new division emphasizes that proceedings before a magistrate should be conducted in the same manner as if by the court and shall be recorded in accordance with procedures established by the court. Language identical to Civ.R. 53(D) and substantially similar to that in Juv.R. 40 was included.
Rule 19(E) Decisions in referred matters
This entirely new division of the rule incorporates the procedures for the issuance and judicial review of magistrates' decisions that have been applied in civil and juvenile cases since 1995. Although criminal matters present special constitutional and procedural issues when a magistrate is involved in such matters, the familiar procedures outlined in Civ.R. 53(E) and Juv.R. 40(E) provide a reliable framework for judicial review.
Rule 19(E)(1) Magistrate's decision
The language of this division tracks that in Civ.R. 53(E)(1) but contains an additional requirement that the decision be captioned as a magistrate's decision in order to distinguish it from a magistrate's order issued under division (C)(5) of the rule.
Rule 19(E)(2) Objections
The language of this division tracks that of Civ.R. 53(E)(2) except that the period of time within which a party may respond to the filing of an objection has been reduced from fourteen days to seven days in consideration of the shorter period of time in which courts must dispose of misdemeanor cases.
Rule 19(E)(3) Court's action on magistrate's decision
Rule 19(E)(3)(a) When effective
This new division of the rule contains language similar to Civ.R. 53(E)(4)(a) and Juv.R. 40(E)(4)(a) but departs from that language in a significant way. Because a magistrate's decision in a criminal case may include a sentence of imprisonment, the rule permits a court to enter judgment on a magistrate's decision only after the period for objections has expired or all parties have waived the right to file an objection. Finally, the new division underscores the rule that no sentence based upon a magistrate's decision shall be enforced until it has been adopted by the court and judgment has been entered.
Rule 19(E)(3)(b) Disposition of Objections
The language in this new division is identical to Civ.R. 53(E)(4)(b) and Juv.R. 40(E)(4)(b).
Staff Note (July 1, 2006 Amendment)
Crim.R. 19 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 19(A) Appointment
Crim.R. 19(A) is taken verbatim from the first two sentences of former Crim.R. 19(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 Traf.R. 14.
Rule 19(B) Compensation
Crim.R. 19(B) is taken verbatim from former Crim.R. 19(B).
Rule 19(C) Authority
Crim.R. 19 (C) is drawn largely from former Crim.R. 19(C)(1), (2), and (4) 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, 1993-Ohio-177, 615 N.E.2d 617 (emphases added). Crim.R. 19(C)(1)(g) corresponds to existing authority for a magistrate to conduct temporary protection order proceedings in accordance with law, although consistent with the admonition in Hartt, any temporary protection order issued as a result of such proceedings must be signed by a judge.
Rule 19(D) Proceedings in matters referred to magistrates
Crim.R. 19(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. Crim.R. 19(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
Crim.R. 19(D)(1), unlike former Crim.R. 19(C)(2) and (3), 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).
Magistrate's order; motion to set aside magistrate's order
Crim.R. 19(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(C)(5)(a), if "not dispositive of a claim or defense of a party." The language is intended to more accurately reflect proper and existing practice and is not intended to narrow the power of a magistrate to enter orders without judicial approval. Crim.R. 19(D)(2)(b) replaces language in former Crim.R. 19(C)(5)(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. Crim.R. 19(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 Crim.R. 19(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
Crim.R. 19(D)(3) prescribes procedures for preparation of a magistrate's decision and for any objections to a magistrate's decision.
Crim.R. 19(D)(3)(a)(ii), unlike former Crim.R. 19(E), adapts language from Civ.R. 52. The change is intended to make clear that 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. Crim.R. 19(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).
Crim.R. 19(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 Crim.R. 19(D)(3)(b)(iv). The latter provision 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 Crim.R. 19(D)(3)(a)(ii), unless that party has objected to that finding or conclusion as required by Crim.R. 19 (D)(3)(b). The amended waiver rule applies to any factual finding or legal conclusion in a magistrate's decision and the required warning is broadened accordingly.
Crim.R. 19(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 Crim.R. 19(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 Crim.R. 19(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 Crim.R. 19(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 Crim.R. 19(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.
Crim.R. 19(D)(3)(b)(iv) applies a "waiver rule" 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 Crim.R. 19(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 Crim.R. 19(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
Crim.R. 19(D)(4)(a), like sentence one of former Crim.R. 19(E)(3)(a), confirms that a magistrate's decision is not effective unless adopted by the court.
Crim.R. 19(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 permitted the trial court to modify an aspect of the magistrate's decision to which no objection had been made).
Crim.R. 19(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 Crim.R. 19(E)(3)(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 Crim.R. 19(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, 11th 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 Crim.R. 19(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), 6th 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), 11th 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. 96APF06-778, 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 Comm'n. (2003), 100 Ohio St. 3d 23, 24, 2003-Ohio-4832 at ¶ 4, 795 N.E.2d 662; State ex rel. Abate v. Industrial Common. (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 Crim.R. 19(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 decision.
Sentence one of Crim.R. 19(D)(4)(d), like sentence one of former Crim.R. 19(E)(3)(b), requires that the court rule on timely objections. Sentence two of Crim.R. 19(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 retained by new Crim.R. 19(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, 2nd Dist. App. No. 19856, 2003-Ohio-6063; Quick v. Kwiatkowski (Aug. 3, 2001), 2nd 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, 3rd Dist. App. No. 14-03-42, 2004-Ohio-1395; Palenshus v. Smile Dental Group, Inc., 3rd Dist. App. No. 3-02-46, 2003-Ohio-3095; Huffer v. Chafin, 5th Dist. App. No. 01 CA 74, 2002 -Ohio-356; Rhoads v. Arthur (June 30, 1999), 5th Dist. App. No. 98CAF10050, 1999 WL 547574; Barker v. Barker (May 4, 2001), 6th Dist. App. No. L-00-1346, 2001 WL 477267; In re Day, 7th Dist. App. No. 01 BA 28, 2003 -Ohio-1215; State ex rel. Ricart Auto. Personnel, Inc. v. Industrial Comm'n. of Ohio, 10th Dist. App. No. 03AP-246, 2003-Ohio-7030; Holland v. Holland (Jan. 20, 1998), 10th Dist. App. No. 97APF08-974, 1998 WL 30179; In re Gibbs (Mar. 13, 1998), 11th 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 Crim.R. 19 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 Crim.R. 19(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.
Crim.R. 19(D)(4)(e) requires that a court that adopts, rejects, or modifies a magistrate's decision also enter a judgment or interim order. Crim.R. 19(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. Crim.R. 19(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 Crim.R. 19(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
Crim.R. 19(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 a magistrate'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
Crim.R. 19(D)(6) has no counterpart in former Crim.R. 19. 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), 2nd 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), 5th Dist. App. No. 00-CA-G-11-035, 2001 WL 704408 at *5; Unger v. Unger (Dec. 29, 2000), 12th Dist. App. No. CA2000-04-009, 2000 WL 1902196 at *2 (citing In re Disqualification of Wilson, supra); Jordan v. Jordan (Nov. 15, 1996), 4th 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), Crim.R. 19(D)(6) contemplates that disqualification on a ground other than bias may sometimes be appropriate.
Recording of proceedings before a magistrate
Crim.R. 19(D)(7), generally requiring recording of proceedings before a magistrate, is taken verbatim from former Crim.R. 19(D)(2).
Contempt in the presence of a magistrate
Crim.R. 19(D)(8) is adapted from sentences two, three, and four of former Crim.R. 19(C)(5)(c). Crim.R. 19(D)(8)(b), unlike its predecessor, explicitly requires that the clerk provide a copy of a contempt order to the subject of the order.