JI-159

August 1, 2025

SYLLABUS

Communication between a Referee and the Judicial Officer to whom the Referee provides recommended orders is not ex parte communication.

References: Canon 3(A)(4), Ethics Opinion JI-29, Ethics Opinion JI-56, Ethics Opinion JI-51; In re AMB, 248 Mich App at 217; Campbell v Evans, 358 Mich 128, 131 (1959).

OPINION

A judicial officer asks if communicating with a referee who makes recommendations and prepares orders for entry by the judicial officer constitutes ex parte communication.

Relevant Judicial Canons

CANON 3. A Judge Should Perform the Duties of Office Impartially and Diligently.

 A(4). A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:

…

c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.

Michigan Court Rule 9.201(B)(2) provides that magistrates and referees are “judges.” Referees are employees of the court and, as such, are considered part of the judicial system. They are subject to the same ethical obligations that govern judges, including compliance with the Judicial Canons. These Canons impose strict requirements regarding impartiality, confidentiality, and the proper administration of justice. Because referees are hired and compensated by the court, they do not act as advocates or representatives for any party but instead serve as neutral officers tasked with assisting the court in resolving matters efficiently and fairly. Their obligation to confidentiality extends to all aspects of their role, including communications with judges, parties, and counsel. This framework ensures the integrity of the judicial process and reinforces public trust in the court system. For further guidance on the ethical parameters governing referees, see Judicial Ethics Opinions JI-29, JI-56, and JI-51, which affirm the applicability of the Canons to court-appointed referees and clarify the permissible scope of their interactions within the judicial process.

Referees are appointed by the Court to conduct hearings and prepare written recommended orders for judicial review. While their role is critical to the efficiency of the court process, their authority is limited to making recommendations; the ultimate decision-making power remains with the judge. As stated in the Juvenile Justice Benchbook, “[A] hearing referee’s recommendations and proposed order [under MCL 712A.10(1)(c)] 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, quoting Campbell v Evans, 358 Mich 128, 131 (1959). This principle underscores the necessity of judicial oversight in all substantive legal determinations. As the Michigan Court of Appeals emphasized, “[W]hen it is apparent that someone other than a judge made the substantive legal decision in a case [in which 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.

The judge is the ultimate decision-maker, while the referee serves in a supporting role by conducting hearings, taking testimony, and preparing recommended orders. Because the referee’s recommendation is not binding and is subject to judicial review, it is essential that the proposed order aligns with the judge’s interpretation of the law as applied to the specific facts of the case. Accordingly, a referee seeking the judge’s input or clarification during the drafting process is not an ex parte communication; rather, it promotes efficiency and accuracy by ensuring that the recommendation reflects the judge’s legal reasoning and avoids unnecessary delays or revisions. Furthermore, the parties retain the right to review the recommendation, understand the basis for the decision, and pursue appropriate appellate remedies if necessary.

Because referees are subject to the Judicial Canons, all information they receive regarding a case must be handled in accordance with those ethical standards. As such, communications are not ex parte so long as both parties have access to the same information, ensuring transparency, fairness, and adherence to due process.