Rule 53.Referees

Rule 15-6-53 treats a reference to a referee as an unusual step rather than a routine one. Outside certain support proceedings under chapter 25-7A, a court should refer a jury case to a referee only when the issues are complicated, and a nonjury case only on a showing of some exceptional condition, apart from matters of account or difficult damage computations. The referee appointed cannot have a relationship to the parties, counsel, the action, or the court that would require a judge to step aside under the Code of Judicial Conduct, unless the parties consent after full disclosure. Compensation is fixed by the court or set by the statute authorizing the reference, and while a referee cannot hold the report hostage over unpaid fees, an unpaid referee can get a writ of execution against the party who owes it.

Once appointed, the referee runs the hearing much like a judge would, within the bounds the order of reference sets. The referee can compel production of documents and other evidence, rule on the admissibility of evidence unless the order says otherwise, and put witnesses and even the parties under oath for examination. If a party asks, the referee has to record the evidence offered and excluded, the same way a judge sitting without a jury would. The referee must set the first meeting of the parties within twenty days of receiving the order of reference, and either side can ask the court to speed things along if the referee is not moving with reasonable diligence. If a party does not show up, the referee can proceed without them or adjourn to another day. Witnesses can be compelled to attend by subpoena, with the same contempt consequences that apply to any other South Dakota witness who ignores one.

What happens to the referee’s report depends on whether a jury is involved. In a nonjury case, the referee files the report along with a transcript and the exhibits, the clerk notifies the parties, and any party has ten days to object in writing. The court then reviews the referee’s findings under the same clearly erroneous standard that applies to a judge’s own findings, and can adopt, modify, reject, or send the report back to the referee with instructions, or take further evidence itself. In a jury case, the referee is not asked to report the underlying evidence at all — the findings themselves are admissible and can be read to the jury, subject to whatever objections the court allows.

Two smaller provisions round out the rule. If the parties stipulate in advance that the referee’s findings will be final, only questions of law arising from the report remain open afterward. And before filing the finished report, a referee may circulate a draft to counsel for all parties to gather their suggestions first.