Rule 3.991.Review of Referee Recommendations

A referee's product is a recommendation, not an order. MCR 3.991 is the bridge between the two. It tells a party how to ask a judge to look at the recommendation before an order issues, puts a deadline on the judge when the minor is in placement or detention, and sets the standard that decides whether the recommendation survives.

The request and the timing

Under subrule (A)(1), before signing an order based on a referee's recommended findings and conclusions, a judge must review them if a party asks in the manner subrule (B) prescribes. If no request is filed in time, subrule (A)(2) lets the court enter an order in accordance with the recommendation. Subrule (B) requires the request to be in writing, to state the grounds for review, to be filed with the court within 7 days after the conclusion of the inquiry or hearing or within 7 days after the issuance of the referee's written recommendations, whichever is later, and to be served on the interested parties by the person requesting review at the time of filing. A proof of service must be filed. Subrule (C) gives any party 7 days after the request is filed to respond in writing.

The judge who does not wait

Subrule (A)(3) preserves the judge's power to review a recommendation before the time for requesting review expires and to enter an appropriate order. That carries a consequence. Under subrule (A)(4), once an order enters that way, a request for review may not be filed, and reconsideration of the order comes by motion for rehearing under MCR 3.992.

How the judge decides

Subrule (D) puts a clock on the judge in one class of case. Absent good cause for delay, the judge shall consider the request within 21 days after it is filed if the minor is in placement or detention. The same subrule adds that the judge need not schedule a hearing to rule on a request for review.

Subrule (E) supplies the standard, and it leans toward adoption. The judge must enter an order adopting the referee's recommendation unless one of two things is true: the judge would have reached a different result had he or she heard the case, or the referee committed a clear error of law that likely would have affected the outcome or cannot otherwise be considered harmless. A legal error that changed nothing is not enough.

What the judge may do

• Adopt, modify, or deny the recommendation in whole or in part on the basis of the record and the memorandums prepared, under subrule (F).
• Conduct a hearing instead, whichever the court in its discretion finds appropriate for the case.
• Stay any order or grant bail to a detained juvenile pending the decision on review, under subrule (G).