October 11, 2007, Introduced by Reps. Stakoe, Knollenberg, Stahl, Pearce, Spade, Nitz, Booher, Steil, Nofs, Meekhof, Gaffney, David Law and Polidori and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
(MCL 600.101 to 600.9947) by adding section 2977.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2977. (1) In a civil action pending in circuit court in
which the complaint or counterclaim asserts a claim arising under
the Michigan zoning enabling act, 2006 PA 110, MCL 125.3101 to
125.3702, the court may designate a referee to conduct a hearing as
provided in this section in order to establish the evidentiary
basis for the court's subsequent decision in the case. The court
shall not designate a referee under this section unless it
determines that it would be in the interest of the parties.
(2) The order designating the referee shall specify whether
the referee is to make proposed findings and recommendations to the
court as part of the record in the case.
(3) If a case is ordered for a hearing by a referee under this
section, any party may petition the court for removal from the
hearing of any claim unrelated to zoning, or for other modification
or addition of the order.
(4) The parties may stipulate to the selection of a referee. A
referee selected by agreement of the parties need not meet the
qualifications listed in section 2978. If the court determines that
a case is appropriate for application under this section, the court
must appoint a referee stipulated to by the parties, if that
individual is willing to serve within a period that would not
interfere with the court's scheduling of the case for trial.
(5) If the order referring the case for the establishment of a
record by a referee does not specify the identity of a referee, the
order shall set the date by which the parties are to have conferred
on the selection of a referee. If the parties do not advise the
court clerk of the referee agreed upon by that date, the court
shall appoint one as provided in subsection (6).
(6) The procedure for selecting a referee from the approved
list of referees must be established by the judges of each judicial
circuit. The court clerk shall assign referees in a rotating manner
that assures as nearly as possible that each referee on the list is
assigned approximately the same number of cases over a period of
time. If a substitute referee must be assigned, the same or similar
assignment procedure shall be used to select the substitute.
(7) The rule for disqualification of a referee designated
under this section is the same as that provided in the Michigan
court rules for the disqualification of a judge. The referee must
promptly disclose any potential basis for disqualification.
(8) The contents of the order appointing the referee shall
include the following:
(a) Whether the referee is to make proposed findings and
recommendations as part of the record made, and, if so, the
procedure and timing for each party to object to such findings and
recommendations.
(b) The circumstances, if any, in which the referee may
communicate ex parte with the court or a party.
(c) The time within which the hearing is to be completed.
(d) The manner in which the referee is to be compensated.
(e) Whether the referee has been appointed by stipulation or
by court assignment.
(f) Any directions and authority for the referee with regard
to the timing and completion of discovery, and any participation of
the referee in connection with the resolution of disputes with
regard to discovery.
(g) Authority, if any, of the referee to enter orders, and the
process to be used for that purpose.
(h) Any other terms the court deems relevant.
(9) The court clerk shall send a copy of the order appointing
the referee to each party and to the referee selected. Upon receipt
of the court's order, the referee shall promptly confer with the
parties to schedule the hearing in accordance with the order. After
conferring with the parties, the referee may make a recommendation
to the court for entry of an order specifying the timing and means
for the completion of discovery. However, before entry of an order
by the court, the parties shall have the opportunity to notice a
motion for hearing objecting to entry of an order in the form
recommended by the referee, with the hearing date on such motion to
be not more than 21 days following the date of the referee's
recommendation.
(10) The referee shall prepare and serve on the parties, and
file with the court in connection with the case, a notice
containing all of the following:
(a) The identity of all parties who will participate in the
hearing.
(b) The issues to be presented at the hearing, and a
specification of all unresolved issues in the case that will not be
presented at the hearing before the referee.
(c) The schedule for conducting the hearing.
(d) All documents to be submitted to the referee, and a
schedule for that submission, including, without limitation,
documents or summaries providing information about the case in
advance of the hearing.
(11) The referee shall conduct the hearing in accordance with
the Michigan court rules and rules of evidence applicable to and
customary in nonjury trials.
(12) Within 21 days after the completion of the hearing, and
production of the record, the referee shall send a notice to the
court for filing in the case, with a copy to the judge assigned to
the case, stating that the hearing has been conducted. Within 28
days of the filing of the notice, the entire record, including any
findings and conclusions made by the referee, if applicable, and
all exhibits, shall be forwarded to the court for filing in the
case, after which a status conference shall be held with the court
for determination of an order directing further proceedings leading
to the finalization of the issues that were the subject of the
hearing before the referee.
(13) If the case is settled during the hearing process, the
attorneys shall prepare and submit to the court within 21 days the
appropriate documents to conclude the case. Upon motion of the
parties, the court may extend the time for such submission.
(14) A verbatim record of the hearing shall be made by a court
reporter or recorder. In addition, any party shall be permitted, at
his, her, or its expense, to make a video record of any witnesses,
or of any site relevant to the issues in the hearing. The referee
shall take reasonable steps to ensure that any video recording of a
site is fair and impartial in its presentation.
(15) A referee is entitled to reasonable compensation based on
an hourly rate commensurate with the referee's experience and usual
charges for services performed.
(16) The cost of the referee and of conducting the proceedings
before the referee shall be divided between the parties on a pro
rata basis unless otherwise agreed by the parties or ordered by the
court. The referee's fee shall be paid no later than the earlier of
the following:
(a) Forty-two days after the hearing process is concluded.
(b) The entry of judgment.
(c) The dismissal of the action.
(17) Subject to objection of the referee, the court may order
an arrangement for the payment of the referee's fee other than that
provided in subsection (16).
(18) The referee's fee is deemed a cost of the action, and the
court may make an appropriate order to enforce the payment of the
fee.
(19) If a party objects to the total fee of the referee, the
matter may be scheduled before the trial judge for determination of
the reasonableness of the fee.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5293(request no.
00353'07 *) of the 94th Legislature is enacted into law.