Plumb v. State , 149 Utah Adv. Rep. 18 ( 1990 )

STEWART, Justice,

concurring:

I join Justice Zimmerman in approving parts a) and b) of the stipulation. However, I do not agree that the use of a master was appropriate in this case.

Rule 53(b) of the Utah Rules of Civil Procedure provides, “A reference to a master shall be the exception and not the rule.” That Rule also states that “in actions to be tried without a jury, save in matters of account, a reference shall, in the absence of the written consent of the parties, be made only upon a showing that some exceptional condition requires it.” (Emphasis added.)

As the majority opinion indicates, Utah Rule 53(b) is virtually the same as the federal rule, and we look to federal case law as a guide in interpreting our own rule. According to Wright and Miller, “Because the use of masters is expensive and frequently leads to delay, reference to a master is justified only in very rare cases.” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2601, at 776-77 (1971) (footnotes omitted). Also,

[i]t is a matter of common knowledge that references greatly increase the cost of litigation and delay and postpone the end of litigation. References are expensive and time-consuming. The delay in some instances is unbelievably long. Likewise, the increase in cost is heavy. For nearly a century, litigants and members of the bar have been crying against this avoidable burden of costs and this inexcusable delay.

Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir.1942).

The undesirability of a reference to a master is even greater in nonjury cases such as this. According to one commentator, “With a few minor exceptions, references in non-jury cases run counter to the spirit and purpose of judicial administration in the federal courts.” Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum. L.Rev. 452, 459 (1958). One reason for this is that in nonjury cases, the court is required to accept the master’s findings of fact unless clearly erroneous. See Utah R.Civ.P. 53(e)(2). In comparison, “[i]n jury cases the master’s findings, if accepted by the court, constitute merely prima facie evidence to be submitted to the jury for its consideration.” Kaufman, 58 Colum.L. Rev. at 460.

The authorities quoted above demonstrate that masters should only be used in exceptional cases involving extremely complex litigation and imposing a significant burden on- the court. Furthermore, in non-jury cases, Rule 53(b) requires a showing of an exceptional condition before a master may appropriately be used. No such showing has been made in this case. The determination of attorney fees in this class action suit may have been difficult, but it certainly did not involve complex, factual, or legal issues. The dollar amount involved is large. That does not mean that the basic considerations and issues are substantially different from any other case involving the award of attorney fees. The trial court would not have been significantly burdened by deciding the issue itself. That the amount of the fee involved has stirred wide public interest is no justification for referring the matter to a master. For these reasons, I would hold that the use of a master was inappropriate in this case.

Furthermore, I disagree with the majority’s statement that the roles of a master and a magistrate are similar in the federal system. Although magistrates may be appointed to act as masters, the duties of a magistrate are much broader. See Federal Magistrates Act, 82 Stat. 1107-1114 (1968), 28 U.S.C. §§ 631-39 (1988). See also Note, Masters and Magistrates in the Federal Courts, 88 Harv.L.Rev. 779, 796-97 (1975). Also, unless a reference to a magistrate expressly states otherwise, magistrates appointed to act as masters are specifically excepted from the requirements of Rule 53 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 53(f). In my view, it is a mistake for this Court to look to the treatment of federal magistrates for purposes of analogy to the treatment of masters under Rule 53.