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In re Establishment of A Temporary Committee

Supreme Court of Montana

May 28, 2019

IN RE THE ESTABLISHMENT OF A TEMPORARY COMMITTEE KNOWN AS THE STANDING MASTER ADVISORY COMMITTEE

         Re: Standing Master Commission

         Dear Chief Justice McGrath:

         I write today as President of the State Bar of Montana and on behalf of the Family Law Section to request that the Montana Supreme Court consider establishing a study commission to review and recommend changes to the laws that regulate the use of standing masters in domestic relations cases in the state of Montana. I am informed by members of the Section that this request is the result of ongoing discussions concerning this topic and will not come as a surprise to you or the court as the preferred method moving forward on this issue.

         The current statute regarding the use of standing masters, section 3-5-124, Montana Code Annotated, was passed by the Montana Legislature in 1999 with little fanfare. It was ostensibly passed to address the Fourth Judicial District's use of special masters (authorized by Mont. R. Civ. P. 53) in routine rather than exceptional dissolution cases. Since 1999, standing masters have been used to varying degrees by judicial districts across the state. For example, I am informed that some districts currently use standing masters as triers of fact in all family law matters; others use standing masters in cases where parties are appearing pro se; others appoint standing masters with a degree of randomness; and some do not use them at all-likely because no funding exists in such districts to pay standing masters. In workload studies, it appears standing masters are considered to have authority and autonomy equivalent to district court judges, although their compensation is significantly less, and their authority is vaguely defined by statutes.

         The Family Law Section has expressed concern to the Board of Trustees of the State Bar of Montana that, although they are not elected by the public as are district court judges, standing master decisions are essentially binding on the parties with little recourse. For example, in In re Parenting of L.G.L., 2018 MT 313N, the Supreme Court stated that the Supreme Court's role is to review the district court's decision to adopt a standing master's report to determine whether it applied the correct standards of review to the standing master's findings of fact and conclusions of law. The Supreme Court noted that upon a properly made objection, a district court reviews a standing master's findings of fact for clear error, but "a district court may not modify or reject the master's findings by substituting its own view of the evidence for that of the master." Thus, the Family Law Section is concerned that unelected standing masters have now assumed the role of district court judge and apparently have the same powers as a district court judge, but the public has little, if any, input regarding who becomes a standing master, and has no ability to vote whether a standing master should remain in office.

         The Family Law Section has identified other issues and concerns related to the use of standing masters for determinations in family law cases that appear to warrant further discussion to ensure that parties' due process rights are adhered to and respected, and to ensure that Montana has a fair process to adequately address family law issues in a timely manner. Those issues and concerns include the constitutionality of the process for the appointment of a standing master to a particular case; the process for the removal of a standing master from a particular case; the jurisdictional authority of standing masters; the requirements for the notice of appeal to the district court of a standing master order; the timely availability of a reliable trial transcript; the cost to obtain a trial transcript as a necessary expenses for an appeal to the district court; the standard of review on appeal to the district court of a standing master order; an apparent lack of clarity as to what constitutes an appealable order; and the additional expense that the employment of a standing master brings to the entire domestic relations process.

         In light of these concerns raised by the Section, it is my sense as President, and the sense of the Executive Committee of the State Bar of Montana, that the issues involving the employment of standing masters in domestic relations cases could be properly addressed by the establishment of a temporary Supreme Court Commission that would take comment from all interested parties, study the issue of the use of standing masters in domestic relations cases, and make recommendations regarding the use of standing masters in family law cases. This temporary commission's goal would be to bring consistency throughout the state of Montana as to how standing masters are used in family law cases, and would work to ensure that the continuing use of standing masters promotes judicial economy, reduces the cost of litigation, and reduces the burden on the court system while protecting the interests of the people of the state of Montana involved in family law matters.

         I will conclude by noting, again, that it is my understanding that the foregoing approach is the preferable and workable approach to address the Section's concerns. If I am incorrect in my understanding, please let me know. On behalf of the Family Law Section, and the State Bar, thank you very much ...


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