A judicial officer who presides over civil hearings but usually does not have the authority or power to render judgment.
Referees are usually appointed by a judge in the district in which the judge presides. Referees aid the judge by hearing certain matters and by making recommendations concerning special or complicated issues. Judges generally delegate a portion of their judicial power to referees, who then report their recommendations to the judge concerning the issue.
The English chancery master was the fore-runner of the present-day referee. In eighteenth-century England, the chancellor courts used special masters to aid the chancery in handling its expanding EQUITY jurisdiction. Accordingly, the chancery master aided the chancellor only in equitable matters, such as marriage dissolutions, trust matters, and financial accountings. U.S. jurisdictions adopted the use of special masters or referees modeled on the English chancery master.
In most jurisdictions a referee must be an attorney. Nevertheless, in some complex property or financial matters, a judge may appoint a person who is not an attorney to preside over a dispute and to make recommendations. The term reference usually refers to the trial and determination of issues arising in a civil action by a person appointed for that purpose by the court. An order of reference, which is also called a referral order, is the court order that appoints the referee to hear and recommend action on the issues that are specified in the order.
Judges generally appoint a referee to hear complicated matters, such as financial accountings, property lien issues, or business valuation disputes. Many jurisdictions also have referees who are appointed to hear specified special-jurisdiction matters, such as FAMILY LAW, trust and probate, and pretrial discovery disputes. Parties to an action may agree to have a matter heard by a referee. In some jurisdictions the parties' consent to the appointment of a referee to hear the matter may result in the parties' waiver of any right to a jury trial.
A referee makes recommendations to the judge or court that appoints the referee but generally does not issue enforceable orders. A referee generally cannot render judgment in a case. The referee's general duty is to provide a report to the appointing judge on the issues of fact or law that prompted the referee's appointment. It has been said that "nothing can originate before a referee, and nothing can terminate with or by the decision of a referee." Referees generally serve at the pleasure of the judge and accordingly hold less judicial authority than the appointing judge. As a judicial officer, a referee is subject to the CODE OF JUDICIAL CONDUCT.
In some jurisdictions a referee may be called a SPECIAL MASTER, court commissioner, or a magistrate. The Federal Rules of Civil Procedure, for example, allow for the appointment of a "master," who can be a referee, an auditor, an examiner, or an assessor. Generally, however, the duties of a master are the same as those of a referee, and the appointing judge may limit the master's powers to report only on specified issues or to perform only particular acts. The federal judiciary also uses magistrate judges—judicial officers who perform a broad range of delegated or statutory duties, such as presiding over initial hearings in criminal cases, misdemeanor trials, pretrial proceedings, and the trial of civil cases. The Federal Magistrate Act of 1968 (Pub. L. No. 90-578, 82 Stat. 1107 [codified at 28 U.S.C.A. §§ 604, 631–639]) created the current system of federal magistrate judges and governs the duties of such magistrates.
Sinclair, Kent, Jr. 1996. Practice Before Federal Magistrates. New York: Bender.