Utilizing "special masters" in Florida: unanswered questions, practical considerations, and the order of appointment.

AuthorMarsee, Howard R.

'Masters" are adjuncts of the court, exercising limited judicial authority and appointed by the court to perform specific tasks. "Special masters" typically are appointed by the presiding judge to serve in specific cases. (1) "General masters" serve more broadly and typically are appointed to serve over a variety or class of cases, often on a venue-wide basis. (2) The terms "special master" and "general master" are sometimes confused or used indiscriminately, even within the same case. (3)

The master's authority derives from his or her appointment by the court. Historically, courts relied upon the common law and upon the court's inherent authority to appoint masters and to define the master's duties and responsibilities. (4) The practice of utilizing masters to assist trial judges in the disposition of cases predates the American legal system and has its origin in common law English chancery courts during the reign of King Henry VIII. (5) Congestion in the federal court system spawned the use of masters in the United States as early as the colonial period. (6)

Over time, the use and appointment of masters came to be governed by state and federal rules of civil procedure. At the state court level in Florida, the appointment of special masters in civil cases is now governed by Florida Rule of Civil Procedure 1.490; Florida Family Law Rule of Procedure 12.492; and Florida Probate Rule 5.697. (7) At the federal level, appointment is governed by Federal Rule of Civil Procedure 53. The role of masters has evolved from a strict and limited role of trial assistance to a more expanded view--with the duties and responsibilities of masters now extended to every phase of litigation. (8) As court dockets have burgeoned, and as litigation has become increasingly complex, the utilization of masters has increased.

Masters perform a wide variety of tasks. They serve various roles in pretrial discovery and proceedings, facilitate the mediated settlement of cases, make recommendations and submit reports to judges, assist with complex issues, chair advisory committees composed of lawyers of record, help administer class actions and settlements, propose orders jointly recommended by the parties, make decisions based on judicial reference or the parties' consent, and become engaged in post-trial proceedings. (9)

The purpose of this article is to identify some of the yet unanswered questions surrounding the use of special masters in Florida and to provide practical information for lawyers involved with the appointment of a "special magistrate" or "special master." Because the special master's authority and duties derive from the order appointing him or her, special consideration has been given to the form of that order.

A note on nomenclature is unavoidable. "Magistrates" have replaced "masters" in Florida state courts. Effective October 1, 2004, the Supreme Court of Florida amended Rule 1.490, Rule 12.492, and Rule 5.697 so that all references to "master" thereafter became "magistrate." (10) "Special masters" became "special magistrates." The change was essentially administrative and cosmetic. (11) Both "master" and "magistrate" denote court appointees with varying degrees of limited judicial authority. The subject of general magistrates, except incidentally, is outside the scope of this article. We are concerned here with masters serving specifically delineated tasks in specific cases--masters that have been historically designated as "special masters."

Rule 53 continues to use the term "master" but has abandoned the term "special master." A careful reading of Rule 53, however, suggests that Rule 53 uses "master" synonymously with the historic term "special master." "Master" within the context of Rule 53 is a court-appointee in specific cases before the district court. Rule 53 makes no distinction between "general masters" and "masters" because federal courts have institutionalized the role of magistrate judge. (12)

For purposes of simplicity and unless context clearly indicates the need for a distinction, this article will use the terms "master," "special master," and "special magistrate" interchangeably.

Consent to Appointment

The issue of consent under Rule 1.490(c) and Rule 12.492(b) is straight forward. No referral may be made to a special magistrate without the consent of the parties. (13) Several Florida appellate decisions have held lack of consent fatal to the appointment of a special master. (14) Mandamus is appropriate to correct a trial court's referral without consent. (15) In Prater v. Lehmbeck, 615 So. 2d 760 (Fla. 4th DCA 1993), where a party filed a blanket objection to referral to a master, but nevertheless participated in the referred proceedings, the trial court assumed consent from the party's participation and its order was reversed on appeal. To minimize issues regarding consent, the order appointing the special magistrate should recite that the referral is consensual.

An interesting consent issue is whether a party, having given consent ab initio to the appointment of a special magistrate, may later withdraw that consent. This may occur in matters involving continuous magistrate supervision, such as supervision of discovery matters, when one party decides that the magistrate's rulings aren't as favorable as desired. Rule 1.490, Rule 12.492, and Rule 5.697 are silent on this question and there seems to be no Florida appellate law on point. Logic would seem to require, at a minimum, that the party withdrawing consent should move for a court order relieving the magistrate of his or her duties and responsibilities and--until that order is rendered--that the party is bound by the order appointing the special magistrate.

Probate Rule 5.697 is a relatively new rule, having been adopted in 1992 and "patterned after" Rule 1.490. (16) On its face, Rule 5.697 has no requirement for consent by the parties to the appointment of a special magistrate, and as yet there are no appellate decisions addressing this point. The drafters of Rule 5.697 apparently chose not to adopt the consent language contained in subsection (c) of Rule 1.490. It would seem to follow that a consent requirement was not intended. One reason for this may lie in the relatively narrow scope of duties performed by the special magistrate in probate. Subsection (b) provides that special masters may be appointed "in connection with the court's review of guardianship accountings and plans." This delegation of duties is more restrictive than the delegation of duties contained in Rule 1.490. (17)

Under Federal Rule 53, consent is not in all instances necessary. Subsection (a)(1) provides that nonconsensual referrals may be justified by exceptional conditions; the need to perform an accounting or difficult damage computation; or the need to address pretrial or post-trial matters that cannot be addressed effectively and timely by an available district judge or magistrate judge. (18) Notwithstanding Article III of the U.S. Constitution, nonconsensual referrals to special masters have been sustained against constitutional attack where the master's duties were performed under the "total control and jurisdiction of the district court...." (19) The Supreme Court has recognized that in certain situations, the efficiency and expertise benefits of such referrals outweigh the diminution of Article III values (neutral, independent adjudication)--creating a kind of balancing test. (20)

The Master's Qualifications

Rule 1.490(b), Rule 12.492(a), and Rule 5.697(b) provide that the court may appoint "members of The Florida Bar as special magistrates." The subsections go on, however, to provide that "upon showing that the appointment is advisable, a person other than a member of the Bar may be appointed." Rule 5.697 requires "good cause shown" for the appointment of some person other than a member of The Florida Bar. Where the task to be performed requires certain types of expertise (e.g., accounting, corporate share valuation, patent issues, scientific questions), the need for a nonlawyer may be the raison d'etre for appointment of the master.

Rule 53(a)(2) contains no Bar membership requirement. It provides that, without the consent of the parties, "a master must not have a relationship to the parties ... that would require disqualification of a judge under 28 U.S.C. [section] 455." The court may enter an order of appointment only after the master has filed an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. [section] 455. The Academy of Court-Appointed Masters, a national organization, offers the following suggested affidavit language.

I have thoroughly familiarized myself with the issues in this case. As a result of my knowledge of the case, I can attest and affirm that I know of no grounds for disqualification under 28 U.S.C. [section] 455 that would prevent me from serving as the special master in the captioned matter. (21)

Rule 1.490, Rule 12.492, Rule 5.697, and Rule 5.697 require no affidavit regarding disqualification, but they do provide in subsection (d), subsection (c), and subsection (c), respectively, that all "grounds for disqualification of...

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