Article I. General Provisions

215

Rule 4: Referees.

(a) Hearings Before Magistrates. The judge may direct that any case or class of cases of which the juvenile court has jurisdiction shall be heard in the first instance by the magistrate. Such cases shall be conducted in the same manner provided for the hearing of cases by the court except as otherwise specified herein. The magistrate in the conduct of the proceedings shall have the powers of a trial judge, and shall have the same authority as the judge to issue any and all process. Upon the conclusion of the hearing in each case, the magistrate shall transmit to the judge all papers relating to the case, together with the magistrate's written findings and recommendations.

(b) Review of Magistrate's Actions. Any hearing by a magistrate on any preliminary matter shall be final and not reviewable by the judge of the juvenile court, except on the court's own motion. The setting of bond in detention hearings and any matter that is a final adjudication of a child shall not be construed to be preliminary matters under this section and are reviewable by the judge of the juvenile court upon request or upon the court's own motion, except as provided in section (c)(1) below.

(c) Request for Rehearing Before Judge.

 (1) Any party may, within five judicial days of the transmittal to the judge of the written findings and recommendations of the magistrate, file a request with the court for a hearing by the judge of the juvenile court. The judge may, on his own motion, order a rehearing of any matter heard before a magistrate, and shall allow a hearing if a request for such hearing is filed as herein prescribed. However, there shall be no rehearing in any delinquent or unruly case in which the petition is dismissed by the magistrate after a hearing on the merits.

 (2) Each party shall be informed at the hearing before the magistrate of the right to a rehearing before the juvenile court judge, of the time limits within which a request for a rehearing must be perfected, and of the manner in which to perfect such request.

 (3) Unless the judge orders otherwise, the recommendations of the magistrate shall be the decree of the court pending a rehearing.

(d) Confirmation of Magistrate's Findings and Recommendations. In case no hearing before the judge is requested, or when the right to a hearing is waived, the findings and recommendations of the magistrate become the decree of the court when confirmed by an order of the judge. The final order of the court shall, in any event, be proof of such confirmation, and also of the fact that the matter was duly referred to the magistrate. [As amended by order entered January 31, 1984, effective July 1, 1984; and by order filed January 13, 2012, effective July 1, 2012.]

Advisory Commission Comments.

This rule is adapted from those provisions of T.C.A. § 37-1-107 which are procedural in nature.

 It should be noted that a waiver of the right to a rehearing before the judge (either by express waiver or by failure to request rehearing within five days of the hearing before the referee) does not constitute a waiver of the right to appeal to circuit court under T.C.A. § 37-1-159. Indeed, in certain cases it may be advisable to waive rehearing before the juvenile court judge and proceed directly to appeal de novo to circuit court. See State v. York, 615 S.W.2d 154 (Tenn. 1981). Once the juvenile court judge confirms the referee's findings and recommendations, such findings and recommendations become the order of the juvenile court, from which the appeal to the circuit court is taken. It is at the point of confirmation by the juvenile court judge that the time for such appeal begins to run.

Regarding the last sentence in section (c)(1) of the rule, the constitutional prohibition against being placed twice in jeopardy for the same offense applies to juvenile court proceedings as well as adult proceedings. Breed v. Jones, 421 U.S. 519 (1975); State v. Jackson, 503 S.W.2d 185 (Tenn. 1973). Jeopardy in delinquent and unruly proceedings attaches with the swearing in of the first witness in an adjudicatory hearing, whether that hearing is before the judge or the referee. While the child whose case has been heard by a referee has a right to a rehearing before the juvenile court judge and a right to a de novo appeal of the order of the juvenile court judge to the circuit court, the state has no such right to a rehearing or de novo appeal. State v. Jackson, supra. Therefore a dismissal of the petition following a full adjudicatory hearing before the referee must be confirmed by the juvenile court judge and is not subject to a rehearing or de novo appeal.

The state may appeal an order or judgment entered by the referee, the substantive effect of which results in the dismissal of a petition without a full hearing on the merits. The state may also appeal an order granting or refusing to revoke probation. For further insight on this issue, see Rule 3 of the Tennessee Rules of Appellate Procedure.

Advisory Commission Comments [2012].

The 2012 amendment substitutes the terms “magistrate” or “magistrates” for the terms “referee” or “referees,” consistent with statutory changes enacted by the General Assembly.

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