805.06 Referees.

(1) A court in which an action is pending may appoint a referee who shall have such qualifications as the court deems appropriate. The fees to be allowed to a referee shall be fixed by the court and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court, as the court may direct. The referee shall not retain the referee's report as security for compensation; but if the party ordered to pay the fee allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.

(2) A reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.

(3) The order of reference to the referee may specify or limit the referee's powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee's report. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before the referee and to do all acts and take all measures necessary or proper for the efficient performance of duties under the order. The referee may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The referee may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may personally examine them and may call the parties to the action and examine them upon oath. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as a court sitting without a jury.

(4)

(a) When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Any party, on notice to the parties and the referee, may apply to the court for an order requiring the referee to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte or may adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(b) The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas. If without adequate excuse a witness fails to appear to give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in ss. 885.11 and 885.12.

(c) When matters of accounting are in issue, the referee may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the referee directs.

(5)

(a) The referee shall prepare a report upon the matters submitted by the order of reference and, if required to make findings of fact and conclusions of law, the referee shall set them forth in the report. The referee shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(b) In an action to be tried without a jury the court shall accept the referee's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instruction.

(c) In an action to be tried by a jury the referee shall not be directed to report the evidence. The referee's findings upon the issues submitted are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

(d) The effect of a referee's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a referee's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

History: Sup. Ct. Order, 67 Wis. 2d 585, 693 (1975); 1975 c. 218.

The findings of a referee have the effect of findings of fact by a trial court and are to be upheld unless they are contrary to the great weight and clear preponderance of the evidence. Thus, in this case, the trial court properly refused to admit additional evidence on an issue of fact that the referee was appointed to resolve. Kleinstick v. Daleiden, 71 Wis. 2d 432, 238 N.W.2d 714 (1976).

The order of reference in this case impermissibly delegated to the referee judicial power vested by Art. VII. s. 2, of the Wisconsin Constitution in Wisconsin's unified court system. Constitutional judges can take no power from the legislature to subdelegate their judicial functions. Referees may share in judicial labor but cannot assume the place of the judge. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923.

Article VII. s. 8, of the Wisconsin Constitution provides that “the circuit court shall have . . . such appellate jurisdiction in the circuit as the legislature may prescribe by law." The legislature has not granted the circuit courts appellate jurisdiction over rulings by referees. A provision in a circuit court order of reference that the circuit court's review of the referee's rulings be based on the referee's erroneous exercise of discretion contravened the constitution, statutes, and rules regarding circuit court and appellate court authority and practice. Insofar as the order of reference authorized the referee to supervise pretrial discovery disputes, the order did not contravene the state constitution's vesting of judicial power in a unified court system. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923.

A referee's fees increase the costs of litigation and may have a chilling effect on litigants. A reference to a referee in effect requires litigants to pay for the court system twice — once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates “if they chill advocacy severely enough to `effectively end the litigation' or impose `an intolerable burden on a losing litigant.'” Appointment of a referee is for the exceptional case; it is not the general rule. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923.

While a referee's conclusion on a legal issue is a recommendation only, the referee's challenged findings of fact are to be accepted unless clearly erroneous. Because, in this case, the evidentiary record supporting the amended report was not provided to the circuit court, the court was unable to determine whether the referee's amended findings were against the great weight and clear preponderance of the evidence. Thus, the circuit court erred when it spontaneously accepted the referee's amended report without addressing the defendant's objection or even considering the referee's findings of fact or reviewing the factual evidence supporting those findings. Associated Bank, N.A. v. Brogli, 2018 WI App 47, 383 Wis. 2d 756, 917 N.W.2d 37, 16-1443.