The use of masters to aid the court began in England. At first, masters were essentially fact finders who aided the court in pre-trial matters. Later, during the 18th century, masters were used in England to aid the court with significant motion practice and other time-consuming and expensive pre-trial issues. But they did not issue orders. They only made recommendations to the court.

In 1810, Chief Justice John Marshal brought the concept of fact finders to this country in the form of "auditors." But the first major common law case to discuss special masters came in 1920 when the U.S. Supreme Court decided Ex Parte Peterson. In that case, Justice Louis Brandeis stated that: "Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties."

Brandeis went on to point out that "in Connecticut, auditors were appointed by the court in actions of 'book debt' – and the same practice was early introduced in Vermont and other states…."

What made Ex Parte Peterson different, however, was that the auditor was appointed without the consent of the parties and in a jury case. That auditor was appointed to "examine… books and papers, make computations, and hear testimony" and report back to the court concerning which issues were disputed and which were undisputed. The auditor was also directed to "express an opinion on those (items) in dispute." The plaintiff objected to this appointment, but the auditor was still appointed. The plaintiff appealed and the court resolved two basic questions:

Question: Does the appointment of an auditor violate the Seventh Amendment of the U.S. Constitution?

Answer: No. It did not violate the Seventh Amendment because the auditor did not unduly interfere with the jury's determination of an issue of fact. The court simply directed the auditor to "form and express an opinion upon facts and items in dispute."

Question: Does the court have the inherent power to appoint such an auditor?

Answer: Yes. Justice Brandeis explained: "The District Court found that in order to render possible and intelligent consideration of the case by court and jury, it was necessary to appoint an auditor and confer upon him two functions. The first was to segregate those items upon which the parties agreed and to classify those actually in controversy; and thus, having defined the issues, to aid court and jury by directing their attention to the matters in dispute. The second function of the auditor was to form a judgment and express an opinion upon such of the items as he found to be in dispute. In order to perform these functions, the auditor would be required not merely to examine books, vouchers and other papers and to make computations, but to hear and pass upon conflicting testimony of the parties and of other witnesses. This full hearing was obviously necessary to enable the auditor to form a trustworthy judgment on the disputed items, would serve also to narrow the field of controversy. For such a tentative trial acts as a sifting process by which misunderstandings and misconceptions as to facts are frequently removed."

That case essentially ended the federal debate concerning the constitutionality of the appointment of fact finders without the consent of the parties and the rule entered the Federal Rules of Civil Procedure in 1938 as Rule 53. However, Rule 53 was revised substantially in 2003 to clarify the use of masters. It now states that masters may be appointed to:

Perform duties consented to by the parties.

Hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by: some exceptional conditions; the need to perform an accounting or resolve a difficult computation of damages.

Address pretrial and post-trial matters that cannot be addressed effectively and timely by an available district judge or a magistrate judge of the district.

Modern Uses

Today, the use of special masters has become a substantial aid to the court in resolving complicated matters. Masters have broad functions in federal court, including acting as fact finders, supervising complex litigation, handling discovery disputes, supervising depositions, drawing legal conclusions, ruling on procedural issues and acting as mediators.

Although Rule 53 has resolved most of the issues surrounding special masters in the federal court, it has not resolved the issues in Connecticut.

At the present time, Connecticut has several statutes and Practice Book rules that refer to what could be called masters. The first is Section 52-434 of the Connecticut General Statutes, which deals with judges who become state referees, judge trial referees, and state referees who are appointed by the chief justice and are qualified members of the bar. In addition, we have Chapter 19 of the "Connecticut Rules of Court" (the Practice Book) as well as Chapter 23 and 25 of the Practice Book. We also have cases such as Seal Audio, Inc. v. Bozak Inc., 199 Conn. 496 (1986), and other cases which followed it and are described in an article by Jules Lang entitled "Connecticut's Attorney Referees" (62 Connecticut Bar Journal 272 (1988)). In that article, attorney Lang points out that state Chief Justice John A. Speziale recommended the use of attorney referees and the program was initiated on Feb. 1, 1984. Although the program was successful, there remained a substantial issue concerning consent and whether it violated the Connecticut Constitution to appoint a special master without the consent of the parties.

Seal Audio was one of the first cases to come to grips with this subject. That case reviewed the history of masters in Connecticut and showed how confusing our statutes and rules have become. In Seal Auto, the court held that consent was still an issue, but the requirement could easily be waived by failure of a party to make a timely objection. In addition, in some cases, consent was not needed if the facts warranted an appointment.

Under Section 19-2A of the Practice Book, the court may "refer to an attorney trial referee any civil non-jury case in which the issues have been closed, provided that the appearing parties or their counsel consent to the referral."

Section 23-53, however, which is entitled "Referral of Cases to Fact Finders" states as follows:

"The court, on its own motion, may refer to a fact finder any contract action pending in the superior court, …in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and cost. Such cases may be referred to a fact finder only after the pleadings have been closed, a certificate of closed pleadings has been filed, and the time prescribed for filing a jury trial claim has expired." (Emphasis added.)

Section 52-543 et. seq., Chapter 19, Chapter 23, and Chapter 25 are not entirely consistent and need to be reviewed.

In Connecticut masters are presently fact finders only. Their conclusions will be reviewed only for clear error. That is different than Rule 53, which provides that "the court must decide de novo all objections to finding of fact made or recommended by a master, unless the parties, with the court's approval, stipulate that: (A) the findings will be reviewed for clear error; or (B) the findings of the master appointed will be final. Legal conclusions will be decided de novo and procedural matters will only be set aside for an abuse of discretion.

Constitutional Authority

Then there is the state constitutionality debate. That was extensively discussed in Seal Audio and largely put to bed as long as masters were only fact finders.

But family support magistrates are lawyers, and under §46b-231(M) they can determine child and spousal support motions and motions for modification in certain cases. "A person aggrieved by a final decision of a family support magistrate is entitled to judicial review…." See 46b-231(N). If they can make that determination, they are going beyond mere fact finders and that authority is likely to be found constitutional.

If a family support magistrate is constitutional in Connecticut, then special masters functioning in a role beyond a fact finder should also be constitutional as they are under the federal Constitution.

Next is the expense issue. Most courts have found that the expense to the parties is actually decreased by the appointment of a master. But even if it may be increased, appointment is still warranted. Our Superior Court seems to recognize that in Section 23-61 of the Practice Book which allows the court to refer jury matters ["with a reasonable expectation of a judgment" under $50,000] to non-binding arbitration. That, of course, will add expense if the matter is not settled by the arbitrator.

The consent issue remains a potential problem. The Connecticut Supreme Court has done everything it can to sidestep this issue so as to uphold the constitutionality of masters without the consent of the parties. It is suggested that the time has come to revise our rules of practice, and probably our related statutes, along the lines of Rule 53 of the Federal Rules. That should end the consent debate in Connecticut.

If this is done, masters from the private bar will have clearer guidelines to follow and will have a wider scope of functioning and authority. This will help our judges with the vexing and complicated issues that are with us today and which will probably increase in the future.