Ms. HOROWITZ. New misdemeanor cases.

Mr. DRINAN. Misdemeanor cases.

Ms. HOROWITZ. That's from the Senate report accompanying S. 1613. I'm not sure what page it's on, but they do quote the 3,000 figure. Mr. DRINAN. On the civil side, is there anything? Do they have a similar figure?

Ms. HOROWITZ. No.

Mr. DRINAN. All right. Well, I commend you. If Congress did in fact provide de novo review for the decision of the magistrate, would you still have constitutional difficulties?

Ms. HOROWITZ. I think it would reduce the constitutional concerns. Mr. DRINAN. Well, on the criminal side?

Ms. HOROWITZ. You still have them. You've got the whole problem of whether or not you can waive the jurisdiction in the first place. Otherwise, I think it would be constitutional with respect to the treatment of civil litigants.

Mr. DRINAN. Civil. But not on the criminal side.

Ms. HOROWITZ. Yes.

Mr. DRINAN. You have raised some very, very important points here. I am certain they are going to be very valuable to me.

Mr. Chairman, I have no further questions. I think the witness has explained the whole problem as a believe it exists. I am very, very grateful. So, thank you.

Ms. HOROWITZ. Thank you.

Mr. KASTEN MEIER. You stated that the bill's provisions for ugrading the quality and competency of magistrates don't go far enough to ensure consistent, high quality among the Federal magistrates.

Now, notwithstanding what is done with respect to the jurisdiction, presumably we would be interested in upgrading the Federal magistrates; in terms of what you specifically recommend to do that, you offer criteria such as: reputation for integrity and good character, demonstrated legal ability and commitment to equal justice under law, sound health and judicial temperament.

How are these to be applied? Are these applied to other judges, and where did you come up with the criteria?

MS. HOROWITZ. They were among the criteria under which the President's Advisory Panels are to select nominees for Federal judicial appointments.

Mr. KASTEN MEIER. You would put these into a statute with respect to magistrates, is that correct?

Ms. HOROWITZ. That's correct. They say in the Senate report they would hope that the appointees would have the following attributes, But then they pass everything off to the judicial conference in terms of promulgating actual standards. I think if Congress is going to greatly expand the jurisdiction of the magistrates, that it's Congress responsibility to ensure or to do what it can to ensure that those who serve as magistrates are in fact well qualified and high-calibre appointments, and that it is not enough to simply say in the bill that there should be a minimum of 5 years bar membership."

Mr. KASTENMEIER. Wouldn't these have to apply to an article III judge? If not, why not?

MS. HOROWITZ. Wouldn't the criteria put forth?

1

Mr. KASTEN MEIER. These that you are recommending we put into the statutes.

Ms. HOROWITZ. Well, because it would be in the section of the bill describing the selection and appointment method of magistrate under Congress' article I power and wouldn't have anything to do with the judges.

Mr. KASTENMEIER. In other words, you're setting down more precise criteria for magistrates that for article III judges?

Ms. HOROWITZ. Well, statutorially defining the criteria in recognition of the fact that the appointment procedure is so different for article III judges in comparison with the appointment procedures for magistrates, and that would be the justification for treating them differently in terms of setting out the criteria in statutory form.

Mr. KASTENMEIER. Well, I have some doubts about whether we would ever want to put that sort of thing into a statute.

In 1976, magistrates disposed of 78,474 petty offenses: 49,000 plus of these were traffic offenses; 5,800 involved hunting, fishing, and camping violations. You yourself state that 95 percent of criminal defendants, given the option of trial before magistrates, under current law chose magistrates.

Are these defendants, in your view, denied equal justice or granted inferior justice because they don't have their cases tried before an article III judge?

Ms. HOROWITZ. Not necessarily, assuming that they are freely consenting to be tried before a magistrate, and I don't have any evidence to present to the subcommittee that they are not.

But that does not answer the question, in our view, of whether or not you retain the consent provision. I don't think anybody would argue even if 90 percent of all criminal defendants waived their right to a jury trial, that we ever amend the Constitution so it doesn't provide for jury trials, and even if there are only 5 percent of all criminal defendants utilizing or exercising their option to go before a district court judge, that 5 percent is as entitled to justice as the other 95, so our concern with respect to the criminal provisions is the fundamental one of whether or not we retain the right to consent, and it is our position that especially in light of the constitutional question that that raises, that there is simply no justification for removing the consent provision.

It raises constitutional issues that can't be justified because it's going to eliminate paperwork, which is basically the justification that's been given.

Mr. KASTENMEIER. But it's your view, quite apart from consent or nonconsent, quite apart from that issue, that those 78,000 petty offense cases essentially were a brand of inferior justice. I ask you that because there's an implication in your testimony and others that there is a tendency to have poor people and certain types of offenses shunted before magistrates, and there's an inference suggested that these people are given less quality justice, and so I want to know whether these 78,000 petty offenses were branded with an inferior justice because they were not before an article III judge.

Ms. HOROWITZ. I have no evidence that they were, Mr. Kastenmeier, and I would suggest that at least the 50,000 who were before the magistrates on traffic offenses did not receive an inferior brand of justice.

But it's one thing to talk about giving the magistrate jurisdiction over petty offenses with the consent provision, which we would have. That's the way the law is now, and we have no objection to it, and we haven't objected to the way the magistrate system is operating other than to point out there is an unevenness in magistrates' quality, and that's conceded by the Senate report and by the Attorney General.

The problem, when we get into the civil area, you are then giving magistrates cases which involve a lot more complicated issues, including Federal, constitutional, and statutory issues than those that are involved in 50,000 traffic cases, or 13,000 violations of hunting and fishing; 5,800, I guess is what they handled.

So, no, I don't think that you have a serious problem with respect to giving petty offenders who consent inferior justice when they go before the magistrates, and I would not make that allegation. But I think you do have the potential for exactly that under the provisions with respect to civil litigants.

Mr. KASTEN MEIER. In the civil area there's a consent requirement, of course, and I don't know whether that really meets the question.

I guess my problem is that there is an underlying assumption that there's inferior justice here. As a consequence there's a tendency at least for people speaking in behalf of others to suggest that therefore they shouldn't want their cases tried before a magistrate. Considering the amount of judicial work disposed of already by magistrates, I'm wondering whether that suggestion is generally made with respect to all these cases?

MS. HOROWITZ. If I may say something there, sir, I think that the objection, when you talk about the possibility of second-class justice or inferior justice, it's not that you're pointing the finger only at the magistrates and saying that these people are incompetent and are not going to mete out justice. You're also pointing out the fact that there is no right to an appeal in a circuit court, that's also a part of the process by which we hope that our existing system metes our justice. So, the consequences for the civil litigants go beyond just the fact that they appear before a magistrate rather than a district court judge, at least under these proposals and the bill as passed by the Senate.

Mr. KASTENMEIER. On the question of consent, if a defendant can consent willingly and voluntarily, of course, to be tried without a lawyer or to absent himself from his own trial or indeed not to be tried at all by pleading guilty, why would it be unconstitutional to consent to a trial before a magistrate?

Ms. HOROWITZ. I'm not sure that it is. I mean there is no definitive Supreme Court case. If it is, it's because the trial before the article III judge is jurisdictional and thus cannot be waived, and the reason is that your waiving nonpersonal rights, rather than personal rights such as your right to counsel or your right to a jury trial, that you're waiving a right which the courts have found to have public interest implications and to exist on behalf of the public and not just on behalf of the individual and therefore you don't give an individual the opportunity to waive it.

Mr. KASTEN MEIER. Thank you, Ms. Horowitz. Actually, that's all the questions I have today. We appreciate your appearance.

Ms. HOROWITZ. Thank you.

Mr. KASTENMEIER. We're interested, of course, in your opinion and that of the ACLU in respect to the legislation before us.

[The prepared statement of Pamela S. Horowitz follows:]

STATEMENT OF PAMELA S. HOROWITZ, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON OFFICE

Thank you for the oppportunity to testify on two sets of legislative proposals before this Subcommittee one of which would limit or abolish the diversity jurisdiction of federal courts and one of which would expand the jurisdiction of federal magistrates. Both of these sets of proposals have as their goal the reduction of the workload of the federal judiciary. The American Civil Liberties Union, being an organization dedicated to the enforcement of federally-protected rights, shares the Subcommittee's concern about federal court congestion, since congested courts necessarily infringe on the ability of civil rights-civil liberties litigants to have their claims heard. The elimination or reduction of diversity jurisdiction would seem to be a reasonable approach to the problem of an overloaded federal judiciary because it would not deprive litigants of a forum for the enforcement of federal rights. Accordingly, we generally support the efforts of this Subcommittee to curtail diversity jurisdiction. The expansion of magistrates' jurisdiction, however, raises serious civil liberties issues and seems to us to be of limited usefulness in reducing court congestion. For these reasons, we oppose the enactment of any bill to enlarge the jurisdiction of federal magistrates.

I. DIVERSITY LEGISLATION

In earlier testimony before this Subcommittee during its Access to Justice hearings, Professor Burt Neuborne, testifying for the ACLU, characterized the access problem as one involving the allocation of scarce resources and cited "rationing" as one approach to the problem.1 Rationing involves limiting access to the federal courts to those litigants demonstrating a need for the unique institutional features of an Article III forum. These features include a high level of technical competence, a special sensitivity to the commands of the Federal Constitution, and an ability to withstand political and social pressures favoring the powerful over the powerless.

Whatever the historical justification for diversity jurisdiction, its primary beneficiaries today are mainly powerful commercial and tort litigants, whose claims do not require the enunciation and implementation of counter-majoritarian norms. Since the quality of justice dispensed to such litigants does not depend on the unique institutional services available in Article III courts, it is proper, in view of the scarcity of Article III resources, to require these litigants to press their claims in state courts. Moreover, diversity cases do not involve the enforcement of federally protected constitutional or statutory rights.

The benefits of redirecting diversity cases, in terms of the conservation of judicial resources, would be substantial. Statistics indicate that the abolition of diversity jurisdiction would reduce the civil caseload of federal district courts by about 24 percent. The Attorney General has estimated that the Justice Department's proposal, which would eliminate only those diversity actions brought by local plaintiffs, would work a 10 percent reduction in the civil caseload of the district courts. If anything, these figures understate the saving of judicial time that would result because most diversity cases, unlike most civil rights cases, involve substantial factual issues requiring extensive trial time.

Absent some evidence, then, that diversity jurisdiction is necessary to protect an overriding federal interest or that state courts are inadequate to the task of considering the claims of those litigants who under present law, are entitled to invoke diversity jurisdiction, the elimination or reduction of diversity cases does not raise civil liberties concerns and appears to be an efficacious approach to the judicial overload problem.

1 Statement of Burt Neuborne on Access to Justice and the Allocation of Judiciary Resources, July 20, 1977.

2 In fiscal year 1976 there were 130,597 total cases filed in the district courts. Of these, 31,675, or 24 percent, were diversity cases. Annual Report of the Director of the Administrative Office of the U.S. Courts 1976, table C-2, p. 293.

8 Letter to the Speaker of the House from Attorney General Griffin Bell, transmitting the Justice Department's draft bill.

II. MAGISTRATES' REFORM

The same analysis that leads us to favor the abolition or reduction of diversity cases causes us to oppose the expansion of magistrates' jurisdiction. The latter would divert cases to Article I magistrates that require the unique presence of an Article III judge. To this extent, it constitutes a form of rationing in which the scarce resource is replaced with an inappropriate alternative. Moreover, while the legislation depends for its justification on the need to reduce the workload of the federal courts, there is no basis for concluding that it would result in any substantial savings of judicial resources. These and other considerations make the expansion of magistrates' jurisdiction an unwise, if not unconstitutional, approach to the access problem.

A. The substitution of article I magistrates for article III judges in petty offense cases is unwise as a matter of policy and is of questionable constitutional validity

S. 1613 would eliminate the right of a defendant in a petty offense case to trial before a district court judge. Since many petty offenders are among the powerless of our society and some petty offense cases involve the interpretation of federal constitutional commands, the bill would thus sweep into magistrates' courts a number of cases meriting the attention of an Article III judge.

That the quality of justice dispensed in petty offense cases may depend on the presence of an Article III judge is clear from the experience with magistrates under existing law. The Senate Report accompanying S. 1613 states, at 9, that "not all appointees have evidenced the same high quality." Even the Justice Department "recognizes that at present there is an unevenness in magistrate quality." The bills' provisions for upgrading the quality and competence of magistrates do not go far enough to ensure consistent high quality among the federal magistracy.

Apart from the dubious wisdom of relegating petty offense cases to magistrates' courts and thereby ignoring the demonstrable need of some petty offenders for the unique services of Article III courts, this provision of the bill raises serious constitutional questions. The Constitution vests the judicial power of the United States in Article III judges, i.e., those possessing life tenure and undiminishable salaries. While "neither [the Supreme] Court nor Congress has read the Constitution as requiring . every criminal prosecution for violating an Act of Congress to be tried in an Article III court before a judge enjoying lifetime tenure and protection against salary reduction," exceptions to the general principle that federal criminal laws must be enforced by Article III courts have been upheld only when required or allowed by another express provision of the Constitution. It is at least doubtful, then, whether Congress may, consistent with Article III, require petty offenders to be tried in non-Article III courts.

There is a potential equal protection problem as well, that being whether petty offenders may be denied the benefit of judges made independent by life tenure when that benefit inures to all non-petty offenders tried within the same jurisdiction.

Under existing law a person charged with a petty offense may not be tried before a magistrate unless s/he signs a written consent and specifically waives a trial before a district court judge. 18 U.S.C. § 3401(b).

5 Memorandum in Support of the Judicial Access Act of 1977, accompanying referral of bill to the Office of Management and Budget, at 2.

e Palmore v. United States, 411 U.S. 389, 407 (1973).

7 The Supremacy Clause required the holding in Testa v. Katt, 330 U.S. 386 (1947), that federal penal laws under the Emergency Price Control Act could be enforced in state courts. The other exceptions have been allowed "to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment." Palmore, supra, at 408. Thus, the Article I power to "exercise exclusive jurisdiction in all cases whatsoever over" the District of Columbia has been held to authorize the establishment of non-Article III criminal court in the District of Columbia. Palmore v. United States, supra. The Article IV congressional power to "make all needful rules and regulations respecting the territory or other property belonging to the United States" has justified the establishment of non-Article III courts in the territories, American Insurance v. Canter, 7 LEd 242 (1828); in unincorporated districts outside the mainland, Downes v. Bidwell, 182 U.S. 244 (1901); and in concessions from foreign countries, In re Ross, 140 U.S. 453 (1891). Finally, Article I's "rules for the government and regulation of the land and naval forces" have justified nonArticle III tribunals for courts-martial, Dynes v. Hoover, 15 L.Ed 838 (1857).

Chief Justice Burger, dissenting in Wingo v. Wedding, 418 U.S. 461, 484 (1974), seems to assume the delegation of ultimate decisionmaking power to a magistrate would be unconstitutional. Discussing the legislative history surrounding the Federal Magistrates Act, he noted, "[T]here was apprehension that the power of authorization granted to district courts might lead to a rule permitting magistrates to exercise ultimate decision-making power reserved exclusively to Article III judges."