of submitting this supplement to the material which has already been supplied to you and all of the members of this distinguished Subcommittee.

STATEMENT OF PURPOSE

The purpose of the United States Court Reporters Association (USCRA) in recommending the adoption of these amendments to S. 1613 is to insure that Title 28 U.S.C. § 636 (b) and (c) proceedings shall be reported by reporters possessing all of the qualifications and meeting all of the standards of Title 28 U.S.C. § 753 reporters. Reporters so appointed shall be in such numbers as determined by the Judicial Conference of the United States.

Further, to insure that the services of such reporters are utilized to the fullest extent, the amendments would permit their transfer on a temporary basis anywhere within the judicial circuit of their appointment, and would permit the district court to use such reporters generally when their services are not required by the magistrates.

The amendments also provide the magistrates in Title 18 U.S.C. § 3401 (e) proceedings the option of using suitable sound recording equipment or other suitable means, or reporters appointed under § 636 of Title 28 U.S.C. in order to provide the reporting method in those proceedings which will best serve the interests of justice.

STATEMENT OF JUSTIFICATION FOR THE AMENDMENTS

Representatives of USCRA attended all of the hearings held by the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice on this bill.

All of the witnesses who addressed the subject of court reporting services for magistrates agreed, either directly or by implication, that an adequate record of proceedings before magistrates was essential.

However, objections to the USCRA recommendations were raised by the Department of Justice and by the Judicial Conference.

We address ourselves first to the objections voiced by the Department of Justice". to the placing of any mandatory language in the bill . . ." with regard to the provision of court reporters specifically for magistrates on the ground that: "Adequate statutory authorization, 28 U.S.C., § 753 (g), exists to allow the supplementation of existing court reporter services, where needed on a case-by-case basis."

The Department of Justice misinterprets the purpose of § 753 (g), attached hereto, and the practical application of its provisions.

§ 753 (g) authorizes the Director of the Administrative Office to enter into contracts for the providing of court reporters to meet temporary demands and needs of the district courts.

The procedures involved in first securing advice from the chief judge of the district court, then the determination of the judicial council of the circuit that the current number of reporters is insufficient, is so time-consuming as to render § 753 (g) useless as an effective tool on a "case-by-case" basis, as the Department suggests.

The Judicial Conference, however, has raised a broader objection to USCRA's recommendations by stating to USCRA that "28, U.S.C. § 753 is entirely sufficient to provide whatever short-range and long-range needs there may be for additional services."

While USCRA does not concede that Congress in 1944 ever contemplated providing court reporting services for magistrates under the provisions of 28 U.S.C., § 753 (as set forth more fully in USCRA's original submission to this Subcommittee), the fact of the matter is that, if such were the case, the Judicial Conference, by virtue of established custom and practice, has refused, and thus failed, to exercise the statutory authority, which they assert, on almost every occasion when district courts have petitioned for additional reporting services. It would be illogical, therefore, to believe that the statutory authority asserted by the Judicial Conference will be exercised in a proper and timely manner to provide proper reporting services for magistrates.

The Judicial Conference has repeatedly stated that additional official court reporters will be provided to district courts as the need is demonstrated, without setting forth criteria for determining such need.

USCRA suggests that any additional reporters provided to the district courts would be immediately utilized by those courts for much-needed reporting services in those district courts, and that the magistrates would continue to be required to use inadequate sound recording devices, non-responsible, unqualified contract reporters, or continue to beg and borrow an official district court reporter on an "ad hoc" basis.

USCRA, therefore, is obligated to conclude that the granting of statutory authority is an act of futility unless it is properly and consistently applied.

We are of the firm opinion that the Judicial Conference has not properly and consistently applied the statutory authority which it asserts it has.

And we are of the further opinion that the statutory authority will not be properly and consistently applied by the Judicial Conference unless and until the Congress directs that it shall be by including appropriate language in S. 1613.

USCRA wants to make it absolutely clear that it is not recommending one reporter for each magistrate. To do so would be irrespsonible and wasteful of the taxpayers' money.

However, USCRA does believe that all litigants, whether rich or poor, when appearing before a district court judge or a magistrate, should be afforded due process in the form of an adequate, accurate, competent record of such proceedings for whatever purpose is proper under the law.

The Hon. Henry J. Friendly, testifying before this Subcommittee on September 29, 1977, said: "Being a federal judge today thus is an altogether different and infinitely more demanding business than when I went on the bench 18 years ago."

By the same token, reporting proceedings before a federal judge, and by extension, before a magistrate under § 636 (b) and (c), is an altogether different and infinitely more demanding business than it was in 1944 when Congress enac.ed $753 of Title 28, U.S.C., the Court Reporters Act. Obviously, only highly skilled reporters should be permitted to report and transcribe such proceedings, and not some unknown, possibly unqualified contract reporter, or some altogether unreliable recording device.

We would like to stress to the Subcommittee the importance of retaining the word "shall" rather than the substitution of the word "may" in the first paragraph of the amendments. Unless the word "shall" is retained, the amendments will again be a futile granting of statutory authority which USCRA believes will never be exercised by the Judicial Conference.

We submit that the recommended amendments to S. 1613, which are here attached, are the best and only realistic means of insuring that the rights of all litigants will be protected insofar as providing adequate, accurate and competent transcripts, when required, in magistrate proceedings.

We respectfully strongly urge this Subcommittee to incorporate the court reporting amendments into S. 1613.

SEPTEMBER 29, 1977.

AMENDMENTS TO S. 1613

SEC. 2. §636 of Title 28, United States Code is further amended by adding at the end of subsection (f) the following new subsection:

(g) Proceedings before United States Magistrates under subsections (b) and (c) of this section

(1) had in open court unless the parties with the approval of the magistrate shall agree specifically to the contrary; and

(2) such other proceedings as the court may direct or as may be required by rule or order of court

shall be taken down by court reporters who shall be appointed for the purpose of reporting proceedings conducted under this section by each district court under the provisions of §753 (a) of Title 28, U.S.C.

Reporters so appointed, with the approval of the appointing court, may be transferred on a temporary basis to any other district court within their judicial circuit for reporting proceedings under this section, or for use generally by the district court.

All of the provisions of § 753, Title 28 U.S.C. except as modified herein shall be applicable to such reporters. SEC. 5. § 3401 (e) of Title 18 U.S.C. is further amended by changing the first sentence to read: "Proceedings before United States Magistrates under this section shall be taken down by court reporters

appointed under § 636 of Title 28 U.S.C. or recorded by suitable sound recording equipment or other suitable means."

[Submitted by the United States Court Reporters Association.]

(g) If, upon the advice of the chief judge of any district court within the circuit, the judicial council of any circuit determines that the number of court reporters provided such district court pursuant to subsection (a) of this section is insufficient to meet temporary demands and needs and that the services of additional court reporters for such district court should be provided the judges of such district court (including the senior judges thereof when such senior judges are performing substantial judicial services for such court) on a contract basis, rather than by appointment of court reporters as otherwise provided in this section, and such judicial council notifies the Director of the Administrative Office, in writing, of such determination, the Director of the Administrative Office is authorized to and shall contract, without regard to section 3709 of he Revised Statutes of the United States, as amended (41 U.S.C. 5), with any suitable person, firm, association, or corporation for the providing of court reporters to serve such district court under such terms and conditions as the Director of the Administrative Office finds, after consultation with the chief judge of the district court, will best serve the needs of such district court.

As amended June 2, 1970, Pub. L. 91-272, § 14, 84 Stat. 298; Dec. 11, 1970, Pub. L. 91-545, 84 Stat. 1412.

References in Text. The Criminal Justice Act (18 U.S.C. 3006A), referred to in subsec. (f), is classified to section 3006A of Title 18, Crimes and Criminal Procedure.

Section 3709 of the Revised Statutes of the United States, as amended (41 U.S.C. 5), referred to in subsec. (g), is set out as section 5 of Title 41, Public Contracts.

1970 Amendments. Subsec. (e). Pub. L. 91-272, § 14(1), struck out provisions limiting to the $3,000 to $7,630 range the annual salary paid to reporters.

Subsec. (f). Pub. L. 91-545 restricted authorization of United States to pay fees for transcripts furnished in criminal proceedings to transcripts furnished to persons proceeding under the Criminal Justice Act.

Subsec. (g). Pub. L. 91-272, § 14(2), added subsec. (g).

Legislative History. For legislative history and purpose of Pub. L. 91-272, see 1970 U.S. Code Cong. and Adm. News, p. 3221. See, also, Pub. L. 91-545, 1970 U.S. Code Cong. and Adm. News. p. 4894.

THE CHICAGO COUNCIL OF LAWYERS,

September 28, 1977.

Re S. 1613, H.R. 7493, D.R. 7811 and H.R. 7812, "The Magistrates Act of 1977". Hon. ROBERT W. KASTEN MEIER,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Committee on the Judiciary, U.S. House of Representatives, Rayburn House Office Building, Washington, D.C.

DEAR CONGRESSMAN KASTEN MEIER: The Chicago Council of Lawyers, a bar association representing approximately 1,200 lawyers in the city of Chicago, wishes to express its opposition to S. 1613, H.R. 7493, H.R. 7811 and H.R. 7812, the proposed "Magistrates Act of 1977."

The stated purpose of these bills is: "[T]o improve access to the federal courts by enlarging the civil and criminal jurisdiction of United States Magistrates, and for other purposes." While we agree that improved access to federal courts is a highly desirable goal, we do not believe that this serious problem is satisfactorily resolved through expansion of the jurisdiction of magistrates.

The proposed expansion of the magistrates' jurisdiction would clearly create a second and inferior level of federal judiciary. By this proposed legislation the actual adjudication of civil cases and criminal misdemeanor charges would be exercised by magistrates who do not undergo the elaborate selection process now deemed necessary for federal judges.

We particularly call the subcommittee's attention to the results of the Chicago Council of Lawyers' Federal Judicial Survey, published in 1976, a copy of which is enclosed. That survey sampled the opinion of lawyers concerning the performance of trial judges, magistrates and bankruptcy judges in the United States District Court in Chicago. Among the questions asked was "Overall, is he/she worthy of advancement to a higher judicial office?" None of the three magistrates of the United States District Court in Chicago was thought worthy of advancement to a higher judicial post by a majority of respondents to the survey. In fact, one magistrate was thought worthy of advancement by only 22.2% of the respondents. (Federal Judicial Survey, at p. 33.)

This survey indicates that the lawyers of Chicago do not feel that magistrates presently sitting are qualified to handle the duties of a federal trial judge. The pending legislation, S. 1613, H.R. 7493, H.R. 7811 and H.R. 7812, is totally inconsistent with the Chicago Council of Lawyers' consistent position that federal judges should be of the highest quality.

This problem is not solved by requiring consent before a matter can be referred to a magistrate for judgment. Pressures, subtle or unsubtle, could be brought to bear on a reluctant litigant. In this way the bills could defeat their own purpose: The pressures to consent to a quicker determination by a magistrate rather than face delay in waiting for an Article III judge would be greatest on litigants with limited financial resources. Thus, instead of "improv [ing] access to the courts for all groups, especially the less advantaged" (Senate Report on S. 1613, at p. 4), the result of the bills could be to force such disadvantaged to consent to judgment by a second class of federal judiciary, the magistrates.

As a stopgap measure to relieve the press of caseload in the federal courts, the Magistrate Act tends to divert attention from the pressing need for additional federal judges, which would increase access to the federal courts without sacrificing quality, and from the serious questions concerning the scope of federal jurisdiction.

Therefore, the Chicago Council of Lawyers urges the subcommittee to recommend against passage of S. 1613, H.R. 7493, H.R. 7811 and H.R. 7812.

Sincerely yours,

ELAINE E. BUCKLO, President.

Association of the Bar of the City of New York, Federal Bar Council
THE MAGISTRATE SYSTEM IN THE SOUTHERN DISTRICT OF NEW YORK

I. INTRODUCTION

In 1968 Congress passed the Federal Magistrates Act authorizing the appointment of a lower tier of judicial officers to assist the United States district judges in handling their ever-burgeoning dockets. The Act, which was only fully implemented in 1971, replaced the system of United States Commissioners and not only transferred the criminal responsibilities of the old commissioners to the magistrates but also expanded their judicial duties in the criminal area. Moreover, the Magistrates Act authorized these newly-created judicial officers to undertake judicial tasks in civil cases. For over five years, the magistrates functioned under a broadly drafted grant of authority, 28 U.S.C. § 636(b), pursuant to which district courts were empowered to delegate additional duties to magistrates by promulgating local court rules. These local rules, which were also often generally drafted, permitted rather than mandated district judges to refer matters to the magistrates. The result has been a highly individualized and uneven use of the magistrates throughout the United States and within the district courts themselves.

In the course of its 1975 Report on the Individual Assignment System in the Southern District of New York, the Committee on Federal Courts of the Association of the Bar of the City of New York noted the lack of uniformity of practice with regard to the use of magistrates in this district and decided to undertake

a study of the way in which magistrates were being utilized in the Southern District of New York.' It later appeared that the Federal Bar Council was engaging in a similar project, and this year the two Committees combined their efforts to undertake a serious and comprehensive study of the operation of the magistrates.

In October 1976, during the course of this evaluation, an amendment to the Magistrates Act was enacted, further defining and expanding the jurisdiction of the federal magistrates. This new legislation demonstrated a commitment to continued experimentation toward achieving the most effective use of the magistrates, but it still left the utilization of a magistrate to the individual judge.

Much of the Federal Courts Committee's study was undertaken prior to the October 1976 amendment, but the new legislation for the most part merely clarified the existing practice under the 1968 Magistrates Act. Where particularly relevant, we have noted the impact of the new amendment.

More legislation in the area of magistrate's jurisdiction is inevitable. Indeed, on July 22, 1977 another bill to enlarge the civil and criminal jurisdiction of the magistrates passed the Senate by unanimous vote, and will be considered by the House early in the fall. Our view of those proposals is set forth in Section VIII of this report.

II. METHODOLOGY

The Federal Courts Committee undertook its evaluation of the magistrate system in the Southern District of New York with a two-person subcommittee. As indicated, this subcommittee joined efforts with a two-person subcommittee of the Federal Bar Council, which was pursuing a similar investigation.

This joint subcommittee of the two organizations proceeded on a variety of levels. Questionnaires were devised (see Appendices D and E) as a format for interviewing a number of magistrates' and judges in the Southern District. The magistrates and judges were interviewed by one or more members of the joint subcommittee and were questioned about the tasks which they performed. Their views about the effectiveness of the operation of the magistrate system and their suggestions for improvements were also solicited.

Statistical information was gathered regarding the number and kinds of matters undertaken by the magistrates in the Southern District and was compared with comparable nationwide statistics. Additionally, the caseload of the Southern District was analyzed to determine the impact of the magistrates over the past few years. A questionnaire (see Appendix F) was sent out to the members of the Federal Bar Council, and 225 responses were received. These lawyers were questioned about the frequency of their appearances before magistrates and were asked to comment on the general desirability and effectiveness of the magistrate system.

After the relevant data was accumulated, the subcommittees discussed with their respective Committees the various comments and suggestions which had emanated from the magistrates, the judges, and the practicing bar, and then formulated proposals for consideration. The Committees also considered the information they acquired during their evaluation to assess the desirability of the pending legislation just recently passed by the Senate.

III. QUESTIONS FOR CONSIDERATION

1. Should magistrates continue to be used in the federal system?

Unmanageable dockets and caseloads in the federal courts called for some kind of assistance to the federal district courts, and in 1968 that assistance came in the form of the Federal Magistrates Act. The premise that the federal courts are overburdened is unassailable. But the obvious alternative which presents itself in any discussion about the viability of this system of nonArticle III judicial officers is the appointment of more district judges to handle the overflow of work. The creation of the magistrate system was intended "both to update and make more effective a system that has not been altered basically for over a century, and to cull from the ever-growing workload of the U.S.

1 At the time this study was undertaken, it was perceived that the magistrates in the Eastern District were handling primarily criminal matters. It was decided to limit this report to a study of the Southern District. There are presently six magistrates in the Southern District.

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