Magistrate, the local rule could provide that: "The Assignment Committee of this court may regulate the work-load and duties of the Magistrates or of any individual Magistrate.' 18 Statutory procedures are set out in the 1976 Magistrates Act for matters referred to magistrates for "recommendation," although some supplementation of those procedures by local rule is still desirable. No statutory procedures are set forth for non-dispositive matters determined by the magistrates, and here there is a substantial lack of uniformity. Before suggesting such rules, we considered whether magistrates' orders and findings should be in writing or whether the "English system" (where masters give their decisions orally and merely make a notation on the motion forms referred to them) should be adopted. We also considered the desirability of (a) requiring magistrates to give written decisions on particular matters, and (b) publishing magistrates' decisions to make them accessible to the bar. On balance we believe that in the pretrial area requiring formal written opinions is undesirable since such a requirement might impede the magistrates' informal and expeditious treatment of non-dispositive discovery and pretrial matters. We think, however, that the English method is inappropriate for our judicial system, and therefore we would recommend a local rule which requires a written order setting forth the conclusions of any determination made by the magistrate." Obviously, nothing would restrict the magistrate from writing a decision where such was appropriate or from setting forth his decision and the parties' objections in transcript form. Additionally, a short time limit for appealing such determinations by the magistrates is desirable. Such a rule could be coordinated with the statutory procedures set out in Section 636(b) (1) (c) of the Magistrates Act, which specifies the procedures for magistrates' recommendations on dispositive motions. Under those procedures the magistrate is directed to file his proposed findings and recommendations with the court and copies must be mailed to the parties. Within ten days after the recommendation has been received, any party may file written objections, and the judge makes a de novo determination of matters to which there is objection. We would thus propose the following local rule for nondispositive matters: "On matters referred to the magistrate for determination or decision, the magistrate shall issue a written order, setting forth his determination or decision of the matter referred, and it shall be docketed and made a part of the papers filed in this court in the appropriate pending case. Copies of the determination or decision shall be mailed to the parties. An appeal to the judge to whom the case is assigned may be taken by filing written notice within ten days of receipt of notice of the order appealed from. "On matters referred to the magistrate for recommendation, the magistrate shall file proposed findings and recommendations with the court. Copies of the findings and recommendation shall be mailed to the parties. Any objection to the findings and recommendations of the magistrate must be made in writing and filed with the court within ten days of receipt of the findings and recommendations. "In any matter referred to a magistrate under Federal Rule 53(b), the specific provisions of that rule apply where applicable." Finally, we think it would be helpful for individual judges to describe their practices with regard to magistrates and to list them in the special motion and calendar rules which are published in the "New York Law Journal." Eventually, it would be desirable if such rules were published in a handbook which would be available to the Bar. 4. Regularized procedures should be implemented to insure the continued selection of highly qualified magistrates If increased use of the magistrates is a fact of the federal judicial process, then obviously highly qualified personnel will be needed to fill the office of magistrate. This is particularly true if significant matters are referred more and more frequently to magistrates. Indeed, the pending legislation which envisions a role for the magistrate as adjudicator in his own right, establishes stricter qualifications and guidelines for appointment of the magistrates. (See Appendix C and discussion infra at 55–61). 18 This suggestion was first made by Judge Jack B. Weinstein of the Eastern District. 19 Magistrates have the power to determine non-dispositive pretrial matters. 99-158 O-78-27 Under the present system, the Southern District is fortunate in having attracted magistrates of high quality. The judges of the district courts, who appoint the magistrates, have reached out to local leaders of the Bar and deans of the major law schools in looking for qualified persons to fill the position of magistrate. We endorse these procedures and would suggest that other practices be considered," Specific approval by the Judiciary Committees of the Bar Associations, for example, should be required for any magistrate appointment, and ratings of existing magistrates should be maintained by these organizations. 5. Additional supporting personnel and facilities should be made available to assist the magistrates The increased role of the magistrates in the federal judicial process requires additional help in the form of court reporters, secretarial assistance, and perhaps even law clerks. Indeed, if the legislation pending before Congress is enacted, more courtroom facilities may be necessary to permit the magistrates to handle the jury and non-jury trials over which they will have jurisdiction. When this study was begun a number of magistrates observed that they would like to see court reporter services authorized for the magistrate. Most of the magistrates have found it possible to "borrow" the judge's reporter when necessary or to persuade the parties to utilize a reporter service. Recently, authorization for court reporter service for the magistrates has been delegated to the local district courts. " We urge that it be made available whenever necessary. 21 Law clerks are another "aide" that is available to district judges, and many of the magistrates have indicated that they would be assisted significantly if they could employ paid law school graduates as law clerks. Law students occasionally work with magistrates on a voluntary basis under some law-school clinical programs and the students are perceived as being extremely helpful to the magistrate. As the magistrates' duties expand and as they are called on to decide more complicated and difficult matters, more formal law clerk assistance would be desirable. Apparently obtaining space for the magistrates to conduct trials—both jury and non-jury-does not create a problem in the Southern District at present. It appears that courtroom space can be found when a magistrate needs facilities other than his own hearing rooms. Obviously, in calling for substantial assistance for the magistrates, one must bear in mind that at least one reason for using magistrates rather than adding more district judges is that the former account for less than half the cost of a district judge. The salary differential between the district judge and the magistrate is not that great but additional savings result because the magistrate's needs are not the same as those of the district judge. Therefore the additional expenses of creating a district judgeship should not be incurred. This is not meant to imply that magistrates are providing a cheaper form of justice. They have an important role to perform, which is to assist the district judge. Although it is not expected that all the attributes of listrict judgeships need attach to the magistrates, essential services ought to be provided to permit them to fill their continuing and important role in the administration of justice in the federal courts. VIII. PENDING LEGISLATION S. 1613 On July 22, 1977, shortly after the Committees' evaluation and initial draft report on the magistrate system in the Southern District had been completed, yet another bill to enlarge the civil and criminal jurisdiction of the magistrates was passed by the Senate, and is now before the House Committee on the Judiciary." (See Appendix C) It was thought desirable to add to this Report the details and assessment of this pending legislation. 22 1. Specific Provisions S. 1613 is consistent with the continuing expansion of magistrates' jurisdiction in that it specifies in both criminal and civil cases a limited trial jurisdiction 20 In the Eastern District of New York, an ad hoc Committee has reviewed applications and conducted interviews of potential magistrate appointees and has then made recommendations. 21 If the chief judge of the district court requests and if the circuit executive approves. additional court reporters will be made available to the district court for use in magistrates proceedings. 22 H.R. 7493 is set out in the first part of Appendix C. (It is the same as S. 1613 as introduced in the Senate.) A compromise bill was in fact passed by the Senate and S. 1613 as passed begins on p. 7 of Appendix C. which the magistrates can assume. In criminal cases, the bill gives trial jurisdiction to the magistrate in petty offense cases without regard to the consent of the defendant. (Under present law, the defendant's consent is necessary before a petty offense can be heard by a magistrate.) The new bill also enlarges the magistrates' jurisdiction to include all other misdemeanors if the defendant consents. The magistrate is also empowered to preside over jury trials, and thus a defendant who consents to a trial before a magistrate need not forfeit his right to a jury trial. A provision of the bill does permit the Government to remove a misdemeanor prosecution from a magistrate to a district judge upon a petition based on a showing of good cause. (See S. 1613 Section 7(d), amending 18 U.S.C. § 3401 (f), set out in Appendix C) It is not clear just what impact these provisions will have in the Southern District. As noted earlier, magistrates have not been handling many criminal matters and do not exercise much of the minor and petty offense jurisdiction they already have. It may be, of course, that the increased jurisdiction for the magistrates will encompass more cases filed in the Southern District. Moreover, defendants may agree more often to be tried before the magistrate if they do not have to forfeit their right to a jury trial. It is the view of our Committees that so long as the expansion of magistrate jurisdiction is subject to consent of the defendant (in other than petty offense cases), it is an appropriate legislative step to take at this time. In civil cases, the magistrate, under proposed Section 636 (c) (1), is explicitly given jurisdiction to "conduct any or all proceedings in any jury or non-jury civil matter and order the entry of judgment in the case." Our interviews with the judges and magistrates in the Southern District indicate that, even under the existing statute, several judges have referred cases to the magistrates for trial by designating the magistrates as special masters pursuant to Rule 53 of the Federal Rules of Civil Procedure. This practice, which is by no means confined to the Southern District, has been judicially approved, although not yet examined by the Supreme Court. See De Costa v. Columbia Broadcasting System, Inc., 520 F. 2d 499 (1st Cir. 1975), cert. denied, 423 U.S. 1073 (1976). The Committee believe that legislative clarification of this practice through S. 1613 is highly desirable, since it will encourage judges to make such references. Most of the judges in the Southern District, who use magistrates for other purposes, do not refer cases to them for trial. Additionally, the authorization for the magistrates to hear jury trials may encourage parties to consent in that they can get a quicker and less expensive trial without forfeiting their right to a jury. 23 Some concern has been expressed that parties will be coerced to consent to a trial before a magistrate for fear of reprisals by the magistrate or the district judge. Section 636 (c)(4) of the new legislation attempts to assuage these concerns by specifically providing that "the court shall not attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate." Such precatory language should be helpful especially if it is coupled with a practice of having a routine notation go from clerk to counsel as to whether a party consents to a hearing before the magistrate, without disclosing the identity of those who consent and those who withhold consent.24 2. Appeals from Magistrates' Decisions The most controversial aspect of the proposed legislation is the provision for appeals from decisions of the magistrates when they hear civil cases with the consent of the parties. The proposal makes the magistrate's decision a final one with a right of appeal on the record to the district court. Appeal from the district court to the Court of Appeals is apparently discretionary “upon petition for leave to appeal," ,"25 and review is limited to questions of law. An alternative structure for review of magistrates' decisions is available if, at the time of the consensual reference, the parties agree that appeals from the magistrate may be taken directly from the magistrate to the appropriate Court of Appeals. Under either appeal route, the parties may later seek review in the Supreme Court. 23 See also "Hearings Before the Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary," 95th Cong. 1st Sess. 188, 203-204 (Statements of Professor Linda Silberman and Mr. John P. Frank). 24 This suggestion was made by the First Circuit Court of Appeals in DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499, 507 (1st Cir. 1975), cert. denied 423 U.S. 1073 (1976). 25 The statutory language states that the "appropriate United States court of appeals may review any final judgment of the district court entered pursuant to this paragraph, upon petition for leave to appeal by a party stating specific objections to the judgment.' These dual provisions for alternate routes of appeal from magistrates' decisions represent an attempt to harmonize several competing policies. On the one hand, there was a desire to prevent a fourth-tier of decisionmaking in cases which are referred to a magistrate for trial. Under existing practice, when a case is referred to a magistrate with consent of the parties, the district judge first reviews the decision, and then the usual appeal process-to the Court of Appeals and if necessary to the Supreme Court-can be invoked. There was a strong feeling that the result of sending a case to a magistrate was to add another layer of review. The decision to provide for review as of right to the district court, to make Court of Appeals review discretionary, and to limit Court of Appeals review to questions of law was an attempt to make possible an inexpensive and expeditious review procedure and prevent a proliferation of appeals. On the other hand, there was a strong belief that review in the federal Courts of Appeals is a valuable right in the federal judicial system. It was felt that if the choice of trial before a magistrate carried with it the automatic loss of an unfettered right of appeal to the Court of Appeals it would discourage litigants from consenting to trials before the magistrates. Although appeal directly from the magistrate to the Court of Appeals in all cases appeared to be a viable alternative, there was considerable speculation that Court of Appeals review in all cases could be expensive and time-consuming. The Senate bill balances the considerations by providing for district court review and discretionary appellate court review in the usual case, and if the parties consent, for direct review of the magistrate's decision by the Court of Appeals. Our committees are strongly opposed to any provision which eliminates review as of right by the Court of Appeals. We believe such a provision is inconsistent with the primary objective of the proposed statute, since eliminating an appeal as of right to the Circuit Court can be expected to discourage litigants from consenting to trials before the magistrates. Under the proposed statute, direct Court of Appeals review from the magistrates' decision is available only if both sides agree to such an appellate route. The usual situation offers district court review with a right to petition for appeal to the Court of Appeals on questions of law only. When the litigants cannot agree or have different perspectives about where an appeal shall lie, it is likely to lead the parties to withhold consent from trials before magistrates altogether. Our committees would prefer a provision in the new statute which mandated direct review of magistrates' decisions by the Court of Appeals, thereby treating the magistrate's decision as if it were indeed the decision of the district court. 26 Alternatively, the present practice could be continued whereby the district judge first reviews the case from the magistrate, and then the ordinary appellate processes are invoked. This approach has the drawback of an added layer of review being injected into the decisionmaking process, but it has the attraction of allowing a first quick, easy, and inexpensive level of appeal. Hopefully, an affirmation of the magistrate's decision by the district judge would discourage the taking of additional appeals. In any event, we believe it to be preferable to the loss of appeal by right in the Courts of Appeals. The appellate process as outlined in the proposed bill has other deficiencies. Some district courts may not choose to give magistrates authority to dispose of cases, or may assign only certain categories of cases for trial by magistrates. In such cases, the current appellate structure would be in operation. In those jurisdictions which do designate magistrates to exercise trial jurisdiction, a different appellate process limiting access to the Court of Appeals would be called for, if the parties agreed to have their case heard before a magistrate. Finally, if the parties further agreed, a third appellate review scheme would become operable whereby litigants can take their case directly from the magistrate to the Court of Appeals. A litigant's opportunity for review in the federal courts would depend upon the particular district in which the case arose, upon a decision to waive a right to trial before a district judge, and upon the ability to reach an accord with an adversary. The proposal introduces confusion and uncertainty into the appellate process, and we oppose it as inadequate and undesirable." 26 Rules could be promulgated to make the appeal process shorter and less extensive than the ordinary appeal to the Court of Appeals. 27 It should be noted that the Judicial Conference recently passed a resolution requesting that Congress refrain from enacting this new legislation at the present time for constitutional and policy reasons. 3. Appointment and Selection of Magistrates S. 1613 also provides for changes in the appointment and selection of magistrates. The qualifications of magistrates has been upgraded to require that a magistrate be a member for five years of one or more bars of the highest state court, and the Judicial Conference has been instructed to promulgate additional standards. Although the appointment of the magistrates will remain with the district judges, circuit councils are now required to certify that an appointee is competent to be a full-time magistrate. The Committees approve the new provisions regarding appointments and qualifications of the magistrates. In an era where the process for appointing judges at all levels is undergoing serious review, we think these provisions are entirely appropriate. However, we would suggest that our general suggestions regarding the submission of names of all potential appointees to review committees of the variouss bar associations also be adopted. IX. CONCLUSION This study of the activities of the Southern District magistrates conducted by our two committees has sought to provide a much-needed assessment of the present and future utilization of magistrates and has indicated a number of ways in which the magistrate system as a whole can be improved. As we have previously stated, we believe that the use of magistrates is highly effective and should be continued. The nature of litigation in the Southern District of New York has made the magistrate an invaluable aid in assisting with pretrial discovery. Lawyers, judges, and the members of the practicing bar concur in this assessment. Alternatives exist for using magistrates, including trials before magistrates in appropriate cases, and the new legislation pending before Congress would enhance the utilization of magistrates in this fashion. However, the discovery stage in civil litigation remains a potential bottleneck and until other needed changes take place in curbing its abuses, the magistrates are an essential instrument in supervising and controlling the discovery stage of litigation. Therefore, our report has urged the continuation of a primary role for magistrates in pretrial discovery. The magistrate system, we believe, is desperately in need of formalized practices for proceeding before a magistrate and for review of their decisions. Our report has proposed several rules for taking objections to determinations and recommendations of magistrates and we have urged that judges' individual practices with regard to magistrates be made known to lawyers. Finally, we have suggested means of ensuring the selection of competent and qualified individuals for the position of magistrate. Although we have criticized specific aspects of the pending legislation before Congress specifically the provisions for appeals from magistrates' decisions— we believe that the magistrate system is now an important attribute of the federal judicial system. We add our vote of confidence to the federal judiciary's commitment to the use of magistrates and hope that this report will be only the first of many to study, evaluate, criticize, and help define the appropriate role of the magistrates in the federal court system. NEW YORK, N.Y., November, 1977. COMMITTEE ON FEDERAL COURTS OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK Marvin V. Ausubel Henry A. Brachtl Richard B. Dannenberg Joseph T. McLaughlin Linda J. Silberman * Sandish F. Medina, Jr.* Subcommittee members. Bernard W. Nussbaum, Chairman Burt Neuborne |