Appropriation: Travel and miscellaneous expenses, U.S. courts: Travel, judge and staff.. Library: Initial cost (Nonrecurring expense). Annual cost (second and succeeding years) Central office equipment (Nonrecurring expense). Miscellaneous expenses (communications, supplies, etc.)‒‒‒‒ Total (initial cost)-. Total (annual recurring cost) __ Appropriation: Space and facilities, thee judiciary: Replacement and rehabilitation of furniture and furnishings (2,000) Total (initial cost). 25,000 Total (annual recurring cost). 2,000 Appropriation: Salaries and expenses, Administrative Office of the Salaries and expenses of clerical staff (unit cost based on a ratio of one clerical position to every four new judgeships) – 5,000 Grand Totals: Initial (first year) cost 308,000 255, 000 Annual recurring cost--. Note: The creation of additional district judgeship also will result in additional petit jury costs of approximately $30,000 per annum. Prepared October 20, 1977. APPENDIX VIII-LETTERS WISCONSIN SHORTHAND REPORTERS ASSOCIATION, Re Proposed Amendments to S. 1613. DEAR REPRESENTATIVE KASTEN MEIER: As a constituent residing in Sun Prairie, Wisconsin, an official court reporter in the state courts of Wisconsin (Dane County), a member of the Wisconsin Shorthand Reporters Association and of the National Shorthand Reporters Association, I am writing to you to voice my support of the United States Court Reporters Association in urging passage of the above proposed amendments. The Magistrates Act of 1977, S. 1613, was passed by the Senate on July 22, 1977, and hearings will apparently be held by the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice in mid-September. Briefly, S. 1613 does not make provision for adequate court reporting services for the magistrates, and, under the 1976 amendment to the Act, the magistrates are conducting various types of evidentiary hearings. The Judicial Conference, under the Court Reporters Act, Sec. 753, Title 28, USC, has the power to appoint additional official court reporters for the magistrates but has refused to do so. The Administrative Office strongly urged their Committee on Court Administration to appoint additional court reporters. Instead, the Administrative Office has been directed to inform the magistrates that they should use sound recording equipment whenever possible rather than a live court reporter or, whenever absolutely necessary, to use the services of contract reporters. In 1970, Congress, when it passed S. 952, defeated an amendment sponsored by the Administrative Office which would have permitted electronic recordings instead of live reporters in the district courts. What they could not accomplish through direct legislation they are now trying to accomplish indirectly. Apparently, a great majority of the magistrates recently surveyed by USCRA find the use of tape recorders unsatisfactory, which comes as no surprise to anyone who has ever been even remotely concerned with court reporting. Experiments all over the country, for years, have proven again and again that electronic recording, even in its most sophisticated form, is an inadequate substitute for a live, competent court reporter. It is one profession where the human element is essential to prevent transcripts which contain a multitude of parenthetical inserts reading "unintelligible" or "inaudible." Either the Wisconsin Shorthand Reporters Association or the National Shorthand Reporters Association, as well as the United States Court Reporters Association, I'm sure, could provide reams of material supporting my contentions. The use of contract reporters is one step better, but, with the Administrative Office directing that only the lowest available rate in the city be paid, the least qualified would be hired, and the district courts will have no control over the qualification standards of the contract reporters. As in any other profession, "there are court reporters and there are court reporters." The Judicial Conference apparently has authority to appoint qualified reporters but refuses to do so. I support the United States Court Reporters Association in their endeavors to obtain passage of the Proposed Amendments to S. 1613, and I urge you to do whatever you see fit to accomplish the same. Passage would be a congressional directive that the Judicial Conference must appoint live official reporters for the magistrates for the successful operation of the Magistrates Act. Please excuse the length of this letter, but I view this as a very serious matter. I realize that my remarks sound self-serving, but, as a court reporter of 11 years, I just know that electronic recording of important hearings and litigation is a mistake. It just doesn't work! Sincerely, DONALD P. MANTHEY. LEGAL AID BUREAU, INC., Baltimore, Md., September 16, 1977. Hon. ROBERT W. KASTEN MEIER, DEAR CHAIRMAN KASTEN MEIER: I thank you for your letter of September 13. 1977 and appreciate the opportunity set out in that letter to continue the input to the subcommittee and its staff concerning the issues of the state of the judiciary and access to justice. I intend to submit written comments to you by October 1, concerning the pending legislation with a special focus on the magistrates bill (S. 1613). As you may know, I on behalf of a group of legal services attorneys testified on S. 1613 before the Senate subcommittee and opposed it. We feel that the final version of S. 1613 as passed by the Senate does not substantially improve the bill. We had hoped to have an opportunity to orally express our views before your subcommittee, but we understand that the subcommittee's limited time will not allow it to hear from witnesses not already scheduled for the week of September 19. We fully appreciate the constraints on the subcommittee's time but we are confident that our written views will receive full attention from the subcommittee. However, if additional time should become available to hear more witnesses we would like to present our views in person. Since the subcommittee will hear from a representative of the Legal Services Corporation next week who, as I understand it, will support S. 1613 as passed by the Senate. I feel that the subcommittee should be aware that the views expressed by the staff of the Corporation in favor of S. 1613 are not entirely consistent with the views of the greater majority of those field program attorneys who have examined S. 1613 and expressed an opinion about it. This unfortunate divergence of views between the LSC staff and substantial parts of the field programs need not be overemphasized, however, it is a factor that the subcommittee may wish to consider in evaluating the support of S. 1613 by the Corporation's representative. Sincerely, Re Federal Magistrates Act of 1977. DENNIS M. SWEENEY. LEGAL AID BUREAU, INC., Baltimore, Md., September 30, 1977. Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR CHAIRMAN KASTEN MEIER: In response to your letter of September 13, 1977, I accept the generous offer expressed therein to provide comment on the various bills before your Subcommittee. As you may know, I testified before the Senate Subcommittee on Improvements in Judicial Machinery concerning the Magistrates Act of 1977 (S. 1612 and S. 1613). My testimony at that time was on behalf of a group of Legal Services attorneys and we opposed S. 1613, the main bill then under consideration. I have not had time to solicit the support of my colleagues who joined in the Senate testimony in connection with the views expressed in this letter, but I feel this letter is consistent with the views expressed earlier by that group. I am, however, authorized to state that these views are also those of Edward King, the managing attorney of the National Senior Citizens' Law Center in Washington, D.C. We still oppose S. 1613 although some modifications of the bill by the Senate have changed portions of it. It's still an ill-advised piece of legislation. Its highly speculative promise of reducing delay and congestion is outweighed by its potential for damage to the traditional federal court structure. I will not repeat my testimony given earlier before the Senate Subcommittee. See, Senate Hearings on the Federal Magistrates Act of 1977, p. 209-214. That statement contains our main argument and I will instead in this letter highlight why S. 1613 continues to be unwise legislation for Congress to adopt at this time. Unarguably, the weight of impressions up to this point has been that the bill is constitutional. However, even the most informed proponent of the constitutionality of the expansion of magistrate jurisdiction has acknowledged that "the validity of the exercise of federal judicial power by a non-Article III officer remains an open question." Silberman, Masters and Magistrates, Part II: The American Analogue, 50 N.Y.U.L. Rev. 1297, 1305 (1975). Even if the bill is constitutional it at a minimum raises serious questions about the role Article III judges should play and the attributes we as a society wish to see in individuals exercising judicial power over important matters. It is these issues which I will address. This legislation may well be an unheralded watershed in the role of the magistrate and indeed in the whole role of the federal judiciary in this country. This legislation marks a rather clear break from the past in the use of magistrates and deserves careful scrutiny from persons concerned about the quality of our federal court system. As the most recent Senate report acknowledges, the Federal Magistrates Act enacted in 1968 "clearly intended that the magistrate should be a judicial officer whose purpose was to assist the district judge to the end that the judge could have more time to preside at the trial of cases." Senate Report No. 95-344, p. 3. Under the Act, the magistrate was clearly an assistant to the district court judges performing valuable, but clearly subservient duties with the ultimate review of factual adjudications and the resolution of questions of law clearly the final responsibility of district judges exercising judicial power under Article III of the Constitution. The Magistrates Act of 1977 shifts the role of the magistrate from one of "assistant" to "final adjudicator". If this shift is to take place, it should be accomplished with full understanding that major matters of public policy are being decided and that this legislation is more than minor tinkering with an established system. The shift of power should be examined in three respects: (1) the role played by the magistrate, (2) the selection process, and (3) the independence of the magistrate. A. ROLE OF THE MAGISTRATE · As indicated above, the Federal Magistrates Act of 1968 cast the federal magistrate in the role of an assistant to the Federal District Court Judge. Apart from the magistrate's unique power to adjudicate petty offenses with the consent of the parties, the other duties assigned to the magistrates were clearly ones aiding district court judges in the exercise of their jurisdiction. As the House Report noted magistrates were to be "a lower tier of judicial officers." 1968 U.S. Code Congressional and Administrative News, p. 4255. The Senate Report on the current bill, confirms this history. The report finds that the original Act created "judicial officers who would perform various judicial duties under the supervision of the district courts in order to assist the judges of these courts ." Senate Report at p. 2. Is this bill then merely a further extension of the "assistants" concept of the Federal Magistrates Act or does it in fact represent a substantial change in the role of the federal magistrates? It seems clear that if the power in this bill is fully exercised that the role will in fact change from the magistrate being an "assistant" to that of the magistrate being a "judge." In addition to the expansion of the magistrate's criminal jurisdiction, the magistrate will now be able to try any civil case upon the consent of the parties. There is no limitation to nonjury cases. There is indeed no matter within the civil jurisdiction of the District Courts that a magistrate will not be able to hear. On the civil side, the role of the magistrate can be functionally the equivalent of the role of the U.S. District Court Judge if the court chooses to exercise the limits of the Act's powers. This shift not only has ramifications for the magistrate, but also for the Article III District Court Judge. If the Act is utilized to its fullest and magistrates are granted the expanded jurisdiction by the courts, then it is quite conceivable that many district court judges will spend the greater majority of their time presiding over criminal felony trials and hearing appeals from magistrates' judgments. I can not predict whether this is "good," "bad" or neutral, but it is a shift from the conceptual role we have now of the generalist trial level district court judge. B. SELECTION PROCESS District Court Judges are appointed under Article III of the Constitution and the appointment is made by the President with the advice and consent of the Senate. There is no need for reappointment since such judges enjoy lifetime tenure. In contrast to Article III judges, magistrates under the proposed bill will be appointed by the judges of the district courts under standards and procedures promulgated by the Judicial Conference with a certification from the Judicial Council of the Circuit. This appointment is for an eight-year term of office. After already investing eight years of his career, it can be expected that most magistrates will desire reappointment at the expiration of the initial term. The appointment of district court judges under Article III involved a purposeful blend of executive and legislative influence in picking members of Article III courts. This involvement is part of the necessary checks and balances theory underlying our Constitution and additionally, since executive and legislative members are popularly elected ensures that the selection of the members of the Judiciary is a process with underpinnings based on support by the people. Magistrates are of another type. There is no executive branch or legislative branch input into the actual selection process. The selection is entirely removed from the political process. The choice is made by the judges under standards set by them with the approval of their bodies. This is an entirely defensible method if the magistrates are "assistants" to the judges and the judge will be personally responsible for the acts of these subordinates. It is another matter where the magistrate should operate independently and have the power to adjudicate any civil case with the consent of the parties. Their situation is so completely similar to that of the district court judges that it calls into question the need to have the selection process taken out of the hands of the judiciary and placed in some more popular method. At a minimum, presidential appointment would satisfy a societal need to have the selection of its judges traceable in some measure back to the people. C. INDEPENDENCE OF THE MAGISTRATE The process of selection aside, the new magistrate's independence and insulation from pressure is substantially different from that of district court judges. The district court judge is protected in the exercise of his office by Article III which grants him lifetime tenure and protection against diminution of salary. Article III judges also need not fear withdrawal of their jurisdiction to hear cases unless the Congress alters the types of jurisdictions that can be exercised by the courts. When this occurs it operates across the board and doe not single out any particular ditrict court or judge in order to limit or restrain a particular district court judge's exercise of jurisdiction. Under the new bill despite the increase of jurisdiction granted to the magistrates, little is done to provide additional independence of the type we generally associate with federal judges. First, the magistrate does not have lifetime tenure. The magistrate is appointed for eight year terms. While he is protected during that period from arbitrary removal from office, he may well be eyeing his reappointment and if he does wish to be reappointed, he will certainly not wish to displease the very district court judges who will have the controlling power over the reappointment. These same judges will under this bill be reviewing his decisions on appeal during his initial term in office. This is certainly a difference from the independence of a district court judge who need look to no other man to preserve his office for him once he has been appointed. Perhaps the most significant control over the magistrate and thus the great potential restriction on his independence will be the district court's control over the exercise of the magistrate's jurisdiction. Under Sec. (c) (1), the magistrate may exercise civil jurisdiction "when specially designated to exercise such jurisdiction by the courts he serves and under such conditions as may be imposed by the terms of such designation." The provision allows the exercise of the magistrate's jurisdiction to depend not only on a grant of jurisdiction by Congress but also on a grant of specific and personal power by the judges of the district court in which he serves. The jurisdiction can be granted or not granted at the whim of the court. It arguably can be limited to one type or class of case. It can apparently be withdrawn at any time by the court for any reason sufficient to the court. A court dissatisfied with a decision or group of decisions of a magistrate can pull the jurisdictional rug out from under him. This type of control is obviously felt necessary because of the varying quality and competence of the maigstrates and the various needs in the district courts. See, Senate Report, p. 11. Yet this power to control can be used unwisely as well as wisely. It still amounts to control by another person and is the very antithesis of an independent judiciary. We thus have the creation of a magistrate who can dispose by entry of a judgment of any civil case within the jurisdiction of the federal courts. Magistrates are given these powers, but he does not come to the court through the constitutional appointment process nor a reasonable facsimile thereof. He is not guaranteed the independence of the Article III judge and can be closely controlled in the exercise of his jurisdiction by the court. The above considerations strike me as being important in this debate and seem not to have been emphasized up to this time. If the magistrates are to be our judges in fact, then they should be independent in fact and protected from pressures to the extent that legislation reasonably can. If it is felt that the magistrates need to be closely controlled and can not operate independently, then it seems inescapable that the powers sought to be bestowed upon this legislation should be withheld until such time as the Congress feels that the magistrates as a group can be entrusted with the powers. In addition to these basic matters, I have other concerns not addressed in my previous testimony; I will briefly outline these: D. CLASSES OF CIVIL CASES FOR MAGISTRATE JURISDICTION At first blush, it is clear under the present bill as passed by the Senate that specific classes of cases were not to be singled out for referral to magistrates. See, Senate Report at p. 10. Yet under Sections (c) (1) the court by use of "the special designation may also modify the general grant of jurisdiction as necessary to ensure efficient judicial administration within the district." This power makes it unclear as to whether local district courts can condition the exercise of the jurisdiction so that it in fact includes only certain classes of cases. This bill, if passed, should specifically provide that if the magistrate is to exercise any jurisdiction it must be jurisdiction over all civil cases without |