Mr. KASTENMEIER. Thank you. I should announce to the committee that there is a vote on. The Coughlin amendment to the ERDA authorizations.

And I want to express to you, Mr. Begam, the thanks of the committee for your appearance this morning and for your views and those of your association. Indeed, we would like to be in further touch with you on the issues discussed today.

Mr. BEGAM. Thank you, Mr. Chairman.

Mr. KASTENMEIER. That concludes the hearings for this day. [Whereupon, at 12:40 p.m., the hearing was adjourned.]

DIVERSITY OF CITIZENSHIP JURISDICTION/

MAGISTRATES REFORM

TUESDAY, SEPTEMBER 27, 1977

U.S. HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The subcommittee met at 10:20 a.m. in room 2226 of the Rayburn House Office Building; Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Danielson, Drinan, Santini, Ertel, Railsback, and Butler.

Also present: Michael J. Remington, counsel; and Thomas E. Mooney, associate counsel.

Mr. KASTENMEIER. The committee will come to order.

This morning, we are pleased to continue a second day of hearings on legislation relating to diversity of citizenship jurisdiction and magistrates reform in the Federal judicial system.

In this connection, we are very pleased to have as our first panel of witnesses this morning a representative of the American Bar Association, Senator Joseph Tydings, and Magistrate Lawrence S. Margolis, from the District of Columbia.

First, I am very pleased to welcome back an old friend, Senator Tydings. Senator Tydings served illustriously in the Senate from 1965 to 1971, where he chaired the important Judiciary Subcommittee on Improvements in Judicial Machinery, this subcommittee's counterpart.

Prior to serving in the Senate, Senator Tydings was U.S. attorney for the State of Maryland from 1961 to 1963, and a member of the Maryland House of Delegates from 1955 to 1961. He now practices law in the District of Columbia and is chairman of the Judicial Nominating Commission for the District of Columbia, and a member of the ABA's Committee on Coordination of Judicial Improvements.

Senator Tydings is particularly welcome here today because of his personal expertise in the area of magistrates reform. It was his subcommittee which held extensive investigative hearings during the 89th and 90th Congresses, and ultimately reported favorably the bill that became Public Law 90-578, abolishing the Office of U.S. Commissioner and creating a system of U.S. magistrates; so he can be characterized "the godfather of the system."

Second, I welcome the presence of Magistrate Lawrence S. Margolis. Mr. Margolis was appointed U.S. magistrate in 1971. Prior to that he served as an assistant U.S. attorney in the District of Co

lumbia and worked with the Criminal Division in the Justice Department. He was a consultant for the President's Crime Commission in 1965 and 1966, and is chairman of the ABA's National Conference of Special Court Judges.

You are both welcome, and you may proceed as you wish.
Senator Tydings, I will call on you first.

TESTIMONY OF JOSEPH TYDINGS, FORMER U.S. SENATOR FROM THE STATE OF MARYLAND, FOR THE AMERICAN BAR ASSOCIATION

Mr. TYDINGS. Thank you very much, Mr. Chairman, and Mr. Butler. Magistrate Margolis and I have thought the best way to proceed would be for me to first make a statement to you, together with some comments. I will then introduce Magistrate Margolis and he will make a statement, and then we will both be open to any questions which the committee members may desire to pose.

I appreciate the kind of comments of your introductory statement. I think, however, although I might have been one of the "fathers" of the legislation, in those days the "godfather" of the conferences between the Senate and the House was Chairman Celler, and there's no mistake about that. The legislation which ultimately was enacted, although its genesis was in my subcommittee had to have his stamp of approval. Ultimately it had to pass his review and we had to accept his amendments more or less.

Turning first to the legislation relating to the diversity jurisdiction of the U.S. district courts, let me say that the ABA has not taken a formal position yet on this subject.

Its special committee, on which I have served for a number of years, entitled "Coordination of Federal Judicial Improvements," has developed a recommendation which is being submitted for consideration to the house of delegates of the ABA at this coming February's meeting in New Orleans.

That resolution recommends the elimination of Federal court jurisdiction in those suits in which the plaintiff is a citizen of the State in which his action is brought.

It also recommends the raising of the jurisdictional minimum amount in diversity cases from the present $10,000 to $25,000.

The question of whether diversity jurisdiction should be eliminated, or limited-as our committee's proposal would suggest-is, as you know, very controversial. For this reason, I think it would be improper for me to speculate whether or not the ABA will adopt our recommendation. I would hope it would.

It is my understanding that other witnesses before you will direct their attention to the diversity question and explore with you the reasons in support of elimination or curtailment of diversity jurisdiction.

I will be happy to respond to questions now, if the committee should so desire, otherwise I will turn, at this point, from the diversity question to the pending legislation to expand the jurisdiction of U.S. magistrates.

At the annual meeting of the ABA this past August, the house of delegates approved the following resolution:

That the American Bar Association recommends enactment of legislation such as S. 1613, 95th Congress, the proposed Magistrate Act of 1977, as that bill was approved by the U.S. Senate on July 22, 1977.

As you gentlemen know, presently the U.S. magistrate's misdemeanor jurisdiction is limited to nonjury trials with possible penalties of up to 1 year in prison or up to $1,000 fine, or both.

Consent of the defendant to magistrate jurisdiction is currently required in any misdemeanor case. Senate 1613 would remove the fine limitations on misdemeanor jurisdiction. It would permit the U.S. magistrate to try misdemeanor jury trials and require the consent of the defendant to have the U.S. magistrate try the case only where the possible penalty of imprisonment exceeds 6 months. In other words, a nonpetty offense.

These provisions, we feel, have three important benefits.

First, the U.S. magistrates would be able to try thousands of additional misdemeanor cases, permitting the district courts to turn their attention to more serious felony cases.

Second, since few petty offenders have elected to be tried by a Federal judge, some of the paperwork can be eliminated from the criminal process.

And, finally, precious time in the magistrate court would no longer be wasted in securing from defendants waivers of trial before district court judges.

On the civil side, the bill would permit U.S. magistrates, with the consent of the parties, to try any jury or nonjury case, regardless of the issue or amount of money or property involved.

We believe this provision will give greater access to the courts to those who need it most: The poor and disadvantaged in such cases as social security, "black lung," and others involving relatively small amounts of money and property and presently caught in the large backlog of pending cases.

I feel constrained to state that in this type of litigation "justice delayed is justice denied," I think one of the strongest arguments in favor of this proposed magistrate reform bill is that it will provide access to justice to those who today are really denied it because of the delays and the backlogs in our Federal courts.

Thus, parties could elect a civil trial before a U.S. magistrate instead of waiting for a Federal judge who may have a several-year backlog of civil cases and be under severe time pressures to try some of the cases under the Speedy Trial Act.

The U.S. magistrate can assure prompt and speedy resolution of selected civil cases, with the consent of the parties and approval by the district court judge.

The bill also provides that the court shall not attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate.

Appeals from the judgment of a magistrate may be taken to a district court judge and then to the U.S. court of appeals. However, if the party so stipulates, an appeal from the judgment of the magistrate may be taken directly to the court of appeals.

This latter provision eliminates the extra tier of review if the parties desire to have the circuit court review in the first instance.

To improve the quality and selection of magistrates to exercise these important duties, the legislation requires that magistrates must have been admitted to the practice of law for at least 5 years prior to the appointment and that each individual appointed by the district court