to serve as a full-time magistrate must also be certified by the Judicial Council of the circuit as qualified to perform the duties of the office. Further, the Judicial Conference of the United States is directed to promulgate standards and procedures for the selection of competent magistrates.

With regard to the constitutionality of these provisions, the testimony before the Senate was nearly unanimous that this bill would pass constitutional muster. That view was voiced by, among others, Attorney General Griffin B. Bell.

Personally, I have a deep and sincere conviction with regard to the merits of this bill. I take pride in, and have received great gratification from, the fact that I helped draft the Federal Magistrates Act of 1968 and directed and chaired the extensive hearings which are the background of that legislation.

Mr. Chairman, your subcommittee recently held extensive hearings on "access to justice" and the "state of the judiciary." These hearings highlighted the need to take bold steps if the system for administering justice in the Federal courts is not to founder.

This legislation, drafted by the Justice Department and improved upon in the Senate, is such a step, and the American Bar Association recommends its prompt passage.

Mr. Chairman, I am delighted to testify on behalf of the American Bar Association. Those are my formal remarks.

[The prepared statement of Mr. Tydings follows:]

STATEMENT OF JOSEPH D. TYDINGS ON BEHALF OF THE AMERICAN BAR ASSOCIATION

Mr. Chairman and Members of the Subcommittee: I am Joseph D. Tydings and appear before you on behalf of the American Bar Association by designation of its President, Mr. William B. Spann, Jr.

Turning first to the legislation relating to the diversity jurisdiction of the U.S. district courts, let me say that the American Bar Association has not as yet taken a position on the desirability of eliminating, or in any way curtailing, such jurisdiction.

However, a Special Committee on Coordination of Federal Judicial Improvements, of which I was privileged to be a member until this past August, has developed a recommendation which will be submitted for consideration by the Association's House of Delegates at its meeting in New Orleans in February, 1978. 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 is, as you know, quite controversial. For this reason it is impossible for me at this time to speculate with any certainty as to the action which may be taken by the Association's House of Delegates in February.

It is my understanding that other witnesses will direct their attention to the diversity question and explore with the subcommittee the reasons in support of elimination or curtailment of diversity jurisdiction, and the impact of either on access to the courts. Therefore, I shall turn from the diversity question to that as to which the Association has a definitive position and as to which I have some personal experience to share with the Subcommittee-that is, the pending legislation to expand the jurisdiction of U.S. Magistrates.

At the annual meeting of the American Bar Association 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."

Presently, U.S. Magistrate misdemeanor jurisdiction is limited to non-jury trials with possible penalties of up to 1 year in prison or up to a $1,000 fine, or

both. Consent of the defendant to magistrate jurisdiction is currently required in any misdemeanor case. S. 1613 would remove the fine limitation, permit the U.S. Magistrate to try misdemeanor jury trials, and require the consent of a defendant to have the U.S. Magistrate try the case only where the possible penalty of imprisonment exceeds 6 months (non-petty offenses). These provisions have three important benefits. First, 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 clected to be tried by a Federal judge, some of the paperwork can be eliminated from the criminal process. Finally, precious time in the Magistrate courts 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 no-jury case regardless of the issue or amount of money or property involved. We believe this provision will give greater access to the courts to 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.

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 felony cases under the Speedy Trial Act. The U.S. Magistrate could assure a 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 the magistrate may be taken to a district court judge and then to the U.S. court of appeals. However, if the parties so stipulate, 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 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 serve as a full-time magistrate must also be certified by the judicial council of the circuit as qualified to perform the duties of the office. Further, the Judicial Conference of the United States is directed to promulgate standards and procedures for the selection of competent magistrates.

With regard to the constitutionality of these provisions, the testimony before the Senate was nearly unanimous that this bill would pass constitutional muster. That view was voiced by, among others, Attorney General Griffin B. Bell.

Personally, I have a deep and sincere conviction with regard to the merits of this bill. I take pride in, and have received great gratification from, the fact that I helped draft the Federal Magistrates Act of 1968 and personally chaired the extensive hearings on the legislation while a U.S. Senator. This bill is a logical extension of the principle, and in keeping with the purpose and intent of, that Act when originally enacted in 1968.

Mr. Chairman, your subcommittee recently held extensive hearings on "Access to Justice" and the "State of the Judiciary." Those hearings highlighted the need to take some bold steps if the system for administering justice in the Federal courts is not to founder. This legislation, originally drafted by the Justice Department and improved upon in the Senate, is such a step. The American Bar Association recommends its prompt passage.

Mr. TYDINGS. I might just make a few comments about the background of the legislation for your own edification and to refresh your recollection.

In 1966, when I became chairman of the Subcommittee on Judicial Improvements in the Senate, the first hearings we held were to explore the existing U.S. commissioner system. As happens in politics and in life, I was frequently in contact with the U.S. commissioners in Maryland during my tenure as U.S. attorney. I was tremendously impressed by one particular U.S. commissioner, old Judge Ernest Volkhart, who lived in my home county. He served for many years as the U.S. com

missioner in Baltimore and had the respect and esteem of all the U.S. attorneys, the Federal judge, agents of the FBI. It was understood that any U.S. attorney or assistant U.S. attorney who sought a search warrant or arrest warrant from Judge Volkhart and didn't have his facts in order, indeed, precise, would get quite a chewing out-and be told peremptorily to go back and secure more evidence and in 1966 reapply. Our initial hearings on the U.S. commissioner system showed clearly that the system really was so anchronistic as to constitute almost an affront to justice. A Commissioner's remuneration was based on the number, in many instances, of papers and warrants issued. There were, I think, only 86 full-time commissioners in the whole United States. Federal justice quite often was conducted in the tailgate of a pickup truck-not that that wouldn't be proper justice if the proper individual was acting in the judicial capacity-but in many cases basic legal qualifications were absent. Even good common sense was not available. We had to make a determination at the conclusion of those exploratory hearings as to whether or not we would abolish the U.S. commissioner system or whether we would try and upgrade the U.S. commissioner as an arm or a branch of the article III district court in order to make the Federal district courts more effective and to provide better justice to the great majority of the many citizens whose initial contract with Federal justice was in the arraignment proceeding before a U.S. commissioner. We took the latter course, and we held extensive exploratory hearings in 1967-68, from which we developed present law creating the U.S. magistrate system, which has been in effect, and, I think, working well, since 1971.

I was present at the birth of the magistrates system. I hasten to add that Senator Ervin, Senator Hruska, also helped to pioneer the development of that legislation. They were on my subcommittee and were deeply involved.

As one who was there at its birth, I have been tremendously pleased with the development of the magistrate system. We purposely, when we drafted it, encouraged the U.S. district courts to utilize the magistrates as far as possible in civil matters as special masters in special types of proceedings in order to improve the efficiency of the U.S. district courts.

We held the same types of hearings that you have been holding, Mr. Chairman, with respect to the state of the Federal judiciary, back in the 1960's, and we found that, if we removed or abolished the U.S. commissioners and replaced them with district judges to assume their responsibilities, the cost would have been astronomical, and we don't feel that justice would have been ultimately any more effective than the justice which has been secured now under the magistrate system. My point is that we recommended that the district courts utilize the magistrates to improve their own effectiveness, to improve their own efficiency. I think they have. I think that the reforms which are before you are an important step to broaden the basis of the access to justice of all Americans.

Magistrate Margolis-who will testify shortly-is an example of what we had hoped would happen in the magistrate system.

Magistrate Margolis is a lawyer with an outstanding background. He is a graduate engineer. He served 3 years as assistant corporation counsel of the District of Columbia, 3 years in the Criminal Division

of the Department of Justice, 3 years as an assistant U.S. attorney before he was appointed to be a magistrate-a part of the United States District Court here in the District of Columbia.

During his tenure, he has tried a great many important cases. As a matter of fact, he was designated by a three-judge court as the special master to try the Voting Rights Act of 1965, when certain issues went all the way to the Supreme Court.

Magistrate Margolis is an example of the type of improvement in justice which we had envisioned when we initially enacted the Magistrates Act. He is chairman of the National Conference of Special Court Judges of the ABA, which is a conference which includes not only the United States magistrates but judges of similar courts of similar jurisdictions in the State system.

I might point out, finally, Mr. Chairman, that I think that the development of the magistrates court, with proper legislative overview, will enhance and improve the quality of justice to all citizens who come into contact with the Federal judicial system.

Now, Mr. Margolis.

TESTIMONY OF MAGISTRATE LAWRENCE S. MARGOLIS, U.S. MAGISTRATE, U.S. DISTRICT COURT FOR THE DISRICT OF COLUMBIA, CHAIRMAN, NATIONAL CONFERENCE OF SPECIAL COURT

JUDGES, AMERICAN BAR ASSOCIATION

Mr. MARGOLIS. Thank you very much, Senator Tydings, for your kind remarks.

Mr. Chairman, Congressman Butler, it is a privilege to be here with Senator Tydings to speak on behalf of S. 1613. Senator Tydings is the father of the magistrates system. It was primarily due to his initiative, skill, and foresight that we have the magistrates system today.

I do not speak for any district court judges or the court in which I sit.

I am chairman of the National Conference of Special Court Judges of the ABA. That conference is an ongoing organization of some 1,300 special court judges. It includes State judges, county judges, municipal judges, U.S. magistrates, and bankruptcy referees.

Our conference is vitally concerned with the administration of justice in all courts, particularly the Federal courts.

Our conference, along with the ABA Special Committee for the Coordination of Federal Judicial Improvements, of which Senator Tydings is a member, co-sponsored the resolution adopted by the ABA at its annual meeting in Chicago in August.

I also speak to you in another role, as I am and have been a U.S. magistrate for the District of Columbia since 1971. In that capacity, I believe I can answer your questions as to the present duties of U.S. magistrates and how these duties would be changed under the proposed legislation.

I am also on the Board of Directors of the National Council of U.S. Magistrates, the national organization of U.S. magistrates. That particular group also endorses this legislation.

The primary message I would like to deliver to you today is that this bill is a relatively modest proposal with regard to the duties of

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U.S. magistrates. Senator Tydings has outlined the main provisions of the bill to you. Probably, the most important provision is that which would permit U.S. magistrates to try any jury or nonjury trial with the consent of the parties. In fact, U.S. magistrates throughout the United States are trying these cases presently. The explicit authority to perform these functions is not in present law, which has led some courts to hold back on the assignment of these duties to magistrates. However, the United States Code does permit magistrates to handle pretrial motions, conduct hearings, and serve as special masters. The present Magistrates Act of 1968 also provides that U.S. magistrates may perform such additional duties as are not inconsistent with the Constitution and the laws of the United States.

This bill will clear up any ambiguity in present law and establish, once and for all, the statutory authority of U.S. magistrates to handle consentual jury and nonjury civil cases.

I respectfully refer the committee to the hearings before the Senate Judiciary Committee, where nearly all the witnesses expressed the view that the consent of the parties to magistrate jurisdiction resolves any constitutional question as to the authority of U.S. magistrates to handle jury and nonjury civil trials.

I might add that the U.S. magistrate's court is not a separate tribunal from the U.S. district court, but functions as part of that court. Our duties are delegated to us by local court rules approved by the district court judges themselves. We are judicial officers of the U.S. district court. Furthermore, our decisions are subject to review on appeal by an article III Federal judge. The district court functions through the magistrates.

Full-time U.S. magistrates are appointed for 8 year terms by a majority of the Federal judges in their district. In the Federal courts, there are about 164 full-time U.S. magistrates and about 323 parttime U.S. magistrates. The part-time magistrates are appointed for 4 years and handle primarily criminal matters. During the fiscal year 1977, U.S. magistrates conducted more than a quarter of a million judicial proceedings, and my prepared statement breaks them down for you.

An example of the type of case being tried by U.S. magistrates, at which I have presided during the past few years, includes a Voting Rights Act case involving the city of Richmond, Va., which eventually went to the Supreme Court of the United States. I have also handled an alleged price-fixing case involving major steel companies, Freedom of Information Act cases, patent cases, and breach of contract cases. In these cases, I was either appointed a special master or presided as the trial judge with the consent of the parties.

A number of district court judges know that I have an engineering degree, and when they get a patent case, these cases somehow find their way down to me with the consent of the parties.

In summary, I would like to quote from a representative of the judiciary in his testimony on S. 1613 before the Senate Judiciary Committee:

The Federal magistrates system has been a success. The variety and volume of duties assigned to magistrates by the district courts have progressively expanded, and magistrates today are an integral part of the process for disposing of civil and criminal cases in most district courts. No new Federal district judgeshin has been created since 1970. Nevertheless, the courts have been able to substantially increase their caseload disposition rate.