STATEMENT ON BEHALF OF

THE FEDERAL MAGISTRATE JUDGES ASSOCIATION

ON THE

FEDERAL COURTS IMPROVEMENT ACT OF 1999 (H.R. 1752)

Introduction

Mr. Chairman, and Members of the Subcommittee, I am Joel Rosen, United States Magistrate Judge for the United States District Court for the District of New Jersey. I am the President of the Federal Magistrate Judges Association. The FMJA is a professional organization exclusively for United States Magistrate Judges. The vast majority of United States Magistrate Judges are members of this voluntary organization. The FMJA thanks you for the opportunity to make this presentation. Our organization believes that enactment of Sections 305 and 306 of H.R. 1752 will substantially improve the ability of Magistrate Judges to perform their functions and to assist in the administration of justice.

The Judicial Conference of the United States fully supports Sections 305 and 306 of H.R. 1752. The FMJA appreciates the Judicial Conferences endorsement of these changes.

SECTION 305 MAGISTRATE JUDGE CONTEMPT AUTHORITY

Existing Law

Under the present law a Magistrate Judge has no power to punish for contempt, either civil or criminal. See 28 U.S.C. § 636(e) . When contumacious behavior occurs, a Magistrate Judge currently is required to certify the facts of the persons conduct to a District Judge before whom the person is required to show cause why that person should not be held in contempt of court. The District Judge then hears evidence and determines if the person is in contempt and may impose punishment.

There are two major deficiencies in this process. The first is that this complicated process does not address the situation where a party, lawyer, witness, or spectator to the proceeding engages in such misbehavior that the actions obstruct the administration of justice and the proceedings before the Magistrate Judge. The second arises in civil consent cases where a Magistrate Judge presides over the entire case, including entry of judgment pursuant to 28 U.S.C. § 636(c). If a party seeks to enforce the judgment through contempt, the Magistrate Judge, who is the Judge most familiar with the case, cannot decide if the conduct by the disobeying party is a violation of the Courts order, but is required to certify the facts to a District Judge who is likely to be completely unfamiliar with the case.

Criminal Contempt

Subsections (2), (3) and (5) of Section 305 provide for criminal contempt authority with limited penalties. Under these provisions the maximum penalties that a Magistrate Judge could impose for criminal contempt can not exceed the penalties for a Class C misdemeanor, 30 days in jail and a $5,000 fine. In petty offense cases tried before a Magistrate Judge, Congress already has authorized Magistrate Judges to impose sentences of up to 30 days in jail and a $5,000 fine without the consent of a party, and in some other petty offense cases, up to six months and a $5,000 fine without consent. 18 U.S.C. § 3401(b) and (g).

Under these provisions, the instances where a Magistrate Judge could use criminal contempt authority are limited. Under Subsection (2), a Magistrate Judge could summarily impose a penalty for misbehavior occurring in the presence of the Magistrate Judge if it constitutes obstruction of justice. Under Subsection (3), a Magistrate Judge could impose criminal contempt penalties in civil cases where the Magistrate Judge presides with the consent of the parties, or in any misdemeanor case, where the criminal contempt constitutes disobedience of the Judges orders. Criminal contempt proceedings in these cases must be conducted after notice and hearing pursuant to Federal Rule of Criminal Procedure 42 (b) These criminal contempt provisions will improve Magistrate Judges ability to maintain order in the courtroom and to obtain compliance with the orders of the District Court.

Civil Contempt

Subsection (4) of Section 305 provides for civil contempt authority in civil consent and misdemeanor cases. Under the present system, when a Magistrate Judge disposes of a consent case pursuant to 28 U.S.C. § 636(c), the Magistrate Judge exercises all the authority of the District Court except for the power to impose civil contempt to enforce the orders of the court. A waste of judicial resources thus occurs because a District Court Judge must enforce the orders of a Magistrate Judge in 28 U.S.C. § 636(c) cases or in misdemeanor or petty offense cases.

The Judicial Conference has taken the position that a District Judges involvement with a civil consent case should end when the case is assigned with the litigants' consent to the Magistrate Judge for adjudication. Congress agreed with this position several years ago when it determined that the only appeal route in a civil consent case is to the circuit court of appeals. Logically, it follows that a Magistrate Judge should have the power of contempt to enforce the orders which the parties themselves have consented to have the Magistrate Judge enter.

Other Contempts

Subsection (6) of Section 305 permits certification of contempt to a District Judge if the criminal contempt is so serious that the Magistrate Judge believes that the limited criminal penalties permitted in Subsection (5) are inappropriate for the conduct. In addition, if the misbehavior occurs outside the presence of the Magistrate Judge or if it is civil contempt that is not within the parameters of Subsection (4) , then the Magistrate Judge will certify the facts to a District Judge and direct the person to appear on a date certain to show cause why the District Judge should not impose contempt upon the person. This provision allows the District Judge to continue to supervise contempt matters that are so serious that a Class C misdemeanor punishment is insufficient, and in other contempts not covered by Subsections (2), (3), and (4).

Section 305 provides the Magistrate Judge with the authority needed to effectively conduct the business of the District Court.

SECTION 306 CONSENT TO MAGISTRATE JUDGE AUTHORITY IN PETTY

OFFENSE CASES AND MAGISTRATE JUDGE AUTHORITY IN MISDEMEANOR CASES

INVOLVING JUVENILE DEFENDANTS

Petty Offenses

The Federal Courts Improvement Act of 1996 recognized that there is no constitutional requirement that defendants consent to proceed before a Magistrate Judge in petty offenses cases (offenses for which the punishment is no greater than six months in jail and a $5,000 fine) . Congress amended Title 18 Sections 3401(b) and (g) so that consent need not be obtained in a petty offense charging a motor vehicle offense, in a Class C misdemeanor, or in an infraction.

The 1996 amendments were a step in the right direction, but they did not go far enough. There are many petty offense cases that proceed before Magistrate Judges where the offense does not involve a motor vehicle. Often on the same misdemeanor dockets, there are motor vehicle related petty offenses that proceed without consent before a Magistrate Judge and other petty offenses that require the consent of the defendant before they can proceed before a Magistrate Judge.

The practical problems of explaining the different consent provisions and the confusion to defendants resulting therefrom have been noticeable. In order to increase efficiency, the FMJA urges the adoption of the provisions in Section 306 that remove the necessity for consent to be obtained from a defendant in all petty offense cases. A common example of this confusion arises when a defendant has two petty offense charges, one of which requires the defendant to consent to proceed before a United States Magistrate Judge and another which requires no consent. A defendant may be charged with trespassing and drunk driving in a national park. The defendant is required to proceed to trial before a Magistrate Judge on the drunk driving charge, but may elect to be tried before a District Judge on the trespassing charge even though the charge arose out of the same fact situation. Each of the offenses in a national park carries the same maximum penalty--six months in jail and a $5,000 fine.

In order to maximize the effectiveness of Magistrate Judges in disposing of over 85,000 petty offense cases a year, the FMJA advocates the elimination of the consent requirement in all petty offense cases.

Juvenile Defendants

The remaining provisions of Section 306 relate to juvenile defendants. The amendments to 18 U.S.C. § 3401(g) provide that a Magistrate Judge could, without the need for consent, exercise all the powers of the District Court in petty offense cases involving juveniles. In addition, the Magistrate Judge, with the consent of the juvenile, could exercise all powers of the district court in misdemeanor cases other than petty offense cases. And finally, the Magistrate Judge could impose a term of imprisonment in a juvenile case. Since the vast majority of misdemeanor cases are heard and decided by Magistrate Judges, these amendments enable Magistrate Judges to try juvenile defendants in the regular handling of misdemeanor matters that arise out of a federal enclave.

We believe that these minor amendments would expedite justice for juveniles and their victims.

CONCLUSION

On behalf of the Federal Magistrate Judges Association, I wish to thank the Subcommittee for allowing the Association to appear at this hearing and to comment upon these issues. I will be happy to answer any questions that the Subcommittee may have.

Respectfully submitted,

Joel B. Rosen, President

Federal Magistrate Judges Association