Following enactment of the Federal Magistrates Act, the United
States District Court for the Western District of Kentucky amended
its Local Rule 16 to provide that, in addition to submitting such
other reports and recommendations as may be required concerning
petitions for writs of habeas corpus from state prisoners the
full-time magistrate shall
"schedule and hear evidentiary matters . . . [to be
electronically recorded] deemed by the Magistrate to be necessary
and proper in the determination of . . . such petition, and to
report thereon with an appropriate recommendation for the
disposition thereof to the District Judge [who] . . . [u]pon . . .
request . . . shall proceed to hear the recording of the testimony
. . . and give it
de novo consideration."
Respondent, a state prisoner, whose petition for habeas corpus
was assigned to a full-time Magistrate for processing, claimed that
the Rule is invalid, and filed a motion with the District Court
that the Magistrate be disqualified from holding the habeas corpus
hearing and that the hearing be assigned to a district judge. The
District Court denied the motion; the Magistrate proceeded with the
hearing; and thereafter he transmitted the electronic recording to
the District Court along with his written findings and conclusions
recommending dismissal. The District Court, following respondent's
motion for a
de novo hearing, listened to the recording,
on the basis of which, together with the Magistrate's findings and
conclusions, it dismissed the petition. The Court of Appeals
reversed, holding that, notwithstanding a formal revision of the
habeas corpus statute, 28 U.S.C. § 2243, the construction of the
predecessor statute given in
Holiday v. Johnson,
313 U. S. 342,
still applied, to the effect that the statute plainly accorded a
prisoner seeking habeas corpus relief the right of testifying
before a judge.
Held:
1. Title 28 U.S.C. § 2243, like its predecessor, Rev.Stat. §
761, requires that the district judge personally conduct
evidentiary hearings in federal habeas corpus cases.
Holiday v.
Johnson,
Page 418 U. S. 462
supra, United States v. Hayman, 342 U.
S. 205,
342 U. S. 231
n. 16;
Brown v. Allen, 344 U. S. 443,
344 U. S.
462-463. Pp.
418 U. S.
468-469.
2. It is clear from the text and legislative history of the
Magistrates Act that Congress did not intend to alter the
requirements of 28 U.S.C. § 2243, and therefore Local Rule 16,
insofar as it authorizes the full-time magistrate to hold habeas
corpus evidentiary hearings, is invalid because it is "inconsistent
with the . . . laws of the United States" under § 636(b) of the
Act, and because § 636(b) itself precludes a district judge from
assigning a magistrate the duty of conducting an evidentiary
hearing and limits the magistrate's review to proposing, not
holding, such a hearing. Pp.
418 U. S.
469-473.
3. The invalidity of Local Rule 16 is not cured by the procedure
relating to electronic recording, which does not enable the
district judge to evaluate credibility by personally hearing and
observing the witnesses. Pp.
418 U. S.
473-474.
483 F.2d 1131, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. BURGER, C.J., filed a dissenting opinion, in which WHITE,
J., joined,
post, p.
418 U. S.
474.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question here is whether federal magistrates are authorized
to conduct evidentiary hearings in federal habeas corpus cases. In
1968, Congress enacted the
Page 418 U. S. 463
Federal Magistrates Act, 28 U.S.C. §§ 631-639, to upgrade and
expand the former United States commissioner system. The Act
authorizes magistrates to exercise all powers formerly exercised by
United States commissioners, [
Footnote 1] and also, as a means of relieving the caseload
burden of the federal district judges, empowers magistrates to try
minor offenses when all parties consent, [
Footnote 2] and to perform such additional duties
assigned by the district court as are "not inconsistent with the
Constitution and laws of the United States." [
Footnote 3] Pursuant to
Page 418 U. S. 464
the Act; the Judges of the United States District Court for the
Western District of Kentucky amended Local Rule 16 of that court to
provide:
"In addition to submitting such other reports and
recommendations as may be required concerning petitions for writs
of habeas corpus from state prisoners the full-time Magistrate is
directed to schedule and hear evidentiary matters deemed by the
Magistrate to be necessary and proper in the determination of each
such petition, and to report thereon with an appropriate
recommendation for the disposition thereof to the District Judge
having jurisdiction of the case. The Magistrate shall cause the
testimony of such hearing to be recorded on suitable electronic
sound recording equipment. He shall submit his proposed findings of
fact and conclusions of law to the proper Judge for his
consideration, copies of which shall be provided at that time to
the petitioner and respondent, and the Magistrate shall
expeditiously transmit the proceedings, including the recording of
the testimony, to the proper District Judge. Upon written request
of either party, filed within ten days from the date such is so
transmitted to the District Judge having jurisdiction thereof, the
District Judge shall proceed to hear the recording of the testimony
given at the evidentiary hearing and give it
de novo
consideration. "
Page 418 U. S. 465
Respondent is a state prisoner whose petition for federal habeas
corpus relief was assigned by the District Court to a full-time
Magistrate for processing under the rule. The part of the rule
challenged here is that which directs the full-time magistrate
"to schedule and hear evidentiary matters [to be electronically
recorded] deemed by the Magistrate to be necessary and proper in
the determination of . . . such petition, and to report thereon
with an appropriate recommendation for the disposition thereof to
the District Judge [who] . . . [u]pon . . . request . . . shall
proceed to hear the recording of the testimony . . . and give it
de novo consideration."
The question is whether this portion of the rule is invalid
because "inconsistent with the . . . laws of the United States"
within the meaning of the Federal Magistrates Act, 28 U.S.C. §
636(b), or because § 636(b) itself should be construed to preclude
district courts from assigning such duties to magistrates.
I
Respondent, Carl James Wedding, is a prisoner in the Kentucky
State Penitentiary serving a life sentence imposed in 1949 by the
Webster Circuit Court, Commonwealth of Kentucky, after a plea of
guilty to a charge of willful murder. Wedding filed this petition
for habeas corpus in 1971. After the Court of Appeals for the Sixth
Circuit reversed the initial dismissal of his petition, 456 F.2d
245 (1972), and remanded for an evidentiary hearing, the District
Court invoked Local Rule 16 and assigned the case to a full-time
Magistrate to hold the hearing. Wedding promptly moved that the
Magistrate be disqualified and the hearing be reassigned to a
District Judge, on the ground that the Federal Magistrates Act did
not authorize district courts to assign to magistrates the duty to
hold habeas corpus evidentiary hearings. When the District Court
denied the motion, the Magistrate proceeded
Page 418 U. S. 466
with the hearing, and electronically recorded all testimonial
evidence as required by Local Rule 16. Thereafter, the Magistrate
transmitted the recording of the testimony to the District Judge
and submitted written findings of fact and conclusions of law
recommending that the petition be dismissed.
Wedding moved that the District Court give the matter a
de
novo hearing. The District Judge's response was to listen, as
authorized by Local Rule 16, to the recording of the hearing before
the Magistrate. On this basis and the Magistrate's findings and
conclusions, the District Court entered an order dismissing
respondent's petition.
On appeal, Wedding renewed his challenge to Local Rule 16,
relying upon
Holiday v. Johnston, 313 U.
S. 342 (1941).
Holiday was also a federal
habeas corpus case. There, after determining that the petition for
writ of habeas corpus alleged facts which, if proved, would entitle
the petitioner to relief, the District Judge issued a writ
compelling the respondent to produce the petitioner before a
designated United States Commissioner. The Commissioner held an
evidentiary hearing at which the petitioner testified and the
respondent submitted the depositions of two witnesses. On the basis
of the evidence received, the Commissioner made findings of fact
and stated conclusions of law recommending that the writ be denied.
After hearing oral argument on the Commissioner's report, the
District Judge entered an order discharging the writ.
This Court reversed, holding that the factfinding procedure
employed failed to conform to Congress' express command in the
Habeas Corpus Act that
"[t]he
court, or justice, or judge shall proceed in a
summary way to determine the facts of the case, by hearing the
testimony and arguments, and thereupon to dispose of the party as
law and justice require."
Rev.Stat. § 761,
Page 418 U. S. 467
28 U.S.C. § 461 (1940 ed.) (emphasis added). The Court held that
the statute plainly accords a prisoner the right of testifying
before a
judge, stating:
"One of the essential elements of the determination of the
crucial facts is the weighing and appraising of the testimony.
Plainly it was intended that the prisoner might invoke the exercise
of this appraisal by the judge himself. We cannot say that an
appraisal of the truth of the prisoner's oral testimony by a master
or commissioner is, in the light of the purpose and object of the
proceeding, the equivalent of the judge's own exercise of the
function of the trier of the facts."
"
* * * *"
"The District Judge should himself have heard the prisoner's
testimony and, in the light of it and the other testimony, himself
have found the facts and based his disposition of the cause upon
his findings."
Holiday v. Johnston, supra, at
313 U. S. 352,
313 U. S.
353-354.
Wedding contended that neither the text nor legislative history
of the Federal Magistrates Act evidences a congressional intent to
overrule
Holiday. The Court of Appeals agreed, and
accordingly
"vacate[d] the judgment of dismissal and remand[ed] the case
with instructions that the [District] Court itself hold an
evidentiary hearing on [Wedding's] constitutional claims."
483 F.2d 1131, 1137 (CA6 1973). We granted certiorari, 414 U.S.
1157 (1974). We affirm. [
Footnote
4]
Page 418 U. S. 468
II
Under our constitutional framework, the "great constitutional
privilege" of habeas corpus,
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 95 (1807)
(Marshall, C.J.), has historically provided
"a prompt and efficacious remedy for whatever society deems to
be intolerable restraints. Its root principle is that, in a
civilized society, government must always be accountable to the
judiciary for a man's imprisonment: if the imprisonment cannot be
shown to conform with the fundamental requirements of law, the
individual is entitled to his immediate release."
Fay v. Noia, 372 U. S. 391,
372 U. S.
401-402 (1963). More often than not, claims of
unconstitutional detention turn upon the resolution of contested
issues of fact. Accordingly, since the Judiciary Act of February 5,
1867, c. 28, § 1, 14 Stat. 385, Congress has expressly vested
plenary power in the federal courts "for taking testimony and
trying the facts anew in habeas hearings. . . ." [
Footnote 5]
Fay v. Noia, supra, at
372 U. S. 416.
See also Townsend v. Sain, 372 U.
S. 293,
372 U. S. 312
(1963).
In connection with the 1948 revision and recodification of the
Judicial Code, [
Footnote 6]
Rev.Stat. § 761, construed in
Holiday, and other
procedural provisions of the Habeas Corpus Act were consolidated
into 28 U.S.C. § 2243. The pertinent portion covering habeas corpus
evidentiary hearings provides that "[t]he court shall summarily
hear and determine the facts, and dispose of the matter as law and
justice require." The Revisers thus deleted some
Page 418 U. S. 469
words from Rev.Stat. § 761, but the Revisers' Notes accompanying
§ 2243, together with the reports of the Committee of the Judiciary
of the Senate, [
Footnote 7] and
of the House, [
Footnote 8] make
abundantly clear that the word changes and omissions in Rev.Stat. §
761 were intended only as changes in form. [
Footnote 9]
Accordingly, the construction of § 2243 has been that given §
761 in
Holiday. United States v. Hayman,
342 U. S. 205,
342 U. S. 213
n. 16 (1952);
Brown v. Allen, 344 U.
S. 443,
344 U. S.
462-463 (1953). The Court held in the latter case:
"A
federal judge on a habeas corpus application is
required to 'summarily hear and determine the facts, and dispose of
the matter as law and justice require,' 28 U.S.C. § 2243. This has
long been the law. R.S. § 761, old 28 U.S.C. § 461."
Ibid. (emphasis added).
III
Our inquiry is thus narrowed to the question whether the Federal
Magistrates Act changed the requirement of § 2243 that federal
judges personally conduct habeas corpus evidentiary hearings.
Certainly nothing in the text
Page 418 U. S. 470
or legislative history of the Magistrates Act suggests that
Congress meant to change that requirement. [
Footnote 10] Rather, both text and legislative
history plainly reveal a congressional determination to retain the
requirement. For, although the Act gives district judges broad
authority to assign a wide range of duties to magistrates, Congress
carefully circumscribed the permissible scope of assignment to only
"such additional duties as are
not inconsistent with the
Constitution and laws of the United States." 28 U.S.C. §
636(b) (emphasis added). And in defining assignable duties,
Congress decreed that the duty of holding evidentiary hearings was
not assignable. This clearly emerges from the legislative history
of subsection (3) of § 636(b), which provides:
"(3) preliminary review of applications for post-trial relief
made by individuals convicted of criminal offenses, and submission
of a report and recommendations to facilitate the decision of the
district judge having jurisdiction over the case
as to whether
there should be a hearing."
(Emphasis added.)
That legislative history reveals that the Judicial Conference of
the United States objected to successive phrasings of subsection
(b)(3) until it was phrased to make clear that the authority given
district courts to assign duties to magistrates did not include
authority to hold evidentiary hearings on applications for
post-trial relief. [
Footnote
11]
Page 418 U. S. 471
The original draft of the subsection [
Footnote 12] had proposed that magistrates' duties
include
"(3) preliminary consideration of applications for post-trial
relief made by individuals convicted of criminal offenses."
But because that language was susceptible of the interpretation
that magistrates might conduct evidentiary hearings, the Judicial
Conference of the United States objected to it. [
Footnote 13] Accordingly, the subsection
was rewritten to provide for
"(3) preliminary review of applications for post-trial relief
made by individuals convicted of criminal offenses, and submission
of a report and recommendations to facilitate the decision of the
district judge having jurisdiction over the case. . . ."
The Committee on the Administration of the Criminal Law of the
Judicial Conference objected that the revision did not
"make it clear that it is the judge's responsibility to make the
ultimate decisions and to hold hearings on such applications,
rather than that of the
Page 418 U. S. 472
magistrate. [
Footnote
14]"
The Committee therefore recommended the addition of the phrase
"as to whether there should be a hearing" immediately following the
word "case." [
Footnote 15]
The proposed addition was made, [
Footnote 16] and subsection (b)(3) in its present form
was enacted. Thus, although § 636(b) provides that "additional
duties authorized by rule may include, but are not restricted to,"
duties defined in subsection (b)(3), the legislative history of the
subsection compels the conclusion that Congress made a deliberate
choice to preclude district courts from assigning magistrates the
duty to hold evidentiary hearings.
We conclude that, since § 2243 requires that the District Judge
personally hold evidentiary hearings in federal habeas corpus
cases, Local Rule 16, insofar as it authorizes the full-time
magistrate to hold such hearings, is invalid because it is
"inconsistent with the . . . laws of the United States" under §
636(b). We conclude further that the Rule is to that extent
invalid, because, as we construe § 636(b), that section itself
precludes district judges from assigning magistrates the duty of
conducting evidentiary hearings. [
Footnote 17] Review by magistrates of applications for
post-trial relief is thus limited to review for the purpose of
proposing, not holding, evidentiary
Page 418 U. S. 473
hearings. [
Footnote 18]
In connection with the preliminary review whether or not to propose
that the district judge hold an evidentiary hearing, we agree that
magistrates may receive the state court record and all affidavits,
stipulations, and other documents submitted by the parties.
[
Footnote 19] Magistrates
are prohibited only from conducting the actual evidentiary
hearings. [
Footnote 20]
The invalidity of Local Rule 16 is not cured by its provision
that the
"District Judge shall proceed to hear
Page 418 U. S. 474
the recording of the testimony given at the evidentiary hearing
and give it
de novo consideration."
Holiday reasoned that the command of § 761, now § 2243,
was designed by Congress in recognition that "[o]ne of the
essential elements of the determination of the crucial facts is the
weighing and appraising of the testimony." 313 U.S. at
313 U. S.
352.
"To experienced lawyers, it is commonplace that the outcome of a
lawsuit -- and hence the vindication of legal rights -- depends
more often on how the factfinder appraises the facts than on a
disputed construction of a statute or interpretation of a line of
precedents. Thus, the procedures by which the facts of the case are
determined assume an importance fully as great as the validity of
the substantive rule of law to be applied."
Speiser v. Randall, 357 U. S. 513,
357 U. S. 520
(1958). Congress,
Holiday held, "[p]lainly . . . intended
that the prisoner might invoke . . . appraisal by the judge
himself." In that circumstance, we "cannot say that an appraisal of
the truth of the prisoner's oral testimony" based on listening to a
recording of it,
"is, in the light of the purpose and object of the proceeding,
the equivalent of the judge's own exercise of the function of the
trier of the facts."
313 U.S. at
313 U. S.
352.
Affirmed.
[
Footnote 1]
Commissioners had been empowered by the Federal Rules of
Criminal Procedure to give oaths (Rule 3); issue arrest warrants
(Rule 4); conduct preliminary examinations of arrestees (Rule 5);
issue subpoenas (Rule 17); issue warrants of removal to another
district (Rule 40); and release defendants on bail (Rule 46). In
addition, commissioners were authorized to try persons accused of
petty offenses (defined by 18 U.S.C. § 1(3) as crimes for which the
penalty does not exceed imprisonment for six months or a fine of
not more than $500 or both) committed within the confines of
federal enclaves, 62 Stat. 830. In civil cases, commissioners were
limited to administering oaths and taking bail, acknowledgments,
affidavits, and depositions. 62 Stat. 917.
[
Footnote 2]
Unlike the more restricted criminal trial jurisdiction of the
former commissioners,
see n 1,
supra, the authority of magistrates extends
to minor offenses committed anywhere within the judicial district,
and includes crimes punishable by imprisonment not exceeding one
year, or a fine of not more than $1,000, or both.
[
Footnote 3]
The Federal Magistrates Act, 28 U.S.C. § 636(b), provides:
"(b) Any district court of the United States, by the concurrence
of a majority of all the judges of such district court, may
establish rules pursuant to which any full-time United States
magistrate, or, where there is no full-time magistrate reasonably
available, any part-time magistrate specially designated by the
court, may be assigned within the territorial jurisdiction of such
court such additional duties as are not inconsistent with the
Constitution and laws of the United States. The additional duties
authorized by rule may include, but are not restricted to -- "
"(1) service as a special master in an appropriate civil action
pursuant to the applicable provisions of this title and the Federal
Rules of Civil Procedure for the United States district
courts;"
"(2) assistance to a district judge in the conduct of pretrial
or discovery proceedings in civil or criminal actions; and"
"(3) preliminary review of applications for post-trial relief
made by individuals convicted of criminal offenses, and submission
of a report and recommendations to facilitate the decision of the
district judge having jurisdiction over the case as to whether
there should be a hearing."
[
Footnote 4]
We thus agree with the Court of Appeals that this case does not
require resolution of the question whether Congress
constitutionally may enact legislation vesting authority, pursuant
to rule or order of court, in magistrates to hold evidentiary
hearings on habeas corpus petitions. We indicate no views as to the
validity of investing such authority in a magistrate or other
officer "outside the pale of Article III of the Constitution." 483
F.2d 1131, 1133 n. 1 (CA6 1973).
[
Footnote 5]
The relevant portion of the Judiciary Act of February 5, 1867,
c. 28, § 1, 14 Stat. 385, provides that the
"court or judge shall proceed in a summary way to determine the
facts of the case, by hearing testimony and the arguments of the
parties interested, and if it shall appear that the petitioner is
deprived of his or her liberty in contravention of the constitution
or laws of the United States, he or she shall forthwith be
discharged and set at liberty."
[
Footnote 6]
62 Stat. 869.
[
Footnote 7]
S.Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948).
[
Footnote 8]
H.R.Rep. No. 308, 80th Cong., 1st Sess., A178 (1947).
[
Footnote 9]
See also J. Moore, Commentary on the U.S. Judicial Code
436 n. 78 (1949);
Payne v. Wingo, 442 F.2d 1192, 1194 (CA6
1971).
Had any substantive change in the meaning of Rev.Stat. § 761, as
construed in
Holiday v. Johnston, been intended, the
Revisers' Notes would have called attention to the change. William
W. Barron, the Chief Reviser of the Code, explained:
"[N]o changes of law or policy will be presumed from changes of
language in revision unless an intent to make such changes is
clearly expressed. Mere changes of phraseology indicate no intent
to work a change of meaning, but merely an effort to state in clear
and simpler terms the original meaning of the statute revised."
Barron, The Judicial Code 1948 Revision, 8 F.R.D. 439, 445-446.
See also S.Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948);
H.R.Rep. No. 308, 80th Cong., 1st Sess., 7 (1947).
[
Footnote 10]
A full discussion of the legislative history of the Federal
Magistrates Act will be found in
TPO, Inc. v. McMillen,
460 F.2d 348 (CA7 1972).
[
Footnote 11]
Where Congress gave magistrates authority to conduct hearings,
the authority was express and circumscribed with procedural
safeguards. Thus, 28 U.S.C. § 636(a)(3) gives magistrates
jurisdiction to conduct trials for minor offenses, but 18 U.S.C. §
3401 provides that any person charged with a minor offense may
elect to be tried by a district judge. Title 28 U.S.C. § 636(b)(1)
authorizes magistrates to serve as special masters -- which
frequently involves the conduct of hearings -- but makes that
service subject to the Federal Rules of Civil Procedure, which
include the restrictions of Rule 53(b) that "reference to a master
shall be the exception and not the rule."
See Note,
Developments in the Law -- Federal Habeas Corpus, 83 Harv.L.Rev.
1038, 1189 n. 229 (1970).
[
Footnote 12]
S. 3475, Federal. Magistrates Act of 1966, 89th Cong., 2d Sess.
(1966).
[
Footnote 13]
See the Report of the Committee on the Administration
of the Criminal Law, adopted by the Judicial Conference in
September 1966, reprinted in the Hearings on S. 3475 and S. 945
before the Subcommittee on Improvements in Judicial Machinery of
the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966)
and 90th Cong., 1st Sess. (1967), pp 241j, 241n.
[
Footnote 14]
See the Report of the Committee on the Administration
of the Criminal Law, adopted by the Judicial Conference in March
1967, reprinted in the Hearings on S. 3475 and S. 945 before the
Subcommittee on Improvements in Judicial Machinery of the Senate
Committee on the Judiciary, 89th Cong., 2d Sess. (1966) and 90th
Cong., 1st Sess. (1967), pp. 244, 245.
[
Footnote 15]
Ibid.
[
Footnote 16]
S. 945, Federal Magistrates Act of 1967, 90th Cong., 1st Sess.
(1967).
[
Footnote 17]
See Shapiro, Federal Habeas Corpus: A Study in
Massachusetts, 87 Harv.L.Rev. 321, 364-365 (1973); Note,
Developments in the Law -- Federal Habeas Corpus, 83 Harv.L.Rev.
1038, 1188-1189 (1970).
[
Footnote 18]
"A qualified, experienced magistrate will, it is hoped, acquire
an expertise in examining these [post-conviction review]
applications and summarizing their important contents for the
district judge, thereby facilitating his decisions. Law clerks are
presently charged with this responsibility by many judges, but
judges have noted that the normal 1-year clerkship does not afford
law clerks the time or experience necessary to attain real
efficiency in handling such applications."
S.Rep. No. 371, 90th Cong., 1st Sess., 26 (1967).
[
Footnote 19]
To the extent that
O'Shea v. United States, 491 F.2d
774 (CA1 1974), and
Norlander v. Ciccone, 489 F.2d 642
(CA8 1973), suggest that magistrates may also accept oral
testimony, provided that each party has the right to a
de
novo hearing before the district judge, we disagree. Such a
procedure is precluded by both § 2243 and § 636(b).
[
Footnote 20]
Since, under § 636(b), district judges may call upon magistrates
to relieve them of most other details of the processing of habeas
corpus applications, it does not appear that judges will be
significantly overburdened by the requirement that they personally
conduct evidentiary hearings. Indeed, data from the Administrative
Office of the United States Courts indicate that very few habeas
corpus cases ever reach the evidentiary hearing stage. In 1973, of
the 10,800 prisoner petitions filed for habeas corpus or as 28
U.S.C. § 2255 motions to vacate sentence, less than 5%, or
approximately 530, necessitated evidentiary hearings.
See
Report of the Director of the Administrative Office of United
States Courts, Table C-2, p. 325, Table C-8, p. 383 (1973). When
hearings were required, 88% were completed in one day or less.
Id. at 383. Thus, among the 400 District Judges, the
burden of evidentiary hearings averages less than 1.5 hearing days
per judge per year. To the extent that the 80 active Senior
District Judges also participate in habeas corpus cases, the
hearing burden upon each district judge is further reduced.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE WHITE joins,
dissenting.
The Court today reads two separate statutes and our prior cases
to reach a result contrary to the purposes underlying the enactment
in 1968 of the Federal Magistrates Act, 28 U.S.C. § 631
et
seq., and to the conclusion of every other Court of Appeals
which has had occasion to consider the matter. [
Footnote 2/1]
Page 418 U. S. 475
The Federal Magistrates Act was both "deigned to create an
upgraded lower tier judicial office," S.Rep. No. 371, 90th Cong.,
1st Sess., 11 (1967), and
"intended . . . to cull from the ever-growing workload of the
U.S. district courts matters that are more desirably performed by a
lower tier of judicial officers."
H.R.Rep. No. 1629, 90th Cong., 2d Sess., 12 (1968). The Court's
holding that federal magistrates may not conduct evidentiary
hearings in federal habeas corpus case is both inconsistent with
the new status of magistrates and deputy magistrates, [
Footnote 2/2] and serves to defeat the
objective of the Act,
Page 418 U. S. 476
described by Senator Tydings, its principal sponsor,
see 418
U.S. 461fn2/2|>n. 2,
supra, "to provide district
judges with more time to devote to the actual trial of cases and
the writing of opinions." [
Footnote
2/3] Hearings 3.
I
In its two-stage analysis, the Court finds first that, under the
terms of the Act, it would be "inconsistent with
Page 418 U. S. 477
the . . . laws of the United States," 28 U.S.C. § 636(b), to
permit magistrates to conduct evidentiary hearings in habeas corpus
cases. This is so, it is said, because a procedural provision of
the Habeas Corpus Act, Rev.Stat. § 761, was construed 33 years ago,
long before the enactment of the Magistrates Act, to confine that
function to judges alone.
Holiday v. Johnston,
313 U. S. 342
(1941). The 1948 revision and recodification of the Judicial Code,
which incorporated Rev.Stat. § 761 into 28 U.S.C. § 2243, is held
to have carried forward this limitation despite a critical language
change.
United States v. Hayman, 342 U.
S. 205 (1952);
Brown v. Allen, 344 U.
S. 443 (1953). Neither the new statute, its drafting
history, nor these latter cases, support the Court's
conclusion.
Section 2243 did, as the Court notes, import into its terms
Rev.Stat. § 761, both of which provisions set forth in part what
authority shall hear and determine the facts involved in an
application for a writ of habeas corpus. And § 2243 changed the
language of Rev.Stat. § 761, which originally read that the
authority was to be the "court, or justice, or judge," now to read
simply the "court." But the Court fails to note that § 2243
incorporated a second provision from the Habeas Corpus Act,
Rev.Stat. § 755, which, in part, set forth what authority shall
issue the writ of habeas corpus for which application was made. The
authority to issue the writ set forth in Rev.Stat. § 755 was
identical to that set forth in Rev.Stat. § 761 to hear and
determine the facts: the "court, or justice, or judge." Unlike the
language of Rev.Stat. § 761, however, the quoted language of
Rev.Stat. § 755 was incorporated into § 2243 substantially
unchanged; under the present statute, it is the "court, justice or
judge" who shall issue the writ.
Congress sought to make certain that only a "court, justice or
judge" could issue the writ; but by changing
Page 418 U. S. 478
the authority to hear the facts from a "court, or justice, or
judge" to, simply, a "court," Congress must have intended to
broaden the authority of the court, at least to the extent of
permitting delegation to a magistrate to perform the preliminary
hearing function, subject always to the approval of a district
judge. [
Footnote 2/4] To read the
language change in any other way would impute to Congress an intent
to alter statutory language, the meaning of which had already been
finally determined by this Court,
Holiday v. Johnston,
supra, without the knowledge that the alteration would raise
interpretive difficulties. Moreover, to change the language of
Rev.Stat. § 761, but not to change that of Rev.Stat. § 755, cannot
be said, as the Court does,
ante at
418 U. S. 469
n. 9, to be a "[m]ere change of phraseology," for such changes were
undertaken only for purposes of uniformity. If, as Charles J. Zinn,
counsel to the Law Revision Committee which revised the Judicial
Code, testified, "we have changed the language to get a uniform
style," [
Footnote 2/5] then, within
the
same statutory provision, surely Congress would have
made only "courts" able to issue writs, as well as hear the facts
of the claim.
Nor do the cases cited by the Court,
ante at
418 U. S. 469,
support its interpretation of § 2243.
Brown v. Allen,
supra, is plainly inapposite. The segment of
Brown
quoted by the Court is relevant to
Brown's discussion of
whether a petitioner under 28 U.S.C. § 2254 had a right to a
plenary hearing although an earlier petition of his which presented
substantially the same federal issues was refused in the state
court. When the Court quotes from
Brown:
Page 418 U. S. 479
"This has long been the law,"
ante at
418 U. S. 469,
it is referring to what the
Brown Court called the
"general rule" approved in
Salinger v. Loisel,
265 U. S. 224,
265 U. S. 231
(1924).
Brown, 344 U.S. at
344 U. S. 463.
Salinger, in turn, makes it clear that the "general rule"
which has "long been the law" has nothing whatever to do with who
may hear and determine the facts on an application for a writ of
habeas corpus. Rather, it pertains only to that portion of § 2243
which
Brown itself quoted, 344 U.S. at
344 U. S. 462,
and which
Salinger also quoted, 265 U.S. at
265 U. S. 231,
that is, "to dispose of [the matter or party] as law and justice
[may] require." In
Salinger, this rule meant each
application for a writ of habeas corpus could be disposed of in the
exercise of judicial discretion, which could in part give
controlling weight to "a prior refusal [by a federal court] to
discharge on a like application."
Ibid. In
Brown,
that rule was extended under certain circumstances to a prior state
court refusal to issue the writ, in support of the Court's
conclusion there that a § 2254 petitioner had no right to a plenary
hearing on his application for the writ. The rule the Court relies
on today is thus one of discretion to hold an evidentiary hearing
"as law and justice require," which has no bearing on what official
shall conduct the hearing once a decision is made to hold one.
Brown is thus no authority for the proposition that the
same limitation
Holiday placed on Rev.Stat. § 761 ("court,
or justice, or judge") applies to § 2243 ("court") enacted after
Holiday.
The Court also relies upon
United States v. Hayman,
supra, to support its interpretation of § 2243. The issue in
Hayman had nothing to do with who shall hear and determine
facts upon an application for a writ of habeas corpus. Rather, the
Court there was concerned solely with the question whether a
district court may, upon an evidentiary hearing, decide factual
issues presented
Page 418 U. S. 480
by a motion under 28 U.S.C. § 2255, where the movant was not
notified and was not present. In the context of discussing an
earlier case which had held that a district court must decide
material issues of fact by taking evidence, not by
ex
parte affidavits,
Hayman dropped a footnote stating
simply "[n]or can the factual issues be heard before a
commissioner," citing
Holiday, supra. 342 U.S. at
342 U. S. 213
n. 16. Not only was this footnote completely irrelevant to the
issue in
Hayman, its citation to
Holiday for
support, without further discussion, makes manifest that the Court
did not consider the effect of the subsequent language change in §
2243 on the statute (Rev.Stat. § 761) which
Holiday
construed. The fulfillment of the purposes of the Federal
Magistrates Act should not hang on such a slim reed.
II
Even assuming that § 2243 was intended to carry forward the
limitation of
Holiday's interpretation of its predecessor
by enacting the Magistrates Act, and particularly § 636(b) thereof,
Congress made clear its intent to eliminate that restriction. Thus,
while
Hayman may speak in terms of a "commissioner,"
Congress changed not only the title of that office, but also the
qualifications for and the functions of the office.
Section 636(b) permits federal magistrates to "be assigned . . .
such additional duties as are not inconsistent with the
Constitution and laws of the United States." The section then sets
forth in three subdivisions certain duties which district courts
may authorize by rule, but the duties "are not restricted to" those
set forth. The third illustrative subdivision provides that
district courts may authorize the additional duty of
"preliminary review of applications for post-trial relief made
by individuals convicted of criminal offenses,
Page 418 U. S. 481
and submission of a report and recommendations to facilitate the
decision of the district judge having jurisdiction over the case as
to whether there should be a hearing."
28 U.S.C. § 636(b)(3).
Subdivision (3), suggesting additional duties that may be
assigned to a magistrate in connection with federal habeas corpus
cases, does not, by its terms, permit magistrates to conduct
evidentiary hearings, but that subdivision is merely illustrative,
not exclusive.
"The mention of these three categories is intended to illustrate
the general character of duties assignable to magistrates under the
act, rather than to constitute an exclusive specification of duties
so assignable."
S.Rep. No. 371, 90th Cong., 1st Sess., 25 (1967). The House
Report virtually tracks the language of the Senate Report. H.R.Rep.
No. 1629, 90th Cong., 2d Sess., 19 (1968). Thus, there being no
constitutional barrier to permitting magistrates to conduct
evidentiary hearings, [
Footnote
2/6] nor any other legal barrier,
see 418 U.
S. supra, § 636(b) enables district courts, as
did the District Court here, to establish rules which so
permit.
Assuming,
arguendo, that § 2243 does constitute a
possible legal barrier to such rules, the legislative history of
the Act reveals Congress to have intended the elimination of that
barrier. The Court determines, in the second stage of its analysis,
ante at
418 U. S.
469-473, that Congress intended the opposite result,
but, in this matter, the Court's perception is less than
discriminating. The linchpin of the Court's argument is the
drafting evolution of the terms of subdivision (3), quoted above.
In the change of language from preliminary "consideration" to
preliminary
Page 418 U. S. 482
"review," [
Footnote 2/7] and in
the addition of "as to whether there should be a hearing,"
[
Footnote 2/8] the Court finds an
intent to bar magistrates from conducting a hearing. But the
language changes in the subdivision were made only due to a fear
that magistrates would be thought to have been given final
adjudicatory power, not to preclude them from conducting hearings
when the district judges retained such power. [
Footnote 2/9] Indeed, the latter was specifically
intended. As the Senate Report stated, § 636(b)
"contemplates assignments to magistrates under circumstances
Page 418 U. S. 483
where the ultimate decision of the case is reserved to the
judge. . . ."
S.Rep. No. 371, 90th Cong., 1st Sess., 26 (1967). The concern
about enabling magistrates to make the ultimate decision found
early expression in the Senate hearings on the bill in a colloquy
between Senator Tydings and then Assistant Attorney General Vinson.
Mr. Vinson ultimately revealed his real concern in a letter to the
Subcommittee that subdivision (3) as originally drafted would give
the power of ultimate decision to the magistrate: "[I]f preliminary
consideration is intended to involve adjudication, it should be
handled by an Article 3 Judge." Hearings 130. That the Senate
viewed Mr. Vinson's objections in this light is made clear by
Senator Tydings' testimony in the hearings before a subcommittee of
the House Judiciary Committee. Hearings on S. 945
et al.
before Subcommittee No. 4 of the House Committee on the Judiciary,
90th Cong., 2d Sess., 72 (1968).
In response to this objection, Senator Tydings stated to Mr.
Vinson at the Senate hearings:
"We wouldn't intend for the final decision to be made by the
magistrate.
But we would intend that . . . the magistrate [be
able to] hold a preliminary [habeas] hearing. . . . We
certainly intend that."
Hearings 112. (Emphasis added.) Numerous other witnesses at the
Senate hearings urged that the magistrates be permitted to hold
hearings.
See,
Page 418 U. S. 484
e.g., id. at 52 (Chief Judge Northrop,
supra,
418
U.S. 461fn2/3|>n. 3);
id. at 94 (Chief Judge Walter
E. Hoffman, of the Eastern District of Virginia).
As the Court points out,
ante at
418 U. S.
470-471, the Judicial Conference objected to the
original draft bill (S. 3475), but it did not originally object to
subdivision (3), as the Court states. Instead, the Conference
objected to § 636(b) altogether, fearing it so broad as to be
subject to constitutional attack. Although not specified, it seems
clear that, by speaking in terms of "delegation," the Conference
initially shared Mr. Vinson's concern about delegating the ultimate
decisionmaking power of Art. III judges. Hearings 241n. The
Judicial Conference therefore recommended both a modified version
of § 636(b) and the complete elimination of all three subdivisions.
Ibid. When the revised draft bill (S. 945), which
ultimately was enacted, was introduced, it did not follow the
Judicial Conference recommendation, but continued to include the
three subdivisions. As to subdivision (3), the Judicial Conference
recommended the addition of the phrase "as to whether there should
be a hearing,"
see 418
U.S. 461fn2/7|>n. 7,
supra, but again stressed that
its concern was, as with S. 3475, over the "delegation to
magistrates." Hearings 245.
The tension established in this evolution is clear. On the one
hand, Congress sought to enable district court to authorize
magistrates to conduct evidentiary hearings. On the other hand,
there was apprehension that the power of authorization granted to
district courts might lead to a rule permitting magistrates to
exercise ultimate decisionmaking power reserved exclusively to Art.
III judges. To avoid the latter but accomplish the former, Congress
persisted in retaining the broad language of § 636(b), and in
retaining subdivision (3). Not only, as set
Page 418 U. S. 485
forth earlier, does the subdivision not limit the subsection, it
was drafted in language to insure that it could not be read to
preclude authorizing magistrates to conduct hearings in federal
habeas corpus cases. [
Footnote
2/10]
Plainly, Congress could have used language that expressly
precluded the latter. That this was not urged upon Congress by
anyone, including the Judicial Conference, and that Congress did
not include such language, alone suggests its intention to vest in
district courts the power to authorize magistrates to hold
hearings. Conversely, Congress would have taken certain risks had
it expressly permitted magistrates to hold hearings, as revealed by
the following colloquy between Chief Judge Hoffman and Senator
Tydings at the Senate hearings:
"Judge Hoffman. . . . And I have suggested in my statement . . .
that the Federal magistrate could be assigned the task as a master
to conduct plenary hearings. After all, [habeas corpus proceedings]
are civil proceedings . . . not criminal proceedings."
"
* * * *"
"Senator Tydings. [S]ince we . . . don't have [in § 636(b)]
'Including hearings' or 'Including plenary hearings,' or 'including
the conducting of plenary hearings,' it is not what we should
have?"
"Judge Hoffman. I am fearful that someone will say that this is
merely an effort on the part of the judge to delegate his judicial
function."
"Senator Tydings. I think that is a good point, Judge
Hoffman."
Hearings 93-94.
In light of the need for Congress to avoid language suggesting
an unconstitutional delegation of a judicial
Page 418 U. S. 486
function to a magistrate, the ambiguous provision of § 636(b) --
unlimited by the provisions of subdivision (3) -- should be
interpreted to permit magistrates to conduct evidentiary hearings
in federal habeas corpus cases, § 2243 notwithstanding, because (1)
to the extent the subject was expressly discussed in the
legislative history, such permission was intended, and (2) such an
interpretation would serve the two principal objectives of the Act.
See nn.
418
U.S. 461fn2/2|>2 and
418
U.S. 461fn2/3|>3,
supra.
III
The final limitation of the Act, that additional duties assigned
to magistrates must not be "inconsistent with the Constitution,"
needs little discussion here. The Court does not suggest that the
conduct of an evidentiary hearing, where the district judge retains
the power to make the final decision on an application for a writ
of habeas corpus, would be unconstitutional either under Art. III
or as a matter of due process of law. Where this situation obtains,
the magistrate's conduct of the hearing would be clearly
constitutional. [
Footnote
2/11]
Page 418 U. S. 487
Not only would his report and recommendation to the district
judge be subject to amendment or outright rejection, the district
judge could, at the behest of the habeas corpus petitioner or on
his own motion, conduct his own evidentiary hearing to judge for
himself, for example, the credibility of witnesses if he deems
their testimony essential to disposition of the application. To the
extent a problem of constitutional magnitude may be foreseen in the
particulars of the rules established by a district court, those
rules can be construed to comport with constitutional requirements.
In any event, now that the Court has construed the Magistrates Act
contrary to a clear legislative intent, it is for the Congress to
act to restate its intentions if its declared objectives are to be
carried out.
[
Footnote 2/1]
Two Circuits have ruled that federal magistrates may conduct
evidentiary hearings in federal habeas corpus cases,
O'Shea v.
United States, 491 F.2d 774, 778 (CA1 1974);
Noorlander v.
Ciccone, 489 F.2d 642, 648 (CA8 1973);
cf. Campbell v.
U.S. District Court, 501 F.2d 196, 205 (CA9 1974), while two
Circuits have assumed magistrates have that power,
United
States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 798 (CA2
1973);
Parnell v. Wainwright, 464 F.2d 735, 736 (CA5
1972).
[
Footnote 2/2]
The Court makes clear,
ante at
418 U. S. 473
n. 18, that it sees the function of the magistrate in dealing with
habeas corpus petitions as being no more than that previously
performed by law clerks. As Chief Judge Theodore Levin, of the
Eastern District of Michigan, testified before the Senate Judiciary
Committee's Subcommittee on Improvements in Judicial Machinery,
which, under the chairmanship of Senator Joseph D. Tydings, began
the investigative hearings in 1965 which led to the enactment of
the Act three years later, law clerks are not overworked, and are
better able to perform such tasks.
"In any event, this is a somewhat tedious job . . . and is not a
function likely to entice a seasoned and competent lawyer to accept
a magistrate's job."
Hearings on S. 3475 and S. 945, 89th Cong., 2d Sess. (1966) and
90th Cong., 1st Sess. (1967), p. 61 (hereinafter Hearings). The Act
specifically sought to make "the position [of magistrate] more
attractive to highly qualified individuals." S.Rep. No. 371, 90th
Cong., 1st Sess., 11 (1967). The Department of Justice agreed that
such a limited function would be inconsistent with the Act's
purpose, Hearings 130, and Chief Judge Robert C. Belloni and Dean
Robert B. Yegge have noted that the magistrates "should not be
simply high-paid law clerks." Reports of the Conference for
District Court Judges, 59 F.R.D. 203, 221 (1973). To limit a
magistrate to a law clerk's function surely undercuts what Senator
Tydings stated to be
"[t]he first goal of the Magistrates Act . . . to [give the
magistrate] qualifications and a stature higher than those of the
present U.S. commissioner."
Hearings 26.
[
Footnote 2/3]
No one would dispute the heavy burden on district courts
represented by the applications for habeas corpus writs they
receive, a large volume of which has been long recognized as
"repetitious and patently frivolous."
United States v.
Hayman, 342 U. S. 205,
342 U. S. 212
(1952) (footnote omitted). The Court would minimize the burden of
these applications at the evidentiary hearing stage,
ante
at
418 U. S. 473
n. 20, but the beguiling simplicity of its statistical analysis
obscures reality, and is antagonistic to the interests of habeas
petitioners. First, to average hearing days per judge per year
evenly across the country fails to recognize the uneven number of
habeas corpus applications received by the various district courts.
In his testimony at the Senate hearings on the bill, Chief Judge
Edward S. Northrop, of the District of Maryland, reflected the
unevenness experienced by his court, which at one time handled more
"State prisoner habeas corpus petitions . . . than any other
district in the country." Hearings 52. Clearly Chief Judge
Northrop's burden would have exceeded "1.5 hearing days . . . per
year." Second, the habeas corpus applications which ultimately
reach the hearing stage do not represent all those which might
warrant a hearing. Senator Tydings stated:
"We say that the magistrate should be able to [hold] plenary,
discovery hearings. Now, what happens . . . , as a practical
matter, you get no hearings. The law clerk reviews the papers . . .
so we are giving the individual [petitioner] actually an
opportunity . . . for more consideration than he gets now."
Id. at 113. Finally, even if no more applications would
warrant an evidentiary hearing, given the other burdens on district
judges those applications which would warrant hearings would
receive more prompt attention if magistrates were to hold them. The
virtues of speedy justice need not be elaborated here.
[
Footnote 2/4]
As noted in
418 U. S.
infra, it is not urged by anyone that the magistrate may
finally decide facts after conducting an evidentiary hearing. That
ultimate decision is, without question, one reserved to the
district judge alone.
[
Footnote 2/5]
Hearings on H.R. 1600 and H.R. 2055 before Subcommittee No. 1 of
the House Committee on the Judiciary, 80th Cong., 1st Sess., 40
(1947)
[
Footnote 2/6]
No such barrier is suggested by the Court today, and properly
framed, district court rules which so permit would not contravene
the constitutional rights of federal habeas corpus petitioners.
See 418 U. S.
infra.
[
Footnote 2/7]
The two words were, in fact, used interchangeably in the
legislative history. When the draft bill (S. 3475) used the word
"consideration," the Subcommittee Staff Memorandum in support of
the bill used the word "review." Hearings 34. When the draft bill
was changed to use the word "review," the Senate Report
accompanying the new bill (S. 945) used the word "consideration."
S.Rep. No. 371, 90th Cong., 1st Sess., 8 (1967).
[
Footnote 2/8]
Despite the addition of this language, the House Report, in
setting forth the enumerated examples of § 636(b), stated of
subdivision (3) only that
"[m]agistrates may also be assigned the function of reviewing
and reporting to district judges upon applications for
post-conviction relief."
H.R. Rep. No. 1629, 90th Cong., 2d Sess., 19 (1968). No
limitation on the nature of the review or report was indicated. The
language of the Senate Report also made no reference to decisions
whether there should be hearings. S.Rep. No. 371,
supra,
at 26.
[
Footnote 2/9]
The Court twice makes reference,
ante at
418 U. S. 471
n. 11, and
418 U. S. 472
n. 17, to Note, Developments in the Law -- Federal Habeas Corpus,
83 Harv.L.Rev. 1038, 1188-1189, and n.229 (1970), in support of its
position. Both references are mistakenly addressed to final
decisionmaking power, not the power to conduct hearings where the
district judge makes the ultimate decision. The Note itself
concedes that "[i]t is possible to argue [under § 636(b)] that a
plan to have magistrates actually hear cases is valid under the
Act."
Id. at 1189 n. 229. It then argues the other way in
reference to matters as to which magistrates have final power of
decision.
See 28 U.S.C. § 636(a)(3). That is the only
power of magistrates circumscribed by the procedures to which the
Court refers,
ante at
418 U. S.
470-471, n. 11. To the extent the Court goes beyond the
Note and argues that magistrates' service as special masters, 28
U.S.C. § 636(b)(1), is limited by Fed.Rule Civ.Proc. 53(b), the
early strictures upon employing special masters were developed
before the existence of the judicial office of magistrate, and
arguably should not be applied to that new office.
See
generally Comment, An Adjudicative Role for Federal
Magistrates in Civil Cases, 40 U.Chi.L.Rev. 584 (1973).
[
Footnote 2/10]
Even counsel for respondent agrees (contrary to the Court's
conclusion,
ante at
418 U. S. 470)
that subdivision (3) "could have been more clearly expressed." Tr.
of Oral Arg. 20.
[
Footnote 2/11]
The commentators have generally agreed with this conclusion.
Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87
Harv.L.Rev. 321, 365 (1973); Peterson, The Federal Magistrate's
Act: A New Dimension in the Implementation of Justice, 56 Iowa
L.Rev. 62, 98 (1970); Doyle (District Judge and Chairman of the
Judicial Conference Committee charged with implementing the Act),
Implementing the Federal Magistrates Act, 39 J.B.A.Kan. 25, 69
(1970); Note, Proposed Reformation of Federal Habeas Corpus
Procedure: Use of Federal Magistrates, 54 Iowa L.Rev. 1147 (1969).
So, too, would the Judicial Conference appear to be in agreement.
Proposed Amendments to the Proposed Rules Governing Habeas Corpus
Proceedings for the United States District Courts, Committee on
Rules of Practice and Procedure, Rule 11 (Preliminary Draft,
Jan.1973). Congress has given the magistrates power to conduct
trials of a limited nature, 28 U.S.C. § 636(a)(3), which grant of
power, carefully limited, appears not to contravene any
constitutional prohibition.
Cf. Palmore v. United States,
411 U. S. 389
(1973).
A fortiori, granting magistrates the power to
conduct hearings where the district judge retains ultimate
decisionmaking authority comports with constitutional requirements.
Cf. Campbell v. U.S. District Court, 501 F.2d 196 (CA9
1974) (hearings on motion to suppress);
Harlem River Consumers
Coop., Inc. v. Associated Grocers of Harlem, Inc., 54 F.R.D.
551 (SDNY 1972) (hearings on discovery motion).