WINGO v. WEDDING

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Argument of James M. Ringo

Chief Justice Warren E. Burger: We’ll hear our arguments next in 73-846 Wingo against Wedding.

Mr. Ringo, you may proceed whenever you’re ready.

Mr. James M. Ringo: Mr. Chief Justice, and may it please the Court.

The issue before this Court today in this case is whether US Magistrates are empowered by the Federal Magistrates Act of 1968 to conduct the evidentiary hearings in habeas corpus cases.

I would like to first briefly tell how the case got to this Court today.

In 1971, the Respondent, Carl James Wedding, after exhausting all his available state postconviction remedies, filed a petition in US District Court for the Western District of Kentucky, claiming that his 1949 conviction for willful murder was invalid based on contention of court’s plea of guilty, in effective assistance of counsel.

The District Court reviewed his petition and summarily dismissed as being without merit.

A certificate of probable cause was granted.

The respondent, Mr. Wedding, then appealed to the Sixth Circuit Court of Appeals.

The Sixth Circuit reversed and remanded the District Court’s decision saying that the petition presented certain factual questions which require an evidentiary hearing.

On remand, the matter was assigned to the US Magistrate to conduct the evidentiary hearing.

The evidentiary hearing was conducted by the Magistrate and recorded by electronic sound recorder.

The Magistrate, in conducting the hearing concerning all the pleadings and all available state records, made a finding of fact, proposed findings of fact and conclusion of law, report and recommendation that the petition of Mr. Wedding be dismissed.

The District Court upon request by counsel for Respondent, Mr. Wedding, gave the double considerations of recorded testimony, electronically recorded testimony of the hearing.

Thereafter, the District Judge after reviewing all of the pleadings, they recorded all the considerations of recording of the evidentiary hearing, adopted the Magistrate’s findings of facts, conclusions of law, report and recommendation as his own and dismissed the petition.

Whereupon, the respondent once again appealed to the Sixth Circuit and the Sixth Circuit reversed again, stating that US Magistrates are not empowered by the Federal Magistrates Act to conduct the evidentiary hearings in habeas corpus case.

We submit that the Magistrates are empowered by the Section 636 (b) of the Federal Magistrates Act to conduct the evidentiary hearing of posttrial cases.

636 (b) in substance states that by concurrence of the majority of the judges of the District Court, they can adopt assigned additional duties to the US Magistrates, so long as they are not inconsistent with the constitutional laws of the United States.

Inherent in this language are two limitations on the duties assignable to the Magistrate: First, the Magistrate may act only pursuant to a rule passed by a majority of the judges of the District Court, as was done in this case; and two, the duties so assignable must be consistent with the constitution and laws of the United States.

Chief Justice Warren E. Burger: Does the rule of the District Court not also provide that either party, upon request, may require the district judge to hear and listen to the transcript of the testimony?

Mr. James M. Ringo: Yes, that’s true Your Honor.

Chief Justice Warren E. Burger: You may have said but if you did I missed it.

Mr. James M. Ringo: I didn’t say that, but it’s true.

These limitations which I have just mentioned are recognized by the drafters of the proposed rules governing Habeas Corpus Proceeding which is presently before the standing Committee on Rules and Practice and Procedure of the Judicial Conference of the United States.

These proposed rules give Magistrates the power to conduct evidentiary hearings in habeas corpus cases citing Section 636 (b) as authority.

We submit that allowing US Magistrate to conduct evidentiary hearings in habeas corpus proceedings is not inconsistent with the constitution or laws of United States.

The respondent and the --

Justice Harry A. Blackmun: Mr. Ringo, do you know that the US Magistrate have to be a lawyer?

Mr. James M. Ringo: The act requires Your Honor that the full-time US Magistrate should be a lawyer except in situations where they are not available in the districts.

Justice Harry A. Blackmun: So, he might not be?

Mr. James M. Ringo: That’s right, Your Honor.

Justice Harry A. Blackmun: So you might have a situation where US Magistrate is proposing the findings and conclusions when he is not a lawyer, even though a conviction for instance has been affirmed up through the Kentucky Court System.

Does this bother you at all?

Mr. James M. Ringo: In the instant case, it does not, because our Magistrate was a lawyer.

The duty of appointing the Magistrate is upon the concurrence of the majority of the district judges and I would submit that the judges would select a very qualified case in the event that there were no lawyers.

Chief Justice Warren E. Burger: Do you know whether there are any full-time Magistrates in the United States who have been appointed now serving who are not lawyers?

Mr. James M. Ringo: I have no statistics on that.

I know but that the US Commissioner system, which this system replaced that 30% were not lawyers.

The respondent in the Sixth Circuit denies this position that the Magistrate Act is inconsistent with the Habeas Corpus Act in constructing two statutes unlike service.

It is necessary to look to the intent and purpose of both acts.

The intent and purpose of the Habeas Corpus Act was to determine the legality of the intention of the person held and restraint of his liberty.

Now the intent of the Magistrate Act in respect to the habeas corpus petitions, it was clearly that the intention of Congress to have Magistrates assists the overburdened -- the courts which are overburdened by habeas corpus applications.

By reviewing habeas corpus applications and conducting evidentiary hearings, if necessary, in order that the judge might have before him all the facts and circumstances surrounding the petition to facilitate his ultimate determination of the fact of the petition.

In order that this new tier of judicial office which was created by the Magistrate Act of 1968, in order that they might be able to perform this function, Congress upgraded the old Commissioner System not only in position but in the qualifications so that Magistrates would be qualified to adequately perform this must needed assistance to the judges of their crowded dockets of habeas corpus petitions.

For this reason, we submit that the Magistrates Act is consistent with the Habeas Corpus Act and actually forces or supports its purpose and intent, and that it ensures that the person was illegally -- who is detained is getting upon determination as to the legality of his restraint of his liberty.

Justice Harry A. Blackmun: Mr. Ringo, what comment do you have about the provision in 636 (b) (3) zeroing in on preliminary review of applications for posttrial relief, and enough with -- to facilitate the decision of a district judge having jurisdiction over the case has whether there should be a hearing?

Mr. James M. Ringo: The intention of Congress on that 636 (b) subsection (3) was clear that this was merely a suggested rather than a required duty.

Therefore, it is not exclusive on the subject of ways on which the Magistrates might be using habeas corpus proceeding.

The Congress intended to make this 636 (b) purposely broad and flexible in order that the judges might be able to utilize the Magistrates to the efficiency of the District Court.

Chief Justice Warren E. Burger: Well, I suppose a district judge might after listening to the reading of the proposed finding, the report and recommendations and listening to the electronic recording might then decide to conduct a full-scale hearing himself.

Mr. James M. Ringo: Well, that’s where within his providence the district judge can accept, reject, demand, or do what he wants to with the Magistrates report, findings of facts, conclusion of low and so forth.

So we submit also that the Magistrates Act is not inconsistent with the constitution.

The argument has been made in respect to Article III of the Constitution.

Article III vests the judicial power in the Supreme Court and other inferior courts as the District Court.

Justice Harry A. Blackmun: Did the Sixth Circuit touch upon the constitution issue at all, or did they decide as a matter of statutory construction?

Mr. James M. Ringo: Primarily, statutory construction -- I mean if they are ever used in generous --

Justice Harry A. Blackmun: And if we should disagree with them, do you think then that the case should be remanded to have them considered constitutional issue in the first place?

Mr. James M. Ringo: The constitutional issue should be considered.

As far as the constitution is concerning Article III, the Congress stated that it was their intention that the Magistrate was not to have any power to make the ultimate determination of fact, and we concede this point that the ultimate determination of fact must be made by the Article III Judge himself.

Justice William H. Rehnquist: What sort of a proceeding do you have before Judge Gordon in the District Court after the Magistrate has made findings like these?

Did you have oral argument?

Mr. James M. Ringo: In this case there were no oral arguments.

Justice William H. Rehnquist: How did the matter go up to them, the report of the Magistrate and briefs of the parties?

Mr. James M. Ringo: The matter was before the Court on a petition in response to the petition that came back on a Sixth Circuit on the first reverse and remand.

The evidentiary hearing was held.

Assessment to the evidentiary hearing, our office can have copies of all the available state proceedings, and from there, the judge considered de novo the recorded testimony, the available state records which were submitted to the Court and all the previous pleadings, and therein he adopted the findings of facts and conclusions of law of the Magistrate as his own.

Justice William H. Rehnquist: Did the parties have an opportunity to brief or object to the findings of the Magistrate before Judge Gordon?

Mr. James M. Ringo: I don’t believe that there was any objection, any objection made by the party.

For the foregoing reasons, because the assigned additional duty to the US Magistrate of conducting an evidentiary hearing in habeas corpus proceeding is neither inconsistent with the constitution and laws of the United States and we submit that this may be done.

Justice Thurgood Marshall: And judge can never (Inaudible), never saw them and never had them testified?

Mr. James M. Ringo: That’s true.

Justice Thurgood Marshall: How could he weight the evidence?

Mr. James M. Ringo: He can consider the evidence in light of the state records, he gave a de novo consideration --

Justice Thurgood Marshall: What was the sense of having an evidentiary hearing?

Mr. James M. Ringo: To get before the Court all the facts and -- this is why the Congress set up the judicial tier of Magistrates.

Justice Thurgood Marshall: I thought the Constitution set up Article III Judges.

Mr. James M. Ringo: We submitted that Article III Judges are vested with the judicial power of the United States or the power to decide.

The Congress upgraded the system as the Magistrates --

Justice Thurgood Marshall: Did they upgrade them to Article III Judges?

Mr. James M. Ringo: No, Your Honor.

Justice Thurgood Marshall: Well, how far?

Mr. James M. Ringo: They went far enough to give in the qualifications which would enable them --

Justice Thurgood Marshall: So that what he could do is take the transcript of the testimony, the tapes of the hearing, the recommendations of the Magistrate and just sign the recommendations and not change a word of them.

Mr. James M. Ringo: If he thinks that they are adequately prepared.

Justice Thurgood Marshall: And that’s your argument in Article III judge?

Mr. James M. Ringo: No, Your Honor.

Justice Thurgood Marshall: Not mine neither.

Mr. James M. Ringo: They have upgraded the --

Justice Thurgood Marshall: Of the judge, I am not going to the Magistrates.

I don’t think it’s an Article III Judge who lets a Magistrate determine for him what the findings ought to be.

Mr. James M. Ringo: It was the intention of --

Justice Thurgood Marshall: Am I wrong?

Isn’t that his job to make his own finding?

Mr. James M. Ringo: It’s his job to determine the ultimate fact.

The Congress intended to upgrade the qualifications of Magistrates in order that he might be vested with certain investigatory powers, so to speak, in order that he could facilitate the decision of the judge, but the problem with an overburdened habeas corpus applicants is the fact that the judge does not have to run all the wheat from the chaff, so to speak, of all his applications.

This is the purpose of the Congress intended for the Magistrate to be able to perform.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Ringo.

Mr. Glass.

Argument of Joseph G. Glass

Mr. Joseph G. Glass: Mr. Chief Justice, and may it please the Court.

It is the respondent’s contention that the decision of the District Court of the Sixth Circuit Court of Appeals should be affirmed.

We have contended throughout these proceedings from the very inception that the language of the 28 U.S.C. 636 (b) (3) is very clear and very explicit.

In that it provides for a preliminary review by the Magistrate of postconviction and posttrial proceedings and it provides for a report and recommendations as to whether there should be an evidentiary hearing.

And it has been our contention that the language is very clear on that, that it doesn’t provide that the Magistrate may hold himself in evidentiary hearing.

Chief Justice Warren E. Burger: Well, what do you think Section (2) of the statute means, “Assistance to a trial judge in the conduct of pretrial or discovery proceedings in civil or criminal?”

Do you think that would embrace a pretrial proceeding for the suppression of evidence or not?

Mr. Joseph G. Glass: No sir.

I do not think it does embrace a suppression of --

Chief Justice Warren E. Burger: Well, what criminal matters, what pretrial criminal matters do you think Section (2), subsection (2) covers?

Mr. Joseph G. Glass: I would think that -- It’s my impression Mr. Chief Justice that that would encompass something like a pretrial conference, whereby the party litigants through counsel --

Chief Justice Warren E. Burger: Do you have many pretrial conferences in civil cases?

Mr. Joseph G. Glass: Yes, sir in our --

Chief Justice Warren E. Burger: In criminal cases, I mean to say?

Mr. Joseph G. Glass: There are few.

There are not many.

Chief Justice Warren E. Burger: Well, are they directors of the suppression type motion?

Mr. Joseph G. Glass: Many of them are the suppression type of motions or motions on the constitutionality of statutes and things of that matter.

But from time to time, there are conferences with the court on legal matters and criminal cases.

Justice William H. Rehnquist: Why is it that you say that a Magistrate couldn’t hear a suppression matter under the paragraph (2).

It seems to cover it by its terms, doesn’t it?

Mr. Joseph G. Glass: As I interpret Criminal Rule 41 and as I have read the cases, that’s within the providence of a District Court Judge and that is a fact-finding process, and I think that’s what we’re talking about here in these proceedings, fact-finding processes.

Justice William H. Rehnquist: Well, but paragraph (1) of the rule talks about services of Special Master in an appropriate civil action. Certainly that is a fact-finding.

Mr. Joseph G. Glass: Yes, sir.

That’s an advisory position but it’s not an evidentiary position.

Chief Justice Warren E. Burger: Well, is this not advisory when the report is subject to requiring the judge to listen to the tape recording?

Mr. Joseph G. Glass: Not as this Court, in 1941, interpreted Holiday versus Johnson and later, in 1963, interpreted Townsend versus Sain when it talked about the demeanor of witnesses and the credibility of witnesses.

That’s within the providence I think of the district judge.

Chief Justice Warren E. Burger: Well, if a challenge has made there, is there anything in the statute that prevents the judge from saying, if the -- after he has listened to the tape recording that I think there are serious and possibly difficult questions of credibility here and so will set this down for a hearing.

Do you think that’s what Section (3) refers a district judge can do.

Mr. Joseph G. Glass: The rule 636 -- of our local rule?

Chief Justice Warren E. Burger: No, Section (3) of the statute.

Mr. Joseph G. Glass: Yes sir.

I am sure that’s correct.

Chief Justice Warren E. Burger: And the submission of the language which I am referring to and the submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether or not there should be a hearing.

Now, could the judge not been sat down and (Voice Overlap)

Mr. Joseph G. Glass: Well, I think that’s the purpose of the Act was intended for the Magistrate to be recommending agency and not an evidentiary hearing judge.

Chief Justice Warren E. Burger: Well, but do you mean the judge must have a hearing in every case after the Magistrate has had a hearing?

Mr. Joseph G. Glass: No, sir.

Habeas corpus doesn’t provide that a judge must hold hearing in every case nor it’s our contention Mr. Chief Justice that the Magistrates Act does not authorize an evidentiary hearing in any case by the Magistrate that this is within the providence of a district judge.

Now, there are certain things that he can do.

I think the legislative history of the Act goes a long way towards explaining when it says to alleviate the judge from having to do the routine.

Justice William J. Brennan: Well that go at least as far as having the Magistrate sufficiently examine the matter that to be able to say to the district judge, “It’s my recommendation to you don’t have a hearing.”

Mr. Joseph G. Glass: I think that’s permissible because lower courts have been functioning in that capacity for years.

That’s an advisory.

Justice William J. Brennan: But he can’t -- in your submission that he can’t and so the Sixth Circuit held.

He can’t go beyond that and conduct the actual evidentiary hearing and submit the record of that evidentiary hearing to the judge.

Mr. Joseph G. Glass: That is our contention Your Honor based on Holiday versus Johnson and actually Townsend versus Sain when it talks about the providence of the district judge’s weigh the credibility and demeanor of the witnesses which is unquestionably very important, and perhaps, in many instances, the most important step in the habeas corpus matter as such.

Justice Byron R. White: What about the special masters that district court judges appoint in particular cases to take evidence?

Mr. Joseph G. Glass: To take evidence in civil cases Your Honor, that’s -- I am not that familiar with, in criminal cases they are not allowed, and then going back to Holiday versus Johnson 1971, Payne versus Wingo when our Sixth Circuit held at the special master, and in this case, it was the duly appointed United States Commissioner.

That’s at 442 Fed 2d --

Justice Byron R. White: Well, I understand that, but how about a civil case special master?

Mr. Joseph G. Glass: In a civil case, he is allowed under the laws as I have read them Mr. Justice White to take depositions and things of that nature, but within an evidentiary --

Justice Byron R. White: But he is entitled to take evidence and prepare report.

Chief Justice Warren E. Burger: -- and submit findings.

Mr. Joseph G. Glass: As an adviser.

Justice William J. Brennan: To which there are exceptions then by a counsel?

There is an argument on the exceptions before the judges, not the usual fact?

Mr. Joseph G. Glass: Mr. Justice Brennan, both the petitioner and the respondent have cited cases for example TPO, Inc.

which have held that there are only certain things in the civil nature that the Magistrate can do, but they cannot be a part of the decision-making process.

Justice William H. Rehnquist: The masters, the masters, I am been talking about the masters.

Mr. Joseph G. Glass: Well, here again, I think, it can’t be part of the decision-making process.

Justice Byron R. White: But nevertheless, there will be special masters appointed and the evidence will be taken by the special master and the judge will ultimately determine the facts without ever having seen the witnesses.

Mr. Joseph G. Glass: Well, in civil proceedings, I have less concerned about that than I do --

Justice William H. Rehnquist: Well, this is a civil proceeding.

Justice Byron R. White: But isn’t the case, isn’t that true, isn’t it true that that’s what happens on the civil side with special master?

Mr. Joseph G. Glass: I am not that knowledgeable Mr. Justice White to really give you a good answer on that.

Chief Justice Warren E. Burger: Are not all the cases in the United States Court of Claims cases that involve many millions of dollars, tried just that way?

Mr. Joseph G. Glass: Yes, sir.

As I understand --

Chief Justice Warren E. Burger: The Commissioner who makes a report and recommendations, and the Court then reviews it and decides to accept or reject.

Mr. Joseph G. Glass: I am reading some of the background on habeas corpus as this is my understanding, but here again, some of the authors and I believe that’s been covered in (Inaudible) Jury Trials and article by Mr. Skoku (ph) and also an 83 Harvard Law Review that has defined this type of proceedings as advisory proceedings.

It’s my recollection.

Justice William H. Rehnquist: This is a civil proceeding that we are reviewing hear, isn’t it?

And Federal habeas is a civil act?

Mr. Joseph G. Glass: It’s denominated as such Mr. Justice Rehnquist but I don’t think it’s fully -- I would go back to legislative history on that where Mr. Fred Vinson had some colloquy --

Chief Justice Warren E. Burger: Mr. Carl Vinson supposedly.

Mr. Joseph G. Glass: Mr. Fred Vinson.

Chief Justice Warren E. Burger: Judge Fred Vinson?

Mr. Joseph G. Glass: Yes sir.

Justice Byron R. White: Well, but he -- do you think he prevailed or -- [Laughter]

Justice William J. Brennan: As I gather, Senator Tydings gave him rather a difficult time, well, didn’t he?

Mr. Joseph G. Glass: Yes sir, he sure did but --

Chief Justice Warren E. Burger: Didn’t he say in response to one question when Mr. Vinson said, he assumed that he did not intend to cover some of these things.

The answer was, we certainly intend that; we intend to lift this off to the shoulders of the judges -- to lift off this to the shoulders of the judges as much of the routine nature of discovery or fact-finding operation connected with postconviction proceedings and petitions as possible.

So the Congress was presented with the two conflicting views and seems to have adopted Senator Tydings field master.

Mr. Joseph G. Glass: Yes, sir.

If the court please, I subscribe to Mr. Vinson.

Justice William J. Brennan: I suppose really your emphasis on Holiday, you get back to the fact that the words used to be Court Justice or Judge.

Mr. Joseph G. Glass: Yes, sir.

Justice William J. Brennan: And then the Congress amended it just to make it court.

Mr. Joseph G. Glass: Yes, sir.

Justice William J. Brennan: And yet your circuit at least said that, that made no change and obviously, whatever else might be to the Magistrates Act -- I mean Habeas Corpus Act always said court, meant court.

And that made an Article III Court.

Mr. Joseph G. Glass: 28 U.S.C. 2243 speaks in specific.

Justice William J. Brennan: That’s really the gist of it, and I guess that -- I gather that’s actually the basis for Sixth Circuit both in this case and in Wingo?

Mr. Joseph G. Glass: Yes sir, and here again going back to the legislative history, initially, when the statute was drafted, it provided for preliminary consideration rather than preliminary review and because of all of the evidence that came out as a result of the hearings, they have redrafted the legislation to a preliminary review for of posttrial.

Justice Harry A. Blackmun: But the statute certainly (Inaudible)?

Mr. Joseph G. Glass: Unquestionably.

Justice Harry A. Blackmun: So, Mr. Glass, what is your comment about the provision and the statute that giving the Magistrate the power to conduct certain trials under Section 3401 of the Code, if he has that power, what is so wrong with giving him the power to conduct a preliminary hearing?

Mr. Joseph G. Glass: Mr. Justice Blackmun, there are some provisions in that statute which I think are important for this Court to consider.

Number one, the Magistrate in those federal crimes statute has jurisdiction over those crimes, which are normally denominated as misdemeanors up to a year, carrying up to a year in the penitentiary up to $1,000 fine or both.

However, there is also the provision that the defendant and the Government have to agree to the trial before the Magistrate, and there is also of course the right of appeal to the District Court.

But I think that’s a very important distinction because not only does it take the agreement of the parties but the Magistrate only has that limited jurisdiction.

Whereas, if this Court were to hold that the Magistrate have the authority to hold evidentiary hearings, he would be weighing the liberty of persons filing habeas corpus who are incarcerated for a much more lengthy period of time as, for example, the respondent in this case who is under a life sentence.

Justice Thurgood Marshall: Mr. Glass, how far do you think the Magistrates can go on a habeas?

Mr. Joseph G. Glass: On a habeas?

I would suggest Mr. Justice Marshall that he can review the pleadings; that he can appoint counsel when necessary; that with the aid of counsel, he can define the legal issues; that with the aid of counsel, he can set out an order of proof for the evidentiary proceedings if that should be necessary; that he can submit a summary of the case to the district judge; and that with the aid of counsel on both sides, he can project the length of the hearing that might be required before the District Court.

Chief Justice Warren E. Burger: Can he recommend that no hearing is necessary?

Mr. Joseph G. Glass: Certainly, I think that is within the district judge --

Chief Justice Warren E. Burger: And if the judge doesn’t -- if the judge accepts that, then you see no problem with it?

Mr. Joseph G. Glass: If he is recommending as a matter of law, I don’t think there’s anything that -- I think he is authorized to do that under the Act.

Justice William H. Rehnquist: Mr. Glass, did you object during the proceedings before the Magistrate that he was not empowered or ought not to be conducting to serve the hearing.

Mr. Joseph G. Glass: In the point of fact Mr. Justice Rehnquist, I filed a motion, a lengthy motion with the memorandum brief to disqualify the Magistrate from holding the evidentiary hearing prior to it and I --

Justice William H. Rehnquist: Is this that in the records somewhere?

Mr. Joseph G. Glass: Yes, sir and it’s contained in the Appendix on Pages 15, 16 and the memorandum, the 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27.

Unknown Speaker: And that was all on the ground that you submitted the Magistrate had no authority to do that?

Mr. Joseph G. Glass: That’s correct Your Honor.

Unknown Speaker: Not on any reason for him personally.

Mr. Joseph G. Glass: Not personally, no sir.

It was on the grounds that I didn’t think that the Act provided for him holding an evidentiary hearing.

Justice Potter Stewart: In fact, as under the order that was issued on May 1, 1972 by the Court, Kentucky District Judges, ends up says, upon written request of either party within 10 days, the district judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give a de novo consideration but that’s -- the counsel aren’t there when that occurred, are they?

Mr. Joseph G. Glass: That’s correct, as a matter of fact, you make the request in writing and that’s the --

Justice Potter Stewart: Which I have seen in the appendix here and then his ultimate order recited that he had heard it.

Mr. Joseph G. Glass: That’s correct.

Justice Potter Stewart: But nobody was there.

Mr. Joseph G. Glass: That’s also correct.

In this case, he listened to and added some tape recording disc of the hearing as it was taken down at the evidentiary hearing.

Justice Potter Stewart: And there is nobody there to verify whether or not there might be gaps in the tape recording or erasures.

Mr. Joseph G. Glass: That’s correct.

Justice Potter Stewart: And have heard it otherwise?

Mr. Joseph G. Glass: That is correct.

Chief Justice Warren E. Burger: What is -- I am a little confused, you said, you think that the Magistrate can conduct this preliminary process and make recommendations to the judge that no hearing need be held and that if the judge accepts that recommendation, it’s alright.

Thus that he may not go beyond that and hear the testimony and then make proposed recommendations or proposed findings of fact to the judge, to the same end that no further hearing is necessary.

Mr. Joseph G. Glass: Mr. Chief Justice, I believe that that would be the posttrial consideration that he would be authorized to do.

I think primarily, he would be directing himself as a matter of law in looking towards, whether the habeas corpus satisfies the pre-requisites of Townsend versus Sain in 1963 and perhaps Fay versus Noia in 1963.

But here again looking towards the legal aspects and the formality of the pleadings and thereafter submit a report on whether there should be an evidentiary hearing --

Justice William J. Brennan: Well, does that suggest, for example, he might take the state record and go all through that and conclude the requirements of Townsend and Sain had been satisfied.

And then for that reason, the case could not be decided on the state record without any further (Inaudible).

Mr. Joseph G. Glass: Townsend versus Sain allows that and he would have to --

Justice William J. Brennan: And the Magistrate could do this much?

Mr. Joseph G. Glass: Yes sir.

I think he would have to serve notice on the parties as to his report and recommendations along those lines.

Justice William J. Brennan: But that would -- if he had that basis, that goes rather far because he is now making the decision that there is a sufficient hearing in the state proceeding not to require an additional one and at the Federal Constitutional Claims whatever they may be, they would be decided on the basis of the state record without supplementing it with any federal record.

Mr. Joseph G. Glass: Mr. Justice Brennan, perhaps I misunderstood your question.

I think he can make recommendations based upon the law to the judge.

I think the judge -- and I do not think that there is any question within the circuits that the District Judge is the ultimate decider of the question.

I do not think that that’s going to be changed.

Justice William J. Brennan: Well what I (Voice Overlap) I expect in many of these habeas corpus cases, it ought to be true that constitutional claims can be determined on a state record without supplementing it with a federal hearing.

Mr. Joseph G. Glass: As I read --

Justice William J. Brennan: That’s what Townsend v. Sain (Inaudible).

Well, can a Magistrate be given the responsibility do you think examining the state record, concluding that it suffices for the position of the Federal Constitutional claims and therefore recommend that there is no reason to have any further hearing?

Mr. Joseph G. Glass: I think he can draw his own conclusions in that regard and submit them to the District Judge by way of documentation, and outline in that report and recommendations why he believes his findings to be correct, and if the District Judge accepts them and then I suppose, perhaps they can dismiss the petitions that having set aside been satisfied in the state proceedings.

Justice Potter Stewart: Then that’s of course appealable?

Mr. Joseph G. Glass: Yes, sir it is.

Justice Potter Stewart: As happened in this very case the first time in the Court of Appeals.

And the Court of Appeals, little different panel, Judge Miller sitting instead of Judge Phillips, Reynard instead of Judge Cecil, remanded the case for a hearing.

Mr. Joseph G. Glass: That’s correct.

Justice Potter Stewart: That’s what happened in this case and that’s always appealable.

Mr. Joseph G. Glass: Yes, sir.

Justice Potter Stewart: The question is whether that hearing was given as directed by the Court of Appeals first time around, would it?

Mr. Joseph G. Glass: Yes, sir.

I think, it’s very important to consider the cases that have been cited by both parties in the brief and also, as petitioners conceded on page 12 in his brief that the Magistrates do not have the authority to decide or make all the determination of fact cases or controversies.

This must be left to Article III Courts.

Chief Justice Warren E. Burger: Does anyone claim, does anyone contend that they have final authority?

Mr. Joseph G. Glass: Well, I think that if you --

Chief Justice Warren E. Burger: In the Article III sense.

Mr. Joseph G. Glass: In the Article III, that they have -- that the Magistrates --

Chief Justice Warren E. Burger: I didn’t know that anyone was claiming that there is any finality about the Magistrates’ findings or recommendations anymore than there is with the Commissioner of the Court of Claims or Hearing Examiner of the Federal Power Commission.

Mr. Joseph G. Glass: Not as such but many of the courts have expressed, for example, in the Rainha versus Cassidy, the pro forma laying on of hands of the Magistrates report and recommendations without, as Mr. Justice Stewart suggested, anyone being there at a review how much input went into that particular review of the report and recommendations.

I think that’s the major concern in some of the cases that have even upheld or going towards upholding, the Magistrates’ holding of the evidentiary hearing, for example --

Justice Potter Stewart: In case, there was no hearing in the first and then the Court of Appeals sent it back not to the Magistrate but he sent it back to the District Court for a hearing in the District Court, didn’t he?

Mr. Joseph G. Glass: That’s correct.

And then it was at that time that the District Court appointed the Magistrate.

During this intervening time, the Magistrate had been appointed as a matter of fact, he was appointed in 1971 late as I recall.

Prior to that, we had a Commissioner during the first three years of the act was identified.

Chief Justice Warren E. Burger: After Magistrate has, as in this case, filed his report and recommendation, summary and sent the electronic tape recorder, was there anything to preclude the petitioner’s lawyer from filing a request or filing exceptions to the report and asking for oral argument.

Mr. Joseph G. Glass: Mr. Chief Justice, the rule doesn’t provide for oral argument.

Chief Justice Warren E. Burger: Alright, is there anything prevent him from doing?

Mr. Joseph G. Glass: No sir, but I did file a memorandum taking exceptions to the Commissioner or to the Magistrate’s report, and there is a lengthy --

Chief Justice Warren E. Burger: The court whether to grant oral argument on that or not, as I take it, did they allow oral argument?

Mr. Joseph G. Glass: No, sir.

Chief Justice Warren E. Burger: We, of course, decide enormous number of cases here without oral argument too, as you know.

Mr. Joseph G. Glass: Yes, sir.

Justice William H. Rehnquist: Is one of your concerns, Mr. Glass what I would consider as perfectly legitimate feeling that although the rule perhaps contemplates the District Judge sit there and listen to the tapes if he is busy and doesn’t want to just duplicate the time that the Magistrate put in, he may short circuit that process a little bit.

Mr. Joseph G. Glass: That, I think it’s a legitimate concern.

It’s not a particular concern of me in that -- let me just say that I have a degree of faith in the three district judges that we have in the Western District of Kentucky.

However, I do think that to allow the Magistrate to hold an evidentiary hearing and still say that it’s within the providence of the Article III Judge to hold another evidentiary hearing is just one more step in the judicial process and I don’t think that’s what the Act was intended for.

It’s just like another appeal and then if the District Judge rules that the Magistrate’s finding of fact and conclusions of the law are correct then you go up to the Sixth Circuit Court of Appeals in our situation and so on.

And I don’t think that’s what the Act calls for.

The Act, I believe, was intended simply to reduce the routine of mundane workload of the District Judge so that he could address himself to things like evidentiary hearings.

And Sixth Circuit noted in their opinion in this case that they couldn’t see how an evidentiary hearing that is listening to the tape de novo would require anymore time than an actual evidentiary hearing.

And along the lines of the suggestions that I have made that the Magistrate can do, I think that he could reduce the time necessary for an evidentiary hearing and could probably almost pinpoint it by taking this proceedings through with counsel in the form of plea hearing conferences with the counsel, because the counsel are appointed.

And then submit a report to the judge that the hearing is going to take 45 minutes or it’s going to take an-hour-and-a-half.

It’s going to take three hours.

These are the witnesses that are probably to be called.

These are the issues that will probably be determined.

These are the facts that will probably be determined.

Justice William H. Rehnquist: Supposing that the District Court held a hearing under those ground rules, would you say that the District Judge would be justified excluding out of hand any effort on the part of either party to go beyond the Magistrate’s recommendations as to the issues that evidence should be received on?

Mr. Joseph G. Glass: I think if it were important and I would submit that if that were the situation, if there would in all probability be a proviso that written motions or request or notices could be filed with the court if the hearing were going to include anything other than that which was laid out by the recommendations of the Magistrate.

Justice William H. Rehnquist: Well, but supposing you have filed your motion or notice, would the District Court be justified on the basis of the Magistrate’s recommendation to say, “No, I do not propose to hear that, we are going to limit it to the issues specified by the Magistrate.”

Mr. Joseph G. Glass: I think if you go back to -- if I can make an analogy.

If you go back to the appellate process and if the petitioner and/or his counsel knew at the time they had the pre-hearing conference with the Magistrate that certain matters were available, that certain people were available, if they wanted to get a certain issue into evidence if they knew at that time and didn’t disclose it, then I think they would not be entitled to bring it up by a way of notice or within the hearing itself under those circumstances.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Ringo?

Thank you gentlemen.

The case is submitted.