Warren E. Burger: We'll hear arguments first this morning in 73-5993, Test against the United States. Mr. Gerash.
Walter L. Gerash: Mr. Chief Justice and associate justices. This case involves the plain meaning of the federal Jury Selection and Service Act of 1968, and more specifically with the Section 1867 (d) and (f), which deals with the challenging compliance with selection procedures. In essence, the issue in this case is, did the federal trial court error when they denied a motion to inspect the master list and the -- rather master and qualified wheel under 28 U.S.C. 1867 (d) upon a timely motion accompanied with a sworn affidavit alleging noncompliance with the Act. In that, there was a systematic exclusion of Spanish surname persons qualified for jury duty. There's a subsidiary question which I don't feel it's necessary to reach, but it's implicit in the briefs and that is, is this form of requested relief, statutory relief, under the Act, separate from a constitutional or collateral attack. And the answer to both questions is yes. The facts in this case are undisputed prior to the trial of a drug case; counsel filed a motion to dismiss the indictment and a motion to inspect the jury wheels. And pursuant to the statute, he filed an affidavit of an experience that he had in Boulder, Colorado which is a county, city and county about 20 miles from Denver. And in that -- he had a case before the state court, and at that time the state law mimicked the federal Jury Selection and Service Act and that it utilized the voting registration list as a basic source list. And the affidavit that I filed is contained in the appendix in the -- page 15, and in essence without going through the appendix, the conclusion was that this group, that the Spanish surnamed group were underrepresented by over 50%.
Harry A. Blackmun: Mr. Gerash, let me ask for a little help. In this case and in others where we always have references to people with Spanish surnames, suppose a woman named Perez marries a man named Jones, now their offspring is not a person with a Spanish surname if they follow our system --
Walter L. Gerash: Well, relying on human nature, it's self-corrective because the opposite sex does the same thing. And so we -- statistically taking usually take care of that situation. It cancels one another. It's really not a problem statistically.
Harry A. Blackmun: Question number two, you motion it seems to me is directed to persons with Spanish surnames and students and blacks using your phrase, and then later, persons under the age of 35. And then in your affidavit, you speak to Spanish surnames and used under 30 and students and workers. I wonder whether there's a little inconsistency between the supporting affidavit and the motion.
Walter L. Gerash: Well, what happened is of course this Court certified the issue to be Spanish surnames and did not certify a age grouping or in this case blacks. Of course, in this specific case, being denied the list we couldn't make any statistical analysis in the federal District Court. But the affidavit -- there was testimony by Professor Bargrow from the University of Denver to the effect that these groups were also underrepresented. But that wasn't -- of course that is not the issue before the Court. The Court only certified the Spanish surname cognizable group under Hernandez versus Texas.
Harry A. Blackmun: Well I take it then you're saying the inconsistency which I believe is present between your supporting affidavit and the motion is irrelevant because we're only speaking of Spanish surnames here?
Walter L. Gerash: That's right, Your Honor.
Harry A. Blackmun: And you feel that in response to my first question that the thing balances out?
Walter L. Gerash: Yes, it does.
Warren E. Burger: You lost me there a little bit Mr. Gerash. What empirical data is available to show that it balances it out?
Walter L. Gerash: Well --
Warren E. Burger: Though you're saying that there are as many Spanish people -- people of Spanish origins or Mexican origins who marry non-Spanish names like Jones or Peterson --
Walter L. Gerash: Right.
Warren E. Burger: -- and vice versa.
Walter L. Gerash: Right.
Warren E. Burger: Now, how do we know that?
Walter L. Gerash: Well, there'd been some studies made and however the statisticians and mathematicians do have a error of correction and they take that into consideration.
Warren E. Burger: I don't see how you could do that except by an absolute headcount.
Walter L. Gerash: Well therefore, it would've been impossible in Hernandez versus Texas, I suppose, to come to the systematic exclusion of constitutional argument. But I don't know the -- they do if they do, do that in the mathematicians sometimes in cross-examination explain.
Warren E. Burger: Mathematics does not have much of play in marriage problems, does it?
Walter L. Gerash: No.
Warren E. Burger: You don't marry on a mathematical basis.
Walter L. Gerash: That's correct. The --
Warren E. Burger: It's mathematical of this extent that is as many men marry women as women marry men.
Walter L. Gerash: That's right.
Warren E. Burger: But what does that have to do with antecedents -- ethnic antecedents?
Walter L. Gerash: The U.S. census met with that problem also and I quote a U.S. census finding of the voting characteristics of persons in the 1968 elections. And naturally, when they make their random sampling and they go into the homes and count heads, they actually inquire of national intermarriage, and their statistics are balanced accordingly in their census figures.
Warren E. Burger: But it is a sampling only, is it not?
Walter L. Gerash: Yes, but it projected over statistically hundreds and thousands of persons, it's a pretty good figure. Of course the amicus brief indicates that Spanish-Americans have been underrepresented even in our census figures. So theoretically --
Warren E. Burger: Many of them were missed.
Walter L. Gerash: That's correct. Now --
Warren E. Burger: The same was true with Negroes and other ethnics groups, was that not true?
Walter L. Gerash: That's correct. And, however since blacks, Negroes have Anglo names, it's sometimes very difficult for a poor person to look at 8000 names unless their names -- unless their race is designated in the registration procedure, which it is now under the new Act. And I feel we have a very good Act and we have a very good self-executing Act and I'd like to deal with that. Anyhow, the affidavit appears on its face to be okay. In fact my brother Patton indicates that he's never seen a better affidavit and I have to emphasize that this was a threshold problem, in other words we never got a hearing. We never had a determination as to whether or not there was a noncompliance with the Act. We were denied the list outright, and Judge Arraj is an excellent judge, excellent trial judge who have tried many cases before him. But he stated this on page 24 of the appendix “Well that’s later. I want to look at the qualified jury list in order to have a hearing, in other words I want a hearing. You're not going to have a hearing in this case. If you want to look at the jury list some time, we will hire some extra help. And if you come down, you can peek at it all you want to but it's not going to be had in this case. I have told you, we concede that the percentage of jurors that are black or Spanish in surname are not a pro rata percentage that those groups bear to the total population, we concede that, alright?” That's on the record. Mr. Gerash “My position is though, if I can show it is so overwhelming, it is a violation of due process, and I can't do it. I have nothing to go up to the Tenth Circuit if I lose this case to show that it is substantial.”
Potter Stewart: What page are you reading from?
Walter L. Gerash: Page 24.
Potter Stewart: Of the?
Walter L. Gerash: Of the appendix.
Potter Stewart: Of the appendix.
Walter L. Gerash: And the court never ruled on the sufficiency of the affidavit and there was no record on review and we had no hearing. And fortunately or unfortunately, the defendant was convicted of illegal drug dispensing, and we are here. The plain meaning of the words, in other words, the words meaning what they say in the appendix of petitioner's brief has laid out the statute that has the declaration of policy.
Warren E. Burger: What page now?
Walter L. Gerash: Page 1 (a) which would be page 50 of petitioner's brief. The declaration of policy of the United States is declared to have a random fair cross section of the community, and that there should not be any -- that all jurors should be able to serve regardless of race, color, religion, sex, national origin or economic status. In fact prior to the Act, one year prior to the Act, the court Fifth Circuit, speaking through Rabinowitz put the key man in his coffin and this Act buried the coffin -- buried the key man in the coffin. And it was very salutary, one cannot helped being very impressed with our legislators in drafting this Act, and it's a good Act and it has a self-correcting mechanism, and that is if the voter registration list in a specific geographic area do not substantially represent a cross section and it doesn't have to be a mirror, the court, the judicial counsel, the judicial conference of the United States in its rule-making powers and the Chief Judge himself can add new list that would broaden this mirror that is being polished up. In other words, it's not necessary to have a constitutional attack. The Act itself is self-purifying. The common law lawyers in essence shine up the mirror. They bevel the reflection, and if the reflection is bad, if the reflection doesn't reflect the cross section of the community, then the court may polish up its own mirror, so to say by selecting other lists. It's a very viable Act, it's a very vital Act and I feel that democratization of the jury, this gift given to us by Magna Carta is very strong now and has a -- will have a very great history in the future.
Warren E. Burger: You're speaking now to the jury wheel, not to a specific jury?
Walter L. Gerash: I'm speaking about our Act, the federal Act.
Warren E. Burger: Well, you're addressing your remarks to what must be done with the total names going into the jury wheel, not the colored people --
Walter L. Gerash: Exactly.
Warren E. Burger: -- or who simply who'll go into the box?
Walter L. Gerash: Exactly. We're not concerned with the jury, because the jury in fact in this case there were no Chicano's that tried John Test. However, statistically it would be invalid to say because if the jury doesn't have to, it's invalid. I was attempting to get at the 8000 names to make a statistically viable analysis and I was denied that right. Counsel agrees there was error. However, I'd like to address myself the fact that we feel that this Act has to be read as a whole, because the Act monitors statistics. The Act enables lawyers both the Government and the defense attorneys in 1867 on page 9 (a) of the plaintiff's, or rather the petitioner's brief wherein it talks about challenging compliance with the selection procedures. It clearly gives both sides to file motions seven days prior to trial, and it gives them the parties in a case shall be allowed to inspect, reproduce and copy such records of papers at all reasonable times during the preparation and pendency of such a motion. The Act recognizes that this is an exclusive means by which a person accused of a federal crime, or the Attorney General of the United States or civil party may challenge any jury in that he was not selected in conformity with any of the provisions. And there're many other provisions. There are disqualifications. There are excuses that may reflect perhaps a bias in some manner. However, the Act specifically delineates that this shall not preclude any other remedies, especially constitutional attacks. So we claim in this case that not only that we conform to the literally, to the statute, but we alleged the constitutional dimension that we felt that we would be able to prove if we were allowed into the hearing room and took a look at the statistics.
Potter Stewart: The Government seems in large part to agree with you, do they?
Walter L. Gerash: That's correct.
Potter Stewart: So this is hardly -- the controversy has been considerably reduced since the petition for certiorari was granted?
Walter L. Gerash: That's correct, that's correct. And in fact, both parties asked that it be remanded with instructions to allow us to look the list to see if that we hope we’d be proved wrong. However, there's a little corollary and that is that it seems that the Ninth Circuit and Second Circuit have been requiring the affidavit or the proof, the proof, to have a constitutional dimension which as I read the Act and the history of the Act is really not so.
Potter Stewart: The Government agrees with you in that reading of the Act as I -- well, we'll wait for them.
Walter L. Gerash: That's right.
Potter Stewart: But, certainly from the brief --
William H. Rehnquist: You don't contend that you're entitled to a new trial if we agree with you, do we?
Walter L. Gerash: No.
William H. Rehnquist: Or you're just entitled to an examination of the jury lists?
Walter L. Gerash: Exactly. And if I prove that there is systematic exclusion, I have a right to new trial with a fresh -- with a panel that perhaps has a better statistical cross section. We don't want a mirror, as Justice White indicated in the -- one of these cases. We don't want a mirror. We just want a -- we want a fair cross section just what the statute calls for, and these things differ -- will differ in every community. They will differ in the south. They will differ when people get politically apathetic. And of course we're not even entertaining the question that could be serious later on, and that is, why should voting be the criteria of serving any jury. 30 million people don't engage in the political processes for whatever reason.
Potter Stewart: This isn't voting. This is registration voters.
Walter L. Gerash: Well, the Act says you could use voter registration list or at people voted in the last election. Of course in Colorado, they are purged if they don't vote in an election. They don't even -- they're just purged from the list.
Potter Stewart: Does that to miss one election to be purged?
Walter L. Gerash: That's right. That's basically -- I would add that the Colorado experience, when the Chief Justice supplemented the list sua sponte, I tested in Fort Morgan in another county and I found it not wanting at all. It was self-correcting and there was no -- there was inadequate cross section given the defendants, and I was very satisfied. So, I think this heralds a lot of security and a lot of good predictions with the functioning of our federal Act. Finally, I'd just like to indicate that the Fifth Circuit seems to be particularly sensitive and particularly sophisticated in this area, and Judge Gwin in his article in 20 Mercer Law Review and in his opinion U.S. versus the De Alba Conrado indicated that there really two different remedies. There's a constitutional remedy and a statutory remedy. They're not exclusive, they may overlap. And he also indicated that based upon his studies that the further democratization of the jury has maximized the jury's greatness and raised it to a new height of dignity. And I feel that common law lawyers should be given the opportunity to improve the mirror without throwing it out in a constitutional attack, but working with the court personnel and the judges in order to perfect our jury -- federal jury system. I'd like to save -- if there’s going to be any rebuttal, I'd like to save some time.
Warren E. Burger: Very well.
Walter L. Gerash: Thank you.
Warren E. Burger: Mr. Patton.
William L. Patton, Jr.: Mr. Chief Justice and may it please the Court. The United States finds itself into somewhat unusual position of agreeing with the petitioner on the only issue which we consider to be ripe for review in this case. That is, it is our position that there is an unqualified right under the Jury Selection Act to inspect the jury lists, and that the District Court denial of petitioner’s motion to inspect in this case was error. And we do not believe that it can be properly characterized as harmless. We think there’s an unqualified right to inspect the list because the statute accord such a right. Section 1867 (f) explicitly states that the party shall be allowed to inspect and copy all records used in the jury selection process, and the jury list are of course such records. In the legislative history confirms that the statute means exactly what it says. Moreover, we believe inspection of the list is necessary to an effective utilization of the Act to challenge procedures. I would like to correct something Mr. Gerash said in his argument. I have seen better affidavits than Mr. Gerash’ affidavit, but I do say that it is unlikely that counsel to be able to come up with a better affidavit, unless he can see the jury list. Now, there had been occasional cases which have indicated that the sworn statement, which is required by 1867 (a), is a precondition to inspection. But we believe those decisions are plainly wrong because 1837 (f) says that you can inspect the list in preparation of a motion under 1867 (a). Now, under right inspection does not impose an undue administrative burden, and District Court clerk need only maintain a copy of the list available for inspection, and we do not think for an inspection will be used for delay because the time periods imposed by the Act effectively preclude that. And we do not think there is any substantial risk that inspection will be used for tampering because the sheer number of names on the master and qualified list would effectively preclude that. We do not have a comprehensive survey of District Courts, but based on informal survey of United States attorneys who we deal with, we believe that most District Courts presently allow inspections. Now, whether or not the error can be deemed harmless in this case depends on an analysis of the Act. If the Act is read as being directed solely to prevention of systematic exclusion or purposeful discrimination, then we believe here was harmless because the petitioner sole claim was that the use of registered voter list in Colorado gives rise to a significant under-representation of certain groups, primarily Mexican-Americans or persons with Spanish surnames. Now, as I will explain in a minute, we don't think the Act can be read in that way, but it does have brought our purposes that if we assume for the moment that it is directed at systematic exclusion, petitioner does not state such a claim. The federal jury plan contemplates the use of registered voter list as the source for perspective jurors, and the random selection is the method. And that system is in sharp contrast with the jury procedures that have been founded constitutes systematic exclusion in this Court's decisions. Those systems, usually involved a source for jurors that was not racially neutral and they involved a subjective selection method, and they produced one of two results. They either produce a total exclusion of a group such as in Norris against Alabama, where no Negro had served on a grand or petty jury in the memory of living witnesses. Or they produced a progressive decimation of a class at each stage of the process, such as in Alexander against Louisiana. That systematic exclusion denies a member of a group an opportunity to participate, and as this Court held in Peters against Kiff, it stigmatizes the class excluded. Voter list do not exclude anyone. Any person qualified to vote may simply by registering, obtain the opportunity be considered for jury service. Now the federal selection system resembles fairly closely the jury selection procedure that was in issue in Brown against Allen, which is reported at 443 United States Reports, involving at Forsyth County North Carolina system. And there, tax list were used as the source for perspective jurors, and the names were drawn by lot. And this Court held there was no constitutional violation merely because Negroes were underrepresented in proportion to the numbers in the population, so long as the selection procedures were fair. Congress could constitutionally had made voter list conclusive, but they did not do so. And on 18 -- Section 1863 (b) of the Act, Congress provided that the voter list were to be supplemented whenever necessary to foster the policies of 1861, the fair cross section, and 1862, the prevention of discrimination.
Warren E. Burger: And that's what had to be done after the voting age was changed, was it not?
William L. Patton, Jr.: Yes, Mr. Chief Justice. Right after the voting age was changed, the Act was amended requiring two things, the emptying of the wheel and refilling the master list, and now provides that a person 18 years of age is qualified of jury service. Now, we think a party challenging the voter list and contending that there's an obligation to supplement, there’s a heavy burden. And while we believe Mr. Gerash should be entitled to inspect the list and make his claim, we don’t think it's likely that he's going to be able to prevail.
Thurgood Marshall: Well is that before -- the only thing before us is to whether they have the right to see the list, is that right?
William L. Patton, Jr.: That's right Mr. Justice Marshall.
Thurgood Marshall: And you agreed that he does have a right to see the list?
William L. Patton, Jr.: Yes sir, we do.
Thurgood Marshall: So what are we going through now?
William L. Patton, Jr.: Well, we believe the case ought to be remanded to the Court of Appeals with instructions --
Thurgood Marshall: You want us to write an essay on this where both sides agree?
William L. Patton, Jr.: No sir, I don't think it’s necessary. I think it might be helpful if this Court made clear --
Byron R. White: But you suggested that sometime ago when we took this case that we shouldn't take it that it should be remanded?
William L. Patton, Jr.: That's right.
Byron R. White: So you perhaps should be putting the questions.
William L. Patton, Jr.: Well, I was somewhat puzzled and uncertainness to what the Court was interested in, I -- let me bring up one thing --
Byron R. White: Well, I take it you say that the Act is to be construed to mean that anyone can inspect the jury list and what's on the wheel by saying “I may want to file a motion, and in order to find out if I do or not, I can go on this fishing expedition in the jury records.” And you say that's exactly what Congress contemplated?
William L. Patton, Jr.: That's right. And it is not an administrative burden on the clerk. He only has to maintain a copy of the list. And unless you can look at the list, you can't make a challenge to the Act.
Byron R. White: So does that include all the records of individual exemptions?
William L. Patton, Jr.: The -- well, under the Federal Act, the process works basically this way. You start with a voter list, choose a random selection from that you send out questionnaires, questionnaires come back and then excuses disqualifications and exemptions are noted on the questionnaires. The practice has been on the District Courts to permit inspection of the questionnaires, and I think that’s appropriate because I would -- we would take the position that a party wishing to challenge the Act's procedures must show not only that there's a disparity. But if he wants to go on and make a challenge based on the qualified list, then he would have to look at the questionnaires.
Byron R. White: Do you say the error in this case was that although the affidavit was insufficient, he should have had an opportunity to present a better one if he could after inspecting the list?
William L. Patton, Jr.: That's right. That's the way the challenge procedures were designed to work, you looked at the list, based on what you find you then do an affidavit. And if the affidavit doesn't state a claim then, then you're out of luck.
William H. Rehnquist: But there's no need for any sort of prima facie showing before you have a right to inspect, in your view?
William L. Patton, Jr.: In our view there is not. Now --
Potter Stewart: An unrestricted right in other words to --
William L. Patton, Jr.: That's right Mr. Justice Stewart, we believe --
Potter Stewart: (Voice Overlap) statute?
Byron R. White: I suppose it has got to be a (Inaudible)?
William L. Patton, Jr.: No he has to be a defendant or the Attorney General or either party in civil case. Now, it's not based to the Act does not preclude constitutional challenges by other person, but it wouldn’t govern whether there's a right to inspect a list in those cases and --
William H. Rehnquist: Well, they existed before the Act.
William L. Patton, Jr.: They existed before the Act, that's right. That is the only issue in the case and we think it should be remanded.
Byron R. White: I take it that you have nothing in the legislative history on account of your argument, do you?
William L. Patton, Jr.: Nothing Mr. Justice White, except in 1966 in House debates on a previous Bill that was never enacted. A statement was made that inspection might be use for a delay or tampering, and as I have stated, we don't think that's a substantial risk. It's most inefficient --
Warren E. Burger: There's a time limit now, isn't there?
William L. Patton, Jr.: There is a time limit, and it's --
Warren E. Burger: Seven days, isn't it?
William L. Patton, Jr.: Seven days in any event before the voir dire begins, and the lists are so large that it's best and inefficient way of tampering, so we're not concerned about that. Now, we think it should be sent back to the Court of Appeals with instructions to remand with the District Court for action on petitioner’s motion to quash the rate after he's had an opportunity to see the list. And we may then face the question whether there's an obligation to supplement, but we don't face it now.
Byron R. White: And if he doesn't make out his case to reenter the judgment.
William L. Patton, Jr.: That's right. Now, as a matter of interest I -- pleasure to inform the Court of a couple of things that have happened since this case has been in this Court. I understand that we don't have any hard information except the State of Colorado has under the Uniform Jury Selection Act which is substantially identical to the federal Act, or to the supplementation of voter lists.
Potter Stewart: Is that new you're suggesting?
William L. Patton, Jr.: It is -- no, they have done it, we don't know whether the Supreme Court of Colorado has ordered the voter list be supplemented for jury selection in state courts.
Potter Stewart: Since --
William L. Patton, Jr.: Since this case has come.
Potter Stewart: -- this case and certiorari was granted in this case?
William L. Patton, Jr.: That's right. Now, I understand it took a year to develop the supplemental sources. And one of the things that we're concerned about in this whole area is that if a plan is ever found to be deficient, it’s going to be very difficult because it's not easy to develop supplemental sources. The judicial conference is working on that problem. They are now running in selected districts and computer projects and that may solve the problem. And in addition, the judicial conference has a reporting procedure in which District Courts around the country report periodically with the statistical sample from their master lists, and that is monitoring the way the system works. But we don't face those difficult questions in this case. Unless Court has any further questions --
Warren E. Burger: An example of this time occurred when the voting age was changed it took, as I recall it, substantially more than a year to bring that voter wheel up to date. So that there's bound to be a lag when you're dealing with a large omitted group.
William L. Patton, Jr.: There is bound to be a lag. And Mr. Chief Justice, we haven't had a great year of experience under the Act. Now one reason that we haven't had the experience is that until 1972, the questionnaire did not indicate race, at least the indication of race was optional so that if you wanted to make a challenge that there's under representation of racial groups, it's very difficult to do, and we make it more of those challenges. Now during the hearings on the Bills, Professors Calvin and Seizle testified and they recommended that private parties not be allowed to enforce the supplementation requirement that that be handled by an audit procedure in the Act. Their suggestion wasn't followed and experience may show that they were right, but at the present time, we're unable to come to that conclusion.
Warren E. Burger: Thank you Mr. Patton. Do you have anything further Mr. Gerash?
Walter L. Gerash: Just a comment on Justice White's mention of fishing expedition. Number one, I think the sworn statement specifically states that the sworn statement must have facts if true would constitute a substantial failure to comply with the provisions of --
Byron R. White: Mr. Gerash, do you have to file an affidavit?
Walter L. Gerash: Yes, you have to --
Byron R. White: And you say you must make out in your sworn statement you must have allegations in there that would entitle your relief?
Walter L. Gerash: You have to -- I would liken it a probable cause affidavit because --
Byron R. White: Justice Rehnquist asked your colleague if that was so, it is so.
Walter L. Gerash: Well, I suppose I should be on this side and he should be on my side.
Byron R. White: But then, your affidavit was insufficient?
Walter L. Gerash: Well, I don't think it was, because my affidavit --
Byron R. White: Your opponent says it was.
Walter L. Gerash: It wasn't, that's --
Byron R. White: That's what he turned on then we do have an issue here. You have to disagree between you and the Government on a sufficiency of your affidavit.
Walter L. Gerash: I'm just stating that --
Byron R. White: Is that right?
Walter L. Gerash: Not really, no.
Byron R. White: Well why isn't then?
Walter L. Gerash: Well he --
Byron R. White: You said your affidavit is sufficient, he said it wasn't.
Walter L. Gerash: He stated that it was more sufficient than most affidavits he's ever seen, not the best. I don't want to quibble but I want to point out that this --
Byron R. White: Well you say there’s an issue here before the Court, before we can remand, we must pass on the sufficiency of the affidavit. If it was insufficient, there's going to be no remand.
Walter L. Gerash: Well, --
Byron R. White: That's the conclusions of what you've just said, aren't they?
Walter L. Gerash: I'll stand on the affidavit. I think the affidavit is sufficient, but the lower court never passed on it.
Warren E. Burger: I understood Mr. Patton to say that it was -- your affidavit was as good as sufficient as it could be without an examination of the list?
Walter L. Gerash: Right.
Warren E. Burger: But --
Walter L. Gerash: And I had to go to another --
Byron R. White: That isn't the point. You've just said that you must make out a prima facie case in your affidavit before you're entitled with the list?
Walter L. Gerash: Yes, and I think that prevents the fishing expedition.
William H. Rehnquist: So how many counties does the Denver District of the -- District of Colorado drawn for its jury selection?
Walter L. Gerash: About 20 counties.
William H. Rehnquist: Well, I would think if you have to make a prima facie showing making it just in Boulder County, might not be sufficient?
Walter L. Gerash: It would be economically impossible. Every criminal defendant would have to be a wealthy man.
William H. Rehnquist: Well, I think that may be militates against the prima facie showing argument, rather than saying that you can make a prima facie showing by 1 out of 20?
Walter L. Gerash: Well, then I'll have to move and change my position --
Byron R. White: (Inaudible)
Walter L. Gerash: Well, I'll have to agree --
Byron R. White: (Inaudible)
Walter L. Gerash: I'll have to agree with him, but the point is if a lawyer swears under oath, facts that if true would be a substantial noncompliance and he has no way of really approving that other than an experience with the vote of registration list in a county that comprises one of the federal counties.
Byron R. White: Well, I have to completely agree to that, and I have felt the nerve, his was and yours was that all you needed when you wanted to inspect was to tell the court officials that I'm going to file a motion.
Walter L. Gerash: The statute doesn't say that. But I suppose that's his position.
Byron R. White: Well, the Government's position is I thought yours was that 1867 (f) said that you can inspect to the purpose of preparing the motion?
Walter L. Gerash: Well, as I read (d), 1867 (d) the motion must accompany -- an affidavit must accompany the motion.
Byron R. White: I agree certainly much. But 1867 (f) says you can inspect in order to prepare the motion?
Walter L. Gerash: That's correct.
Byron R. White: Oh! All right.
Walter L. Gerash: Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments first this morning in Thomas against the Superintendent of the Ohio Reformatory for Women. Mr. Stanley, you may proceed whenever you are ready.
Christopher Danahy Stanley: Mr. Chief Justice, members of the Court, if it please the Court, ladies and gentlemen of the audience, it is an honor to appear before the Court. I understand from the clerk that this is the 50th anniversary of the very first argument in this building, so I am doubly honored that I am appearing before the Court. I would first express what I would consider my mea culpa. I wish that I had filed objections in this case. It would have prevented having to come up to the Supreme Court for the decision in this case. It would have prevented a lot of time from having to be expended on this case. However, I didn't, and I think that given the case law involved in this Court and the circuits that it wasn't necessary, and I would like to proceed with the argument. A little history of the case. My client was charged with murder in Cuyahoga County in Cleveland, where she was convicted. On appeal, Judge Krensler, who is now a Federal District Court Judge in Cleveland, held that from the current psychological and sociological research has emerged a profile of a battered woman as one who displays unique behavioral patterns and psychological characteristics as well as differences in reaction and perception, all of which are not within the knowledge of the average juror. He concluded that without expert testimony on the battered woman syndrome, a jury would be unable to have a sufficient comprehension of the defendant's state of mind at the time of the homicide. The Ohio Supreme Court granted review of the case and reversed the reversal. I then went to the Federal District Court Judge in Cleveland. It was referred to a magistrate, who recommended that the petition for habeas corpus be denied. The District Court Judge had a de novo determination. Notwithstanding the failure to file objections, the Sixth Circuit, implementing what is now known as the Walters policy, held that by failing to object to the magistrate's report, one waives the right to appeal to the circuit from the District Court order. I then petitioned for cert and this Court granted it. There are basically four points I would like to make on argument today. The first and most important one is the interplay between the magistrate's act and Article 3 of the United States constitution. When our forefathers were setting up the new government after the Revolutionary War, they were very wary of putting all the governmental power, basically the legislative, executive, and judiciary, into the same hands. Accordingly, they felt that it was necessary that there be an independent judiciary. They wrote Article 3. Article 3 basically says that there shall be a Supreme Court and such inferior courts as Congress may establish. It also said that those courts were to be staffed by judges who have life tenure and a set salary. I must admit that Article 3 at first blush seems a relatively simple statement of fact. It spawned a great deal of litigation in this Court. I do not pretend to understand Article 3 and the litigation it has spawned, particularly in such cases as Northern Pipeline. However, with regard to the interplay between Article 3 and the Magistrates Act, this Court has quite clearly stated what the law is. Now, the Magistrates Act was provided in Congress in 1976 and subsequently amended basically to set up a series of inferior judicial officers, inferior, that is, to the District Courts, to help the District Courts with the overwhelming case law that they were being presented with. Basically, they may consider nondispositive pretrial matters, conduct evidentiary hearings of dispositive motions, habeas corpus, et cetera. In the section that we are dealing with here, that is, 28 USC 636(b)(1)(B), they can conduct hearings on a habeas corpus and then provide the judge with proposed findings of fact and recommendations for disposition by the Judge. Parties may file objections, and the Judge shall make a de novo determination of those portions of the report objected to. However, the last sentence, I think, is the key. The Court may accept, reject, or modify the report. This Court in several cases has considered the interplay between Article 3 and the Magistrates Act, most often through the pen of Chief Justice Burger. The basic cases are the United States versus Raddatz and Mathews versus Weber. This Court quite clearly has said the Magistrates Act is constitutional because the ultimate decisionmaking rests with the United States District Court. Those cases basically came up with three points. One, in going over the legislative history of the Magistrates Act, this Court has said Congress was sensitive to the Article 3 considerations. They were sensitive to not putting in a magistrate Article 3 duties. Hence this Court stressed and Congress stressed that the ultimate adjudicatory determination was reserved to the District Court. The second point this Court has made in Raddatz and Mathews is, the Court says that the ultimate authority and responsibility to make an informed formal determination must remain with the Judge. Three, the Court stressed the magistrate's role is one of helping the Court to narrow the dispute, focusing on the legal issues. However, it again stressed the Court alone remains the ultimate decisionmaker. In sum, this Court said in Raddatz and Weber, the delegation of the magistrate to hear issues does not violate Article 3 so long as the ultimate decision is made by the District Court.
Lewis F. Powell, Jr.: Mr. Stanley, did you receive notice of the waiver rule?
Christopher Danahy Stanley: Yes. In the--
Lewis F. Powell, Jr.: Did you request to file objections within ten days?
Christopher Danahy Stanley: --In the printed portion cf the magistrate's report, at the very end, contained what I now recognize to be notice that if I don't file objections, there would be a waiver.
Lewis F. Powell, Jr.: Did the District Court give you an extension of time within which to file objections?
Christopher Danahy Stanley: Yes, they did.
Lewis F. Powell, Jr.: Did you file any?
Christopher Danahy Stanley: No, I did not.
Lewis F. Powell, Jr.: How much additional time did he give you?
Christopher Danahy Stanley: I--
Lewis F. Powell, Jr.: Two or three months?
Christopher Danahy Stanley: --Two or three... whatever the time. I don't remember.
Lewis F. Powell, Jr.: How would the District Court ever know that you objected if you failed to file any objections?
Christopher Danahy Stanley: First of all, if I may say, the issues were fully briefed. When I filed the petition for habeas corpus, I included with it a memorandum of law concerning the issues I was to raise. It was approximately 20 pages long. In my opinion, this Court's decisions in Raddatz and Weber mandate independent judicial review of the magistrate's report by a District Court.
Lewis F. Powell, Jr.: On its own... on its own initiative.
Christopher Danahy Stanley: No, on the initiative... what is included in 626(b)(1)(B). That is, failure to object... the penalty for failure to object as enunciated by Congress is no de novo determination, he Court may accept, reject, or modify the report of the magistrate. It seems that this Court has quite clearly said the Court must be the ultimate decisionmaker. Otherwise, you have a situation where the magistrate ends up being an Article 3 judge. For instance, in the Sixth--
Thurgood Marshall: Mr. Stanley, if you had filed objections, would you be here now?
Christopher Danahy Stanley: --Well, probably not, but hopefully I would have won down there and you would have accepted it anyway.
Thurgood Marshall: All of this is brought about by your failure to file a piece of paper.
Christopher Danahy Stanley: That's correct.
Thurgood Marshall: And that is what we are using our time up for.
Christopher Danahy Stanley: Pardon?
Thurgood Marshall: That is what we are using our time up for.
Christopher Danahy Stanley: Well, Your Honor, I believe it is a much more serious matter than that. Here we have Raddatz and Weber requiring a District Court judge to make a final determination. The Walters policy as enunciated by the Sixth Circuit and other circuits in their policies have stated that the District Court doesn't really even have to consider the case if you don't file objections. That raises a magistrate to the ultimate decisionmaker in a case.
William H. Rehnquist: Mr. Stanley, if you are right that Raddatz and the other case stand for the proposition that the District Court is an independent adjudicator, the adoption of your view would really allow counsel losing before the magistrate to simply go directly to the Court of Appeals without even paying any attention to the District Court.
Christopher Danahy Stanley: Well, I disagree with you, Justice Rehnquist. First of all, the magistrate's report is not a final appealable order. Congress in writing the statute says, if there are no objections, the District Court doesn't have to make a de novo review, but the District Court still must consider the case. It must be the ultimate decisionmaker. The District Court then making an independent review but with the magistrate having focused the issues spends much less time on the case, makes a determination, and that is... it is from that--
William H. Rehnquist: But the District Court would surely be even more focused if it had the benefit cf objections to the magistrate's report from the losing party.
Christopher Danahy Stanley: --I am not going to disagree with you, Your Honor. However, it seems to me, for instance, in this case, where I had filed a 20-page brief, the issues were before the Court. It was an issue of law. This is the sixth court that my client has been to, that I have been to on her behalf. To say that there is a waiver of anything is, in my opinion, untenable. We have... I raised the issue. I briefed the issue. The magistrate came to a different conclusion. All the District Court judge had to do is in fact what he did dc, Because he did conduct a de novo determination anyway. What he did do was read my brief, read the magistrate's report, come to a conclusion.
Sandra Day O'Connor: Well, in this instance, how was Article 3 violated, because by your own statement the District Court did give review to the magistrate's finding here, and the finding became the District Court finding. Now, if you make no objections in the District Court, if the proceedings at trial have been in the District Court initially, a court of appeals is not going to consider things that aren't raised at the District Court level. Why should it be different with the magistrate's report that is considered by the District Court?
Christopher Danahy Stanley: Well, Justice O'Connor, if one reads the opinions in the circuits, there is only one circuit, the Fourth, which discusses this issue in terms of procedural default. The Sixth Circuit does not talk in terms of procedural default. The Sixth Circuit says specifically you waive your right to appeal, period. Now, in a procedural default, you are not waiving your right to appeal. You still have the right to appeal, but the Circuit Court says you didn't preserve it below. It seems to me--
Sandra Day O'Connor: The effect is the same. In either event the Court of Appeals wouldn't be hearing it. Isn't that right?
Christopher Danahy Stanley: --That's correct, but it seems to me in a situation like this it is a question of form over substance. Where you have, Number One, a brief on the issue, the matters that are in issue before the Court on behalf of the petitioner and the magistrate's report, you have a right as enunciated by Congress to appeal from the denial of a habeas corpus. That is an independent right that Congress has seen fit to give to a petitioner in a habeas corpus proceeding. I don't know that a court can say we are going to ignore Congress and we are going to impose this penalty. Further--
William J. Brennan, Jr.: Well, Mr. Stanley, did I understand you to say that the recommendation of the magistrate to which you did not object was nevertheless the subject of de novo review by the District Judge?
Christopher Danahy Stanley: --That's correct.
William J. Brennan, Jr.: And does the judgment that the District Judge entered reflect that determination on that issue?
Christopher Danahy Stanley: The judgment of the District Court reflects that there was a--
William J. Brennan, Jr.: No, did it reflect the determination of the issue, the subject cf a recommendation by the magistrate to which you did not object?
Christopher Danahy Stanley: --That's correct.
William J. Brennan, Jr.: And you didn't agree with that... the judgment in that respect?
Christopher Danahy Stanley: On the District Court? No, I did not.
William J. Brennan, Jr.: Is that what you wanted to have reviewed in the Court of Appeals?
Christopher Danahy Stanley: That is correct. I filed a notice from the judgment entry of the District Court, notice of appeal to the Sixth Circuit.
Byron R. White: Whether the District Court purported to review the report de novo or not, the only time that you get an appealable judgment is when the District Judge enters an order.
Christopher Danahy Stanley: That's correct.
Byron R. White: In any case, it is going to be a District Court judgment.
Christopher Danahy Stanley: That's correct.
Byron R. White: And what do you say... why does that raise a problem under Article 3?
Christopher Danahy Stanley: Well, to be honest with you, Judge, as you pointed out in your dissent in Northern Pipeline, I am not convinced that I know what--
Byron R. White: You are taking a lot of your time on this Article 3 issue. You have got something else going, haven't you?
Christopher Danahy Stanley: --Yes, Your Honor. Only because Article 3 in interpreting the Magistrates Act has said the reason that it is constitutional is that the decisionmaker must be the District Court.
Byron R. White: Well, it always is.
Christopher Danahy Stanley: That's correct, and since the District Court must review the magistrate's report, whether objections are filed or not, it seems to me that the Walters policy and the other circuits are wrong when they say that there is a waiver of the right to appeal, because--
Warren E. Burger: You have consumed 17 minutes now on this point. If you want to save some time for the other matters, you should get on to it. I must say that if you are right, then even if Congress said you either object or you waive, that would be unconstitutional.
Christopher Danahy Stanley: --I would agree with you. A second point that I wish to make in my remaining 13 minutes--
John Paul Stevens: May I ask one question before you go to your second point?
Christopher Danahy Stanley: --Certainly.
John Paul Stevens: Do you understand the Sixth Circuit rule to be that they think the statute compels a waiver, or that as a matter of practice in the Sixth Circuit we will enforce the waiver rule?
Christopher Danahy Stanley: Well, their writing, the language that they said was, although you may file... objections is something that you may or may not do, we feel they felt that under the supervisor power they could force this issue by making it a rule in the Sixth Circuit. One of the dangers of that in my opinion, Justice Stevens, is the fact that different circuits have different rules for jurisdiction, and if we go to what was going to be my third point, which is that the courts cannot limit their own jurisdiction that Congress has given them, in different circuits some people can appeal. In four of the circuits you can appeal no matter what the magistrate does, whether or not you file objections or not, you can appeal from the denial of a habeas. In the sixth circuit you cannot appeal from a denial if you do not file objections. In one of the circuits they talk about procedural default, and one of the circuits, the Eighth Circuit, rejects the waiver theory. So, you have differing jurisdictions of the Court of Appeals as a result from these differing policies with regard to whether or not you file objections.
Byron R. White: Well, there may not be a difference after this case is decided.
Christopher Danahy Stanley: Hopefully not. My second argument is a due process argument as it was enunciated in United States versus Raddatz by the Chief Justice, which basically says that what due process you are entitled to is appropriate to the nature of the case. Citing Mathews versus Aldridge, it goes into the question of private interests, the risk of erroneous determination by reason and process supported, and the public interest in administrative burdens. It seems to me that when we where talking about the great petition of habeas corpus, and where Congress has required the right to appeal as giving you that right, that due process requires in habeas corpus that the ultimate decisionmaking be with the District Court, and that the right to appeal be given to a petitioner. I have already mentioned in reference to Justice Stevens' argument my third point, which is that I do not believe that the courts can limit their own jurisdiction. I would say that in summation, that Walters is wrong because it limits their jurisdiction. Congress never said in its statute that a failure to object is a waiver. There already exists a penalty for failure to object, which is, you do not get a de novo determination. The Statute says, if there are objections, there shall be a de novo determination. That is the penalty for failure to object, not waiver of the right to appeal.
William J. Brennan, Jr.: Well, you say you do not get one, but do you argue that the judge may nevertheless give one?
Christopher Danahy Stanley: No, I believe the judge may give... in fact, if the court... the court can do whatever it decides to do. As the Chief Justice said in Raddatz and Weber, the magistrate is there to help the District Court in its overburdened case law. It is there to focus the issues. The Court can reject or give whatever weight it wants to to the findings of the magistrate.
William H. Rehnquist: Did Judge Conti hear oral argument in this case after the magistrate's report?
Christopher Danahy Stanley: No, he did not--
William H. Rehnquist: So the thing was never set down on the District Court's docket in the sense of being kind cf a petition to review the magistrate's order. You didn't submit anything to the District Court, and he held no bearing.
Christopher Danahy Stanley: --Well, I will agree with you as far as the timetable is concerned. There was nothing submitted after the magistrate's report. The case was assigned to Judge Conti's docket. I filed the brief with Judge Conti's docket, a 20-page brief that fully outlined our position on the issues of law.
Byron R. White: Was this the same brief you gave the magistrate?
Christopher Danahy Stanley: Yes, so I mean when I file it it goes to Judge Conti. Judge Conti fills out a little form and sends it to the magistrate. The magistrate sends it back to Judge Conti with the report recommendation. I would indicate for the record in... I was responding to Justice Brennan that two of the circuits in this country indicate that where there is no objections, the District Court does not even have to review the magistrate's report. There is nothing more for the District Court to do in the case. It elevates in my opinion a magistrate to a Judge. I would reserve the rest of my time for rebuttal.
Byron R. White: Aren't you going to argue that the statute forbids this, for heaven's sake?
Christopher Danahy Stanley: I thought I had, Your Honor, in the Article... in interpreting--
Byron R. White: Well, Article 3 would make the statute irrelevant.
Christopher Danahy Stanley: --Well, in my opinion the statute says, and right in conjunction, that you may file... the magistrate is to file a report and recommendations for final decision by the Judge, is what the statute says.
Byron R. White: Isn't one of your arguments that the statute on its face and its legislative history forbids this result?
Christopher Danahy Stanley: Yes.
Byron R. White: All right. Do you think there is any difference between the magistrate's recommendations on factual findings as opposed to points of law? As I understand your argument, it makes no difference which it is, an issue of law or of fact. There is no waiver in your view.
Christopher Danahy Stanley: That's correct. I recognize that four of the circuits have held that a waiver... that a failure to object waives the right to appeal factual findings but not of legal conclusions. As Justice Marshall pointed out in his dissent in Raddatz, I believe that Justice Brandeis, and I would agree with him, indicates that in habeas corpus petition you are entitled to review of the facts and the law by a judge, and in my opinion because of the great place that we have for the petition of habeas corpus in our society, and the fact that we are talking about a liberty interest, we really must have a judge, and based upon the statute, which holds that the Judge is the ultimate decisionmaker, the judge must decide everything.
Thurgood Marshall: One point. Is your only point the fact that you don't have to file an objection?
Christopher Danahy Stanley: Let me make it clear, Justice Marshall.
Thurgood Marshall: That is what I am trying to do.
Christopher Danahy Stanley: I would dearly have loved to file the objection because then I wouldn't be here having to argue--
Thurgood Marshall: Well, that is the only point that is here, isn't it? Do you agree?
Christopher Danahy Stanley: --Yes. Yes. In my opinion--
Thurgood Marshall: You want us to say that the rule of the circuit is wrong.
Christopher Danahy Stanley: --That's correct.
Thurgood Marshall: Unconstitutional.
Christopher Danahy Stanley: In my opinion, yes, based upon the decisions--
Thurgood Marshall: Well, what part of the constitution does it violate?
Christopher Danahy Stanley: --It violates due process, and it violates Article 3 by practice of the policy, which is that you do not have... the District Court--
Thurgood Marshall: You mean Five? Which one are you... which amendment are you talking about?
Christopher Danahy Stanley: --Amendment Five and Fourteen, Your Honor.
Thurgood Marshall: Five and Fourteen. And that denies you due process?
Christopher Danahy Stanley: In my opinion, a magistrate... not having a judge--
Thurgood Marshall: Now, what else would you have filed with the Court under an objection more than the 20 pages that you filed?
Christopher Danahy Stanley: --Nothing. To be honest--
Thurgood Marshall: So, what are we complaining about other than that you just don't like filing a piece of paper?
Christopher Danahy Stanley: --Well, like I said, if I had to do it over again, I would. What I don't... what we... where the law stands now is that it elevates a magistrate to something higher than he should he by allowing him to be the final determination of the issue. The issues were before Judge Conti. He recognized that and he decided them.
Thurgood Marshall: You say that you wouldn't file it again?
Christopher Danahy Stanley: I said if I had to do it over again I would file them.
Thurgood Marshall: Suppose we send it back. Will you file it or not?
Christopher Danahy Stanley: You tell me to file them, I will file them. I will file them. If it is going to cure the problem that exists and the reason I am here, I will file them.
Thurgood Marshall: I am still trying to find out what is here.
Christopher Danahy Stanley: What is here is the question of whether or not the Sixth Circuit's determination in my case that I could not appeal from the District Court order is viable. I say to this Court that my client has the right to appeal to the Sixth Circuit from the denial by the District Court Judge of a petition for habeas corpus. They say that not... failing to file objections waives that right, and I say that is unconstitutional.
Harry A. Blackmun: Mr. Stanley, was your failure to file objections intentional or an oversight?
Christopher Danahy Stanley: You have to understand, Justice Blackmun, I am an assault practitioner. Up until Friday, when the Circuit Court Judge granted a stay based upon your latest Mitchell versus Wyatt, I was supposed to go back tomorrow to Akron to start a month-long jury trial. I have to put out my time in each case as best I see it. In this case I had filed a brief. The issues were before the District Court Judge. I felt to file an objection would have been just simply an exercise in futility, that the magistrate considered my petition, my position on the issus, and made his recommendation.
Harry A. Blackmun: So it was not an oversight.
Christopher Danahy Stanley: No, it was simply a matter where I didn't feel that it would add anything to the controversy before Judge Conti by filing objections. I would have simply refiled my brief that I had already filed.
Sandra Day O'Connor: Mr. Stanley, how is conditioning an appeal in these cases on filing of objections any different than conditioning an appeal on the timely filing of a brief or payment of a filing fee or something of that kind?
Christopher Danahy Stanley: Well, I think it is different because, Number One, Congress has given a petitioner for a writ of habeas corpus the right to appeal. Number Two, Congress--
Sandra Day O'Connor: Well, even so, can't the courts enforce a requirement filing memos and briefs on timely basis and so forth?
Christopher Danahy Stanley: --Certainly.
Sandra Day O'Connor: So why not this?
Christopher Danahy Stanley: Well, because this is where a Circuit Court is saying, we are not going to let you appeal because you didn't do something in the District Court, namely, file objections. Number One, it goes to statutory construction of Congress's intent, which this Court has repeatedly said Congress's intent is for the District Court to be the ultimate decisionmaker, not the magistrate. Number Two, the penalty for failure to file objections is quite clear from Congress's intent that you just simply do not get a de novo review. There is no express policy outlined in any of the statutes or any of the legislative history from Congress that they expected a waiver of the right to appeal. I would say to this Court that where you have a petition for habeas corpus and the right to appeal, that the Circuit Courts cannot limit their own jurisdiction. As I pointed out to Justice Stevens, you now have a mishmash in the different circuits where in some circuits you can appeal, even though you have a failure to file objections, and in other circuits you can't, and I think that is untenable.
Warren E. Burger: Very well. Mr. Drake?
Richard David Drake: Mr. Chief Justice, and may it please the Court, the issue in this case is whether a Federal Circuit Court may condition appellate review upon the filing of objections to the report and recommendation of a federal magistrate.
John Paul Stevens: Mr. Drake, the way you state the question interests me. You are not contending then that there is a statutory requirement that Circuit Courts take this view.
Richard David Drake: No.
John Paul Stevens: You are saying it is a matter... each circuit can adopt its own rule.
Richard David Drake: Yes, and I am saying the Sixth Circuit has adopted it under its supervisory powers. The rule is--
John Paul Stevens: A permissible rule that is not required by statute.
Richard David Drake: --A rule which is not only permissible, but--
John Paul Stevens: Makes a lot of sense.
Richard David Drake: --Fosters Congressional intent. I don't believe that the Magistrates Act actually speaks directly to this question. The question is whether the Sixth Circuit may do this, not whether it is compelled to do so.
John Paul Stevens: And therefore it also follows, I guess, that it is not a jurisdictional rule.
Richard David Drake: It is definitely not a jurisdictional rule.
John Paul Stevens: Because they didn't make it retroactive, so obviously they thought they had jurisdiction to go either way.
Richard David Drake: They made it prospective only to accommodate what I feel they perceive to be potential due process difficulties.
Byron R. White: Do you think that... is their rule limited to the cases where the defendant gets notice?
Richard David Drake: Absolutely.
Byron R. White: And is that your position also?
Richard David Drake: Yes.
Byron R. White: That if he doesn't get notice, there can be no waiver?
Richard David Drake: The rule was promulgated in a case, United States versus Waltars, which is cited in the brief. The rule was not even utilized in that case. It was made prospective only from the date of that decision.
Byron R. White: Then it is... you don't push for any wider waiver rule.
Richard David Drake: No. No, Your Honor. I don't believe the statute compels it perforce, no.
Byron R. White: So you... I take it the answer to Justice Stevens that other circuits could have just the contrary rule.
Richard David Drake: The circuits could in their wisdom, I believe, though, if you look to the Congressional intent underlying the Magistrates Act, a circuit who declines to adopt the Sixth Circuit rule is essentially for reasons unknown to me fostering upon itself review de novo.
Byron R. White: But it would be permissible, you are saying.
Richard David Drake: It would be permissible.
Byron R. White: You don't urge us then to try to make the rule uniform or not?
Richard David Drake: I think that if affirmance is given in this case, we might have more circuits adopting this rule in their own self-interest. As I pointed out in the brief, the difficulty is not uniform to all the circuits. For instance, the District of Columbia Circuit apparently has very little difficulty, if you look at the statistics, whereas the Fourth, Fifth, Sixth, and now the Eleventh Circuits are having considerable difficulty.
Byron R. White: At least there is a question as to whether this was a proper exercise of the supervisory power.
Richard David Drake: I believe that is the only question before the Court.
Byron R. White: And Congress did indicate what a penalty for failure to file was, or is.
Richard David Drake: As to the District Court, yes.
Byron R. White: Why should a court impose a further penalty for failure to file?
Richard David Drake: Because the purpose underlying the Magistrates Act... and it had had a checkered history. The original 1968 version encountered a series cf adverse judicial decisions, including ones from this Court, and it was in response to your invitation and that of the Chief Justice that the 1976 amendments were actually enacted. The theory underlying the 1976 amendments very much parallels the master system user in the United Kingdom or the referee system used in most states today, which is to use non-Article 3 jurists, here magistrates, to delineate the scope of the dispute. Oftimes you will have in a civil case a multi-count complaint filed. The magistrate might recommend summary judgment as to let's say 18 of those, and the litigant will then have... essentially the magistrate will serve as a filtration system, where the litigant will then make an intelligent judgment as to whether or not he wants to proceed. That is the entire theory underlying this, that the magistrates will filter this litigation in the nondispositive context. The review is under the clearly erroneous standard. In the dispositive context, as I said, the Magistrates Act did not fare well in the Courts. They were very, very aware of Article 3 difficulties, and they made it absolutely clear that if the litigants so desire, he could obtain, he had the opportunity to obtain review anew, but he could forfeit that opportunity. This case is tantamount in my opinion strictly to a failure to prosecute or any other procedural default.
Thurgood Marshall: Suppose the 20-page paper that he filed, suppose the first page of it said I object for the following reasons.
Richard David Drake: In other words, you are saying, suppose the objections would have been filed, Your Honor?
Thurgood Marshall: Suppose he said, "I object for the following reasons. " That is all he put on the top of the 20-page thing he filed. Would that be satisfactory?
Richard David Drake: You mean initially, when he initiated this litigation, Your Honor?
Thurgood Marshall: Yes.
Richard David Drake: No, Your Honor, I don't.
Byron R. White: Didn't he file something with the District Court?
Richard David Drake: Your Honor, I think there is a misstatement or misunderstanding here. After the magistrate issued the report and recommendation, the only thing he filed was a motion for extension of time. He never refiled anything in the District Court, anything of any--
Thurgood Marshall: What is this 20-page thing he is talking about?
Richard David Drake: --When he essentially filled out the form, the habeas corpus form, which is provided for in the rules, and he also attached thereto a brief reiterating the claims he has made in the state courts--
William J. Brennan, Jr.: You mean, that was a filing before the magistrate.
Richard David Drake: --That was referred to the magistrate, yes.
William J. Brennan, Jr.: That was referred to the magistrate.
Richard David Drake: Yes, and considered by the magistrate in conjunction with briefs filed by the state of Ohio and a very voluminous transcript.
Thurgood Marshall: What did he file with the District Court?
Richard David Drake: With the clerk's office, when he initiated this action--
Thurgood Marshall: Well, I... the District Court means clerk's office.
Richard David Drake: --Right, he filed the petition and a brief in conjunction therewith. That is all he ever filed except for the motion for extension of time--
Thurgood Marshall: And after the magistrate ruled, he didn't file anything else.
Richard David Drake: --Except for a motion for extension of time, he filed nothing.
Thurgood Marshall: He filed nothing.
Richard David Drake: Nothing. Surprising, he didn't even file a 59E motion to alter or amend judgment, which probably would have avoided this question also, at least many circuits have held. It wasn't too late even when the judgment was issued, in my opinion, but--
John Paul Stevens: Why wouldn't it be too late, then? Under the Sixth Circuit rule, it seems to me if you don't file--
Richard David Drake: --The Sixth Circuit has never really addressed the issue.
John Paul Stevens: --As far as we know, the Sixth Circuit rule seems to be an inflexible rule. If you don't file objections--
Richard David Drake: No, Your Honor. --First of all, the Sixth Circuit rule is not inflexible at all. As I pointed out in the brief, there was a pro se litigant, and the Sixth Circuit found in that instance that there was cause for the failure to... the procedural default, and wanted to avoid a manifest injustice. The rule is not inflexible, and we are not talking about jurists who are unreasonable.
John Paul Stevens: --Let me just go back for a second to Justice Marshall's... I'm sorry... question. If after the magistrate's ruling, your opponent had filed a piece of paper which said I object to the magistrate's rulings for the reasons stated in the memorandum I filed originally, period, that would have been enough, wouldn't it?
Richard David Drake: The Sixth Circuit has never addressed it. What you are talking about... in any published decision, in any event. What you are talking about is the pro forma blanket objection. I don't know. I can't answer your question. I don't know if they would hold an attorney at law--
John Paul Stevens: Well, that wouldn't even be pro forma, because they would have filed... you would have spelled out his argument. Well, I see what your point is.
Richard David Drake: --I think that in the case of a pro se applicant, that would be sufficient. He is doing the best he can. Here we are talking about someone who is admitted to the bar, and in point of fact Mr. Stanley had filed four claims. When he went to the Sixth Circuit, he abandoned three of those. Here we have a District Judge who sui sponte took it upon himself to unnecessarily waste time on three claims which obviously he had intended to abandon anyway. The Act would have worked in this instance. He would have filed objections in theory on only one of the four claims, and Judge Conti, who at that time had been elevated to the Circuit Court, would not have had to deal with 75 percent of this litigation, Your Honor, and that is what the Sixth Circuit is trying to do, not take away someone's right to appeal, but merely mandate that they perfect that right to appeal, and not... here we have not only a failure to file objections, but in the Sixth Circuit Mr. Stanley did not so much as file a reply brief indicating why he hadn't filed the objections. Even though our brief dealt at length and initially with this question, Mr. Stanley did not appear at the oral argument. The Circuit Court below had neither written nor oral explanation as to why these objections were not filed.
Sandra Day O'Connor: Mr. Drake, what about a situation when the District Court sui sponte alters the finding or recommendation of the magistrate on, for example, a point of law, and no objections had been filled in a timely basis, but the District Court on its own reaches some legal conclusion different from the magistrate's recommendation. Would there have to be a right to appeal from that?
Richard David Drake: For instance, Your Honor, you are indicating perhaps Judge Conti would have granted the writ as to one of these claims?
Sandra Day O'Connor: Yes.
Richard David Drake: Had Judge Conti granted the writ as to one of these claims, and I here have to speculate to some degree, because it has never really arisen in the Sixth Circuit, but it would be my judgment the state of Ohio could appeal, that Mr. Stanely could appeal raising as the sole ground for affirmance that relied upon in the District Court, and could neither file cross appeal nor could he rely upon the other three grounds that were not considered by Judge Conti. I think that would be the logical extension of what the Sixth Circuit states.
Sandra Day O'Connor: And if a circuit nevertheless tried to apply the waiver rule, would there be anything in the statutory scheme or the Constitution to prevent it?
Richard David Drake: If the Sixth Circuit in the case where the writ is granted--
Sandra Day O'Connor: Yes.
Richard David Drake: --tried to--
Sandra Day O'Connor: Enforce a waiver.
Richard David Drake: --I can't imagine myself ever making that argument, and I don't think the Sixth Circuit could do that.
Sandra Day O'Connor: Well, is there anything in the statutes or the Constitution that would prohibit a circuit from having so stringent a rule of waiver?
Richard David Drake: Would prohibit it? Nothing would come to mind except for a general concept of fairness, Your Honor. I can't imagine a Circuit Court ever doing that. I am unaware of any remotely analogous situation.
Sandra Day O'Connor: How specific do you think the notice must be?
Richard David Drake: I think it--
Sandra Day O'Connor: Here it was quite specific--
Richard David Drake: --I think the notice--
Sandra Day O'Connor: --but what if it weren't? What if it were a general notice?
Richard David Drake: --I think that--
Sandra Day O'Connor: That you might lose your right to appeal?
Richard David Drake: --Some Circuit Courts have had difficulty with this, and I think that the Sixth Circuit has taken the wiser course and mandated the notice be so specific that any child who really can read or write at all could understand that notice. Here we are talking about some people that are in prison but aren't that educated, and I am certain that if you can read at all you understand what that notice means. It is not ambivalent or ambiguous to any extent whatsoever, and I think Mr. Stanley's contrary assertion is sheer sophistry, Your Honor. That is a very explicit notice. And it is even in capital letters, as you can see at Page 50 of the joint appendix.
Sandra Day O'Connor: Well, if there were no notice, or if the rule did not allow an appeal in the other circumstance, I suggest, does that raise due process concerns then, in your view?
Richard David Drake: If there were no notice? Yes. For instance, in the United States versus Walters itself had the Sixth Circuit promulgated a supervisory role, and in that case it would have taken away the right, the government's right to appeal, as it turns out, but had it gone the other way, I do see due process concerns. I think that notice is absolutely essential.
William H. Rehnquist: So far as notice, do you think that each individual attorney has to be advised by the government or by somebody, by the Court of their right to appeal from a judgment of the District Court to the Court of Appeals?
Richard David Drake: No, Your Honor. For instance, had there been a rule, any rule of appellate procedure is not obviously incorporated in every order of a Court. Attorneys are deemed to be on notice, and are to some degree pro se litigants, are deemed to be on notice of rules that are long standing. This Court doesn't for instance, send me rules of practice every time I come here, but I think that the rule... it is the wiser course, because we are--
William H. Rehnquist: I thought you were saying it was constitutionally--
Richard David Drake: --I think notice is constitutionally mandated, the fact that you actually put it in every pleading, which is what happens in the Sixth Circuit. Every report and recommendation--
William H. Rehnquist: --Yes, but I thought your answer to Justice O'Connor's question was, if there weren't that sort of notice, there would be real constitutional implications. I wonder how you score that with the fact that nobody gets any notice other than reading the statute of their right to appeal from the District Court to the Court of Appeals.
Richard David Drake: --Your Honor, I meant that for instance if a Circuit Court came up with some supervisory rule that took litigants by surprise and made it retroactive to appeals which were pending, I would have some difficulty--
William H. Rehnquist: You are talking about kind of a judge-made rule.
Richard David Drake: --Right, which is what we have here, is essentially a rule which the Sixth Circuit perceives, and I agree, is very congruent with the intents underlying the Magistrates Act. You simply cannot have your Article 3 District Judge being bypassed and, sandbagged. The idea is to serve as some sort of filtration system. Congress certainly did not mean to aid Article 3 District Judges and to the detriment of Article 3 Circuit Court judges.
William H. Rehnquist: But of course Judge Conti doesn't seem to have taken advantage of the latitude which you say Congress gave him.
Richard David Drake: He did not take full advantage of the latitude which Congress gave him. Perhaps that might... I have no idea why Judge Conti did what he did. It certainly was not incumbent upon him to do so.
William H. Rehnquist: Maybe he enjoys reviewing magistrates' decisions.
Richard David Drake: I honestly do not know, obviously, Your Honor, why he did what he did.
Byron R. White: Well, you certainly wouldn't need to reach any constitutional argument if notice weren't provided by the court rule. All you would have to say or hold here is that it was an improvident exercise of his supervisory power not to require noticed. You wouldn't have to reach any constitutional issue.
Richard David Drake: I would agree. Here notice, express notice was given, Your Honor. Mr. Stanley acknowledges that he got the notice. The fact that he filed the motion for extension of time, which was granted, is indicative of that fact. There is no dispute that... the only dispute is his belated misinterpretation of what that fairly plain language meant, Your Honor. But once again, I would point out that we are here dealing with a court who has decided to exercise its supervisory power. Reversal can only obtain if that supervisory power is repugnant either to the Constitution or statute. Mr. Stanley has pointed out no repugnancy that I can ascertain. He simply disagrees with the wisdom of the supervisory rule. Here I believe that, and I believe the statistics indicate that there should be some latitude here for the various circuits to operate in the manner that they wish to operate absent some repugnancy to an overriding statute or the Constitution. And no one has said that this rule is mandated nationwide. Some circuits, particularly the Eighth Circuit, obviously doesn't perceive the need to have such a rule. If they want to allow District Judges to be bypassed, Congress has indicated that they can do so, I believe. I believe that if the court below is affirmed, perhaps Circuit Courts will feel a little more latitude and be a little more receptive to the Sixth Circuit rule. What Mr. Stanley is attempting to do is relieve himself of the obligation as an officer of the Court to apprise the Court of the fact that he is dissatisfied with a portion of the magistrate's report or, for that matter, the whole thing, and he is putting the onus on the judiciary to do his job. This is precisely what the Circuit Court said we are not going to allow this to happen. This is no different than any other legitimate procedural requisite. It is just that Congress said to file the brief, to file a timely notice of appeal, to appear at a pretrial conference, to give discovery. Essentially what we have here is a failure to prosecute, and we have a totally unexcused failure to prosecute. I have no idea--
John Paul Stevens: May I ask... may I interrupt for just a second?
Richard David Drake: --Yes, Your Honor.
John Paul Stevens: Is it your view or the view in the Sixth Circuit that a District Judge acts improperly if when there are nc objections to the magistrate's report or file the District Judge decides on his own initiative to review the whole report and decide whether he agrees or disagrees with it?
Richard David Drake: I don't know what the Sixth Circuit view on that would be, Your Honor. What Judge Conti did in this case is highly unusual, though, as a matter of common practice.
John Paul Stevens: The force, the effect of the rule as I understand it, though, really doesn't have anything to do with what the District Judge may do. He can still either review or not review his own election.
Richard David Drake: Yes.
John Paul Stevens: Which is what Congress seemed to be thinking about mostly. The whole force of this rule is to protect the Court of Appeals--
Richard David Drake: That's right.
John Paul Stevens: --as I understand it from reviewing cases where there was a procedural default before the magistrate, and it is irrelevant what the District Court does.
Richard David Drake: That's correct, Your Honor.
John Paul Stevens: Even if the District Court writes a great long opinion, they will say we won't bother reading the opinion because of the failure at the magistrate level.
Richard David Drake: I don't believe that they would say in each and every instance some inflexible--
John Paul Stevens: Well, the general rule would be--
Richard David Drake: --Yes.
John Paul Stevens: --But this rule does nothing to protect the District Judge, as I understand it.
Richard David Drake: The District Judge is... in point of fact what really happens is the District Judge ordinarily does not do what Judge Conti did here. Put the rule is not designed to protect him. I doubt if it could.
John Paul Stevens: But the judge is free to do it if he has a new magistrate, he is not confident, or something, he could--
Richard David Drake: If the Judge, for instance, got a new group of law clerks and wants to let them practice, he wants to review these magistrate reports, he certainly is privileged to do so, and I would have great problems if the Circuit Court told him he couldn't do that.
Byron R. White: --The only time the judge is really required to give de novo review is if there is an objection.
Richard David Drake: Yes.
Byron R. White: And if the objection only runs... goes to part of the report, that is all he has to give de novo review of.
Richard David Drake: Which... and this is a classic case, Your Honor. There is only one complaint before this Court on the merits, and there were four originally. Presumably Mr. Stanley would have objected only as to this battered wife syndrome question, abandoned the other three claims, with a considerable savings of time in the long run to judges like Judge Conti. The judges should not be presumed to be forced or compelled to do what Mr. Stanley wants when the litigants are not before him complaining.
John Paul Stevens: May I interrupt once more? If I understand your position correctly, say there is... the District Judge thought there was merit to one of the four claims to which no objection had been made. The District Judge would have the power to grant relief.
Richard David Drake: Yes.
John Paul Stevens: But the Court of Appeals would not. If the District Judge denied relief, the failure to object would deny the Court of Appeals the power to grant relief, if they enforce this rule just automatically.
Richard David Drake: Once again, Your Honor, I don't believe it has been erected as an inflexible jurisdiction.
John Paul Stevens: I understand, but as a general rule, the Court of Appeals said, we don't have to look at this appeal because there is this failure here. Affirm. Whereas the District Judge doesn't have to.
Richard David Drake: You might well have a proffer here that Mr. Stanley was in the hospital, that he was ill.
John Paul Stevens: The District Judge just might have been extremely conscientious and decided he wants to take a good, hard look at it, but the Court of Appeals would just say we don't have jurisdiction because they didn't follow this rule.
Richard David Drake: Absent at least a proffer of cause and an indication of... you might even have, at last in the judgment of one of the judges below, some indication of manifest injustice, because he thought there was some merit. I disagree with him as to that point, but it is the two prongs. Here there was not so much as a proffer. Your Honor, the motion for rehearing which was the first instance--
John Paul Stevens: No, but there was a proffer in the Court of Appeals, because in the Court of Appeals they said, look, there is a meritorious point here, and the Court of Appeals said, we are not going to listen to your argument because you have failed to object before the magistrate.
Richard David Drake: --But there was... Mr. Stanley never gave a proffer as to why he failed to do this.
John Paul Stevens: Well, he didn't explain his failure to object. I understand that.
Richard David Drake: In a motion for rehearing, Your Honor, he said, ant I am quoting, "Counsel is the one who screwed up. " That is a quote, and he did not elaborate. Your Honor, that does not... that does not to me equate with cause here. I mean, this entire case is to alleviate one individual in a habeas corpus action from exercising his duties as an officer of the court, and we are at the United States Supreme Court. This is not a onerous burden put on counsel, Your Honor, in my opinion, and particularly--
John Paul Stevens: Nobody is suggesting it is. The point is, what is the power of the Court of Appeals when this set of facts develops? The District Court is free to look at it, as I understand; the Court of Appeals is not, as a normal practice.
Richard David Drake: --I don't think that the Court of Appeals is saying that the District Court can't look at it, Your Honor, if I understand your question. They are saying that in what we consider to be this sort of a sandbagging scenario, we will not transfer ourselves into essentially the first Article 3 court that reviews the substance of these claims. And as my brief points out, the circuits which have adopted this rule are the circuits which are inundated with precisely these kinds of cases, because certain circuits... for instance, the District of Columbia doesn't have that many prisoner petitions, I presuppose, at least according to the statistics, whereas the Fifth, the Eleventh, the Fourth and the Sixth do. And again, I am not asking for some nationwide rule of uniformity. I am simply making the point that I believe the Sixth Circuit has taken the wiser course. And even if it is not the wiser course, it is not one that is repugnant to the statute or the United States Constitution.
Sandra Day O'Connor: Well, Mr. Drake, the Sixth Circuit, as I understood it, acknowledged that it had jurisdiction of an appeal, but it dismissed it for failure to make the objection below, just as it might refuse to entertain an appeal on other issues that aren't raised below.
Richard David Drake: Your Honor, procedural default seems to--
Sandra Day O'Connor: Isn't that right?
Richard David Drake: --Yes. As a matter of fact, Engel versus Isaac arouse out of the Sixth Circuit. They had jurisdiction to hear those claims, but because of the preprocedural default, they were not... they could not do it essentially. It is not the power to review here. We are talking about the supervisory rule, which was only given after this express notice, and the rarity of these cases is demonstrated by this case, I believe. I mean, you do not see a flood of instance where the Sixth Circuit has to invoke this rule even against pro se litigants, and as I have indicated, it is not an inflexible barrier, jurisdictional or otherwise, because they have at least in one reported decision granted leave to review those merits when there was a proffer of cause and a feeling that there had been an injustice by the magistrate's ruling, Your Honor. Are there any further questions?
Warren E. Burger: Very well.
Richard David Drake: Thank you.
Warren E. Burger: Do you have anything further, Mr. Stanley?
Christopher Danahy Stanley: Very briefly. First of all, with regard to Justice O'Connor's statements, this, the Sixth Circuit's rule is not a procedural default rule. There is only one circuit, the Fourth Circuit, that would cause a procedural default. The Attorney General may be trying to translate it into that. The Sixth Circuit says, under a supervisory power, you have to file objections or you waive your right to appeal. If there is procedural default, there will be an order of the court, and then that should apply presumably around the country. Here we have, if you are going to talk procedural default, in four the circuits, it doesn't matter, and in two of the circuits it does. That doesn't make any sense. Justice Marshall in your question.
Byron R. White: But you don't say it is a jurisdictional rule, do you?
Christopher Danahy Stanley: In my opinion, form over substance, it is a jurisdictional rule. You cannot appeal because you didn't file objections. It is not procedural default. It is a jurisdictional rule. It is a jurisdictional prerequisite, is the way the Sixth Circuit put it in one of its unpublished opinions. And in talking about the differences between the magistrate and the judge, the judge has the case from the beginning. He never loses jurisdiction over it. It doesn't go from the judge to the magistrate, and that somehow they are two different people. The magistrate is working under the judge. The judge has the ultimate determination. The brief that was filed, presented, that is what we are talking about in this case. Were the issues, gut reaction, were the issues before the trial judge, before the District Court? Yes, they were. I filed a memorandum, extensive memorandum of law. This case has been argued extensively and briefed extensively between... and this is the sixth court I have been to for relief from my client. Now, there simply cannot be a waiver construed from that. As I said before, I am sorry I didn't file the objections, because then we wouldn't have to be here, out the fact of the matter is, the issues were before the District Court, and the District Court made the de novo determination. Congress has given us the right to appeal from a denial of habeas corpus, and the Sixth Circuit in their role is trying to take away that right, which I don't think it has anything to do with.
Lewis F. Powell, Jr.: Mr. Stanley, did you address the waiver issue before the Court of Appeals?
Christopher Danahy Stanley: No, it was never addressed, and I might say that I was ill on the day of oral argument, and after consultation with his predecessor from the Attorney General has agreed that we could waive oral argument.
Lewis F. Powell, Jr.: Well, you did not raise the... issue in your brief.
Christopher Danahy Stanley: I didn't. They did. There was never any reply brief filed.
Lewis F. Powell, Jr.: You filed no reply brief.
Christopher Danahy Stanley: No.
Lewis F. Powell, Jr.: And you agreed not to argue the case orally.
Christopher Danahy Stanley: Because I was sick on that day.
Lewis F. Powell, Jr.: CA Six never heard this argument.
Christopher Danahy Stanley: Pardon?
Lewis F. Powell, Jr.: The Court of Appeals never heard this argument.
Christopher Danahy Stanley: I filed the petition then for rehearing making this argument, and they denied it, and that is what bring us to this Court.
Lewis F. Powell, Jr.: The petition for rehearing?
Christopher Danahy Stanley: Yes, petition for rehearing from their denial. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.