Cruz v. Hauck

• Decision Date: 30 June 1975
• Docket Number: No. 74-2783,74-2783
• Citation: 515 F.2d 322
• Parties: Fred A. CRUZ et al., etc., Petitioners-Appellants, v. W. B. (Bill) HAUCK et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 322

515 F.2d 322

Fred A. CRUZ et al., etc., Petitioners-Appellants, v. W. B. (Bill) HAUCK et al., Respondents-Appellees.

No. 74-2783.

United States Court of Appeals Fifth Circuit.

June 30, 1975.

Frances T. Freeman Cruz, Chicago, Ill., for petitioners-appellants.

John L. Hill, Atty. Gen., Austin, Tex., Ted Butler, Crim. Dist. Atty., Keith W. Burris, David K. Chapman, Asst. Crim. Dist. Attys., San Antonio, Tex., for respondents-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, COLEMAN and ROSENN ^*, Circuit Judges.

ROSENN, Circuit Judge:

This is the third appeal to this court by indigent inmates of the Bexar County Jail of Texas challenging the constitutionality of restrictions on their access to legal materials. Unfortunately, due to the state of the record, we must return the case to the district court for the fourth and, hopefully, final time.

I. The Background

This suit was filed by appellants pro se as a class action ¹ on May 4, 1970, in the United States District Court for the Western District of Texas seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against the enforcement of jail regulations restricting inmates' use and possession of legal materials. The district court's dismissal of the complaint was vacated and remanded by the Supreme Court for reconsideration in light of Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), aff'g, Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970) (three-judge court); Cruz v. Hauck, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217 (1971).

Upon remand, the district court approved, over the objection of and without hearing from the appellants, three rules offered by Bexar County Jail. Cruz v. Hauck, 345 F.Supp. 189 (W.D.Tex.1971). On appeal, we reversed the district court and remanded "for an evidentiary hearing to be followed by specific findings of fact and conclusions of law on the merits of petitioners' objections and the Government's justifications for the rules." Cruz v. Hauck, 475 F.2d 475, 477 (5th Cir. 1973).

The district judge then referred the suit to a United States magistrate to act as a special master and to conduct the required evidentiary hearing. Appellants did not object at any time to the reference. After the hearing, the magistrate submitted his proposed findings of fact and conclusions of law to the district judge. After allowing the litigants to file objections, the district judge adopted the magistrate's report with minor modifications.

The rules finally approved differ from the rules previously approved by the court in only two aspects: jail space must be provided for the use of hard cover lawbooks by the inmates; correspondence between inmates and judges may not be censored. ² Not surprisingly, appellants once again appear before this court. In addition to contending that the rules do not provide adequate access to legal materials, appellants complain that the case improperly was referred to the magistrate, and that certain findings of fact in his report as adopted by the district judge were clearly erroneous. We find merit in certain of appellants' contentions, vacate the judgment of the district court, and again remand.

II. Reference to Magistrate

Appellants contend that the district judge erred in referring the case to a magistrate to sit as a special master. Appellants, however, never objected at anytime to the magistrate conducting the evidentiary hearing. Under these circumstances, we need not consider whether the district judge acted improperly in making the reference for we believe that appellants have waived their right to object.

Much has been written lately by legal scholars and by the courts about judicial references to magistrates. We find it necessary because of the circumstances of this case to add to the discussion. Until recently, it almost was black-letter law that a party, who had not objected to a reference by the time of the adoption by the district judge of the master's report, had waived his right to do so. See Smith v. Brown, 3 F.2d 926, 927 (5th Cir. 1925). See generally 5A J. Moore, Federal Practice P 53.05(3) (2d ed. 1974); C. Wright & A. Miller, Federal Practice and Procedure § 2606 (1971). With the increased use of magistrates as special masters since the passage of the Federal Magistrates Act, the question no longer may be regarded as settled. ³

The district judge referred this suit "pursuant to the order authorizing magistrates to issue certain writs entered by this Court on April 22, 1971." This action puzzles us. The April 22 order authorizes magistrates to issue appropriate writs in habeas corpus proceedings and in performing certain duties in criminal actions. The order does not authorize magistrates to conduct evidentiary hearings in civil rights cases, such as this one, filed under 42 U.S.C. § 1983. While prisoners' grievance suits often may be brought under either the Habeas Corpus Act or the Civil Rights Act, ⁴ the particular act under which a suit is brought has important procedural consequences. Indeed, if this suit had been brought as a habeas corpus action, the reference to a magistrate would have been void. ⁵

The reference is not void because ordered pursuant to an inapplicable rule of the district court. In the reference, the district judge directed that all proceedings before the magistrate "shall be conducted in accordance with the provisions of Rule 53 (of the Federal Rules of Civil Procedure)." Under Rule 53, anyone, with certain exceptions not relevant here, may be appointed a master who is "well versed in the law and fit to perform the duties incumbent on one sitting in the place of the court." 5A J. Moore, Federal Practice P 53.03, at 2922 (2d ed. 1974). Since Rule 53 provides a basis for a reference to a master independent of the Federal Magistrates Act and the April 22 order, we shall treat the reference as though ordered pursuant to Rule 53.

Rule 53(a) authorizes a court in which any action is pending to appoint a special master. The district judge therefore was empowered to refer this suit to the magistrate subject to the limitations of Rule 53(b). ⁶ Appellants' contention that the reference was improper is " 'not a case where a court has exceeded or refused to exercise its jurisdiction . . . .' "; it is rather a question of whether the judge " ' . . . erred in ruling on matters within (his) jurisdiction.' " La Buy v. Howes Leather Co., 352 U.S. 249, 261, 77 S.Ct. 309, 316, 1 L.Ed.2d 290 (1957) (Brennan, J., dissenting). ⁷

Since the judge's reference was within his power, a challenge to that order is unlike a challenge to a court's subject matter jurisdiction. The latter attacks the essence of the court's powers. An order without power is void; a challenge, therefore, to subject matter jurisdiction may be raised for the first time on appeal.

The power of the judge to order the reference also distinguishes the instant case from those cases relied on by appellants which have held orders of reference to be void. These cases fall into two categories. In the first group, magistrates were authorized to render judicial decisions without adequate review by the district judges. Such orders properly were held to be void since neither federal statutes nor rules of civil procedure empower magistrates to hand down decisions in civil cases. ⁸ See Campbell v United States District Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1975). The second group involves cases where other statutes clearly provide that, despite the Federal Magistrates Act or Rule 53, magistrates were not empowered to hold evidentiary hearings. ⁹

The magistrate in the instant case did not make a judicial order, but submitted his proposed findings of fact and conclusions of law to the district judge. After receiving the objections of the litigants to the magistrate's report, the judge made appropriate changes in the findings of fact, amended the jail's rules, and issued the final judicial order. We are unaware of any statute that requires a judge personally to conduct an evidentiary hearing in section 1983 actions. ¹⁰

We therefore reject appellants' contention that the district judge's order was void and subject to challenge for the first time on appeal. This conclusion alone, however, does not mean that appellants have waived their right to object to the reference by not objecting in the district court. Rule 53(b) provides that "(a) reference to a master shall be the exception and not the rule," and that "in actions to be tried without a jury, save in matters of account and of difficult computations of damages, a reference shall be made only upon a showing that some exceptional condition requires it." The question remains whether the limitations found in Rule 53(b) upon the power of the court to order a reference may be waived by the litigants. The answer lies in whether the limitations of Rule 53(b) are to protect the litigants, or whether they emanate from constitutional constrictions upon non-Article III judges sitting in Article III-type cases. An examination of the history of the limitations upon the use of masters may be helpful in resolving this question.

Traditionally, references had been an inseperable part of equity procedure. The practice was to refer cases to an examiner for the taking of evidence, or to a master for the purpose of making recommendations to the court. See Comment, Masters and Magistrates in the Federal Courts, 88 Harv.L.Rev. 779, 789 (1975). Unless the parties consented to a reference, the report of the master was advisory, because the court had the power to substitute its own judgment as to the weight of the evidence. See Kimberly v. Arms, 129 U.S. 512, 523-24, 9 S.Ct. 355, 32 L.Ed. 764 (1889). Equity Rule 611/2, 286 U.S. 571 (1932), adopted in 1932, provided that the findings of the master should be treated as presumptively correct...