TPO, INCORPORATED v. McMillen, 72-1098.

• Decision Date: 28 April 1972
• Docket Number: No. 72-1098.,72-1098.
• Citation: 460 F.2d 348
• Parties: TPO, INCORPORATED, Petitioner, v. Hon. Thomas R. McMILLEN, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

460 F.2d 348 (1972)

TPO, INCORPORATED, Petitioner, v. Hon. Thomas R. McMILLEN, Respondent.

No. 72-1098.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 1972.

Decided April 28, 1972.

James S. Gordon, George S. Feiwell, Samuel Morgan, Chicago, Ill., for petitioner.

Richard J. Carmel, Dan Brusslan, Paul Theodore Ruxin, Chicago, Ill., for respondent.

Before SWYGERT, Chief Judge, and KILEY and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

Petitioner seeks a writ of mandamus to nullify the assignment of its case in the district court to a magistrate for ruling on petitioner's motion to dismiss.

Petitioner is a defendant in the case of Zeitman v. Walston & Co., No. 71 C 2074 in the U. S. District Court for the Northern District of Illinois. Petitioner filed a motion to dismiss for failure to state a claim upon which relief can be granted. Because affidavits were attached, the motion was to be treated as a motion for summary judgment. Fed. R.Civ.P. 12(b) (6) and 56. All briefs connected with the motion were filed by November 29, 1971.

At a status-report hearing on January 24, 1972, plaintiffs' counsel expressed his concern over the slow pace of pretrial proceedings because of plaintiffs' advanced age (both were 78), ill health and poor economic status, he pressed for a trial date during the spring. He even offered to dismiss the complaint against petitioner and two other defendants if it would expedite the case.

The district judge observed, "We are pretty far behind on motions," and decided to refer the case to a magistrate "to conclude everything up to the date of trial." Petitioner's motion to vacate the order of reference, which argued that a magistrate was without power to rule on a motion to dismiss, was denied. No other motion or contested matter was pending when the reference order was entered.

U. S. Magistrate James T. Balog on February 9, 1972, entered an order denying petitioner's motion to dismiss. On February 15, petitioner filed its mandamus petition; two days later this court stayed all proceedings before the magistrate until further order. Plaintiffs and the district judge filed responses to the petition and the case was argued April 5.

The statute under which the district judge made the reference is the 1968 United States Magistrates Act, 28 U.S. C. §§ 631-639. A majority of judges of a district court may appoint a full-time magistrate for a term of eight years. The magistrate must be a member of the bar of the state where he is to serve, must be determined to be competent to perform the duties of the office, must not be related to a judge of the appointing court and must be under 70 years of age. He may be removed by a majority of the judges only for incompetency, misconduct, neglect of duty, or physical or mental disability. (28 U.S.C. § 631.) He may receive an annual salary of up to $22,500; the salary may not be reduced during his term below that fixed at the beginning of the term. (28 U.S. C. § 634.)

Section 636(b) of the statute provides in part:

"Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate . . . may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—

* * * * * *

"(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions. . . ."

Pursuant to this statute, the District Court for the Northern District of Illinois has adopted these "Magistrate Rules":

"1(C) The Magistrates shall perform the following additional duties upon direction of a Judge approved by order of the Executive Committee:

* * * * * *

"(b) assist Judges in conducting pre-trial proceedings in civil cases. . . .

* * * * * *

"2(2) (b) An appeal from a final order entered by a Magistrate shall be filed within twenty (20) days with the Judge who referred the matter to a Magistrate."

The issues raised by this petition are whether the district court may delegate to a magistrate, and whether a magistrate has the power to rule upon, motions to dismiss or motions for summary judgment. These issues are important to the administration of justice through the instrumentality of magistrates and require a close analysis of the legislative history of the magistrates act.

LEGISLATIVE HISTORY

The Senate Subcommittee on Improvements in Judicial Machinery held exploratory hearings on the United States commissioner system on October 13, December 14 and 15, 1965, and February 8 and 9, 1966.¹ The information gathered at these investigative hearings, supplemented by data gathered from the responses of more than 400 U. S. commissioners to a subcommittee questionnaire and research memoranda produced by the subcommittee staff, provided the foundation for a preliminary draft of a proposed federal magistrates act which was widely circulated in April, 1966.

As modified in light of criticisms from judges, law professors, attorneys, commissioners and other interested parties, the bill was introduced in the Senate as S. 3475 on June 7, 1966.² The subcommittee held hearings on S. 3475 on July 11-13 and August 23, 1966, and took testimony from a wide range of interested parties.³

S. 3475, in an amended form that reflected changes suggested by witnesses at the Senate hearings and by persons to whom the bill was sent, was introduced in the Senate on February 8, 1967, as S. 945.⁴ Hearings on S. 945 were held on May 25, 1967;⁵ it was reported favorably by the Senate Committee on the Judiciary on June 28, 1967,⁶ and was unanimously passed by the Senate. Six similar bills were introduced in the House,⁷ the hearings on which, together with S. 945, were held by Subcommittee No. 4 of the House Committee on the Judiciary on March 7 and 13, 1968.⁸ S. 945 was reported favorably by the House Committee on the Judiciary on July 3, 1968,⁹ and was passed by the House of Representatives.

The federal magistrates act was enacted on October 17, 1968,¹⁰ to become generally effective within any federal judicial district on the date the first magistrate assumed office within that district or on October 17, 1971, whichever date was earlier.

Magistrates' Status and Jurisdiction

The 1965 exploratory hearings held by the Senate subcommittee established that the U. S. commissioner system was little understood, even by the commissioners; that almost one-third of them were not lawyers;¹¹ that the fee system under which they were compensated probably resulted in deprivation of due process of law since the commissioners had a pecuniary interest in reaching a conclusion detrimental to the defendant.¹² Although they constituted the "front line of Federal justice"¹³ and "were being called upon to apply some of the most sophisticated rules of constitutional law,"¹⁴ particularly under the Criminal Justice Act of 1964,¹⁵ the commissioners operated with great disparity from district to district and had become the "forgotten men" of the federal judicial system.¹⁶ The hearings raised a threshold question of whether the system should be eliminated entirely, or "downgraded" in importance, or revised substantially and "upgraded."

The consensus ran heavily in favor of upgrading the system with the result that the federal magistrates act as ultimately passed provided that¹⁷ (1) the title of the office be changed from U. S. commissioner to U. S. magistrate; (2) all magistrates be attorneys unless it is impossible to find a qualified attorney; (3) other minimum qualifications be established to insure independence and disinterest; (4) the anachronistic fee system be replaced with salaries; (5) full-time magistrates be given a secure eight-year term of office subject to removal only for cause and (6) full-time magistrates be supplied with office space, clerical assistants and supplies.

In addition to the "upgrading" provisions, the act as ultimately passed revised substantially the two important jurisdictional areas where the former commissioner devoted most of his time and efforts and where it was anticipated that the magistrate would devote most of his—preliminary examinations and the trial of petty and minor offenses.

Rule 5 of the Federal Rules of Criminal Procedure requires that an arrested person be taken without unnecessary delay before the nearest available magistrate, who shall then inform the defendant of the complaint against him, of his right to retain counsel, of his right to request assignment of counsel if he is unable to obtain counsel, of his right to a preliminary examination, of his right not to make a statement and that any statement made by him may be used against him. The magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail.

If the defendant does not waive preliminary examination, the magistrate shall hear the evidence within a reasonable time and the defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall require him to answer the charge in the district court. Otherwise the magistrate shall discharge him.

The federal magistrates act amended 18 U.S.C. § 3060 to require the holding of the preliminary examination no later than 10 days following the initial appearance if the arrested person is held in custody or no later than 20 days if he is released from custody.

In addition to the considerable amount of testimony heard on the problems of, and suggestions for "upgrading," the status of magistrates and that relating to the scope and procedure of preliminary...