Pro se litigants Joanna Burke and John Burke [“the Burkes”] have filed a complaint alleging misconduct by Senior United States District Judge David Hittner in Burke v. Hopkins, STX No. 4:18-cv-04543.

The Burkes, who describe themselves as “80+ year[s] old,” allege that Judge Hittner engaged in a “consistent pattern of bias” against them.

For example, the judge:

– denied the Burkes’ motion for electronic filing privileges on February 13, 2020 and, on March 14, 2020, “refused an extension of time to allow the Burkes to amend their complaint when Joanna Burke was gravely ill in hospital,”1 decisions which resulted in Mr. Burke’s having to disregard the Texas Governor’s “stay at home” orders to drive to the courthouse on March 29 during “a worldwide plague” to “hand-deliver the documents … while [Mrs.] Burke was in hospital on her own”;

– overruled the Burkes’ objection that Magistrate Judge Bray’s Memorandum and Recommendations was “premature”;

– failed to “start formal perjury, contempt or other disciplinary action” based on the Burkes’ objection that defendant Mark Hopkins, an attorney, “twice pos[ed] premeditated lies” about them during a September 10, 2019 status conference before United States Magistrate Judge Peter J. Bray;

– took no action on their objection that to cover-up his improper and prejudicial conduct during the conference, Magistrate Judge Bray “doctored” the transcript and audio-recording and “significantly delayed” providing the Burkes with copies of those records;2 and,

– canceled a scheduled March 19, 2020 status conference on March 17, and “sordidly exploited and abused his authority as a Judge for malicious and vindictive reasons” by entering final judgment. in favor of the defendants on March 18, thereby “intentionally depriv[ing] [us] of [our] right to a fair hearing.”

The Burkes submit that Judge Hittner’s “uncivilized and unlawful” conduct “can only be described as heinous when targeted towards sick, disabled and elderly citizens before the court and in defiance of a pandemic.”

To the extent that these allegations relate directly to the merits of decisions or procedural rulings, they are subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(ii).

In other respects, any assertions of “willful misconduct” or bias appear entirely derivative of the merits-related charges, but to the extent the allegations are separate, they are wholly unsupported, and are therefore subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii) as “lacking sufficient evidence to raise an inference that misconduct has occurred.”

Judicial misconduct proceedings are not a substitute for the normal appellate review process, nor may they be used to obtain reversal of a decision or a new trial.

This is the Burkes’ third merits-related and conclusory judicial misconduct complaint.

The Burkes are WARNED that should they, together or separately, file a further merits-related, conclusory, frivolous, or repetitive complaint, their right to file complaints may be suspended and, unless they are able to show cause why they should not be barred from filing future complaints, the suspension will continue indefinitely.

See Rule IO(a), Rules for Judicial-Conduct and Judicial-Disability Proceedings.

The complaint is DISMISSED.

Priscilla R. Owen
Chief United States Circuit Judge
November 8, 2020

Overview

A successful threat management process consists of 10 basic elements, each integral to all the others. They compose the golden rules of contemporary threat management and demonstrate how the judiciary can identify, assess, investigate, and manage risks of violence to judicial officials. Following these 10 rules will allow the judicial threat manager to implement an effective threat management process.

10 Golden Rules for Effective Threat Management

Rule 1.

Recognize the Need for a Threat Management Process

Rule 2.

Assign Responsibility of Managing Cases to Trained Threat Managers

Rule 3.

Provide Training for and Establish Liaison With Protectees and Court Staff

Rule 4.

Create an Incident Tracking System With Well­ Documented Files

Rule 5.

Establish Liaison With Other Agencies

Rule 6.

Use Consistent and Valid Threat Assessment Methods

Rule 7.

Conduct Thorough Fact Finding

Rule 8.

Apply Threat Management Strategies Flexibly and Intelligently

Rule 9.

Communicate With Protectees in a Professional, Confident, and Competent Manner

Rule 10.

Manage Cases Appropriately

Rule 1. Recognize the Need for a Threat Management Process

Courts resolve disputes. They provide a neutral arena for judging emotionally charged controversies.

Disputants bring their quarrels before the bench. Each wants his or her claim sustained, each requests vindication. Most who stand before the court ultimately accept the court’s rulings, however adverse to their own interests. But some will not and only care for the result that most benefits them. When these individuals’ views clash with the court’s decision, violence may result.

Why do courts need threat management programs?

Because angry individuals, once denied their own sense of justice, may turn to violence for exoneration, vengeance, or even salvation.

They may direct their anger, revenge, and fears at the officials who personify the judicial process: the judges, prosecutors, clerks, and others who work within the system.

So it is no coincidence when these attacks occur at the courthouse, as the building itself symbolizes both dispensed and desired justice.

Without a competent threat management process to identify, assess, and manage potential threats, the justice system risks missing any opportunity to intervene and defuse the situation.

In addition, the number of these disgruntled individuals appears to be growing.

Reports at the federal level show a steady increase throughout the 1990s in inappropriate communications or contacts (IC&Cs) directed toward federal jurists.

The number of IC&Cs reported to the U.S. Marshals Service rose from a couple of hundred a year in the early 1990s to more than 700 in 2004.

Since 1979, three federal judges have been killed. In March 2005, a former claimant and suspect confessed to killing a federal judge’s husband and mother. Prior to 1979, only one federal judge was killed.1

Clearly, a ground shift occurred that resulted in a significant increase in the risk to federal judicial officials.

No comparable national data have yet been compiled on the risks to state and local judicial officials.

Informal research by the National Sheriffs’ Association (NSA) suggests that during the past 35 years, eight state or local judges have been killed.

Another 13 were physically assaulted.

Three local prosecutors were killed, four assaulted.

At least 5 law enforcement officers have been killed at local courthouses, 27 assaulted. At least 42 court participants have been killed at local courthouses and 53 assaulted.

In March 2005, a Fulton County, Georgia, jail prisoner delayed his escape long enough to seek out the judge presiding at his trial. After overpowering a deputy sheriff, he killed the judge and a court reporter in the courtroom, then killed another deputy sheriff outside the courthouse.

Risks to State and Local Judicial Officials: The Past 35 Years

8 state or local judges have been killed.

13 state or local judges have been physically assaulted.

3 local prosecutors have been killed.

4 local prosecutors have been assaulted.

5, if not more, law enforcement officers have been killed at local courthouses.

27 law enforcement officers have been assaulted at local courthouses.

42 court participants have been killed at local courthouses.

53 court participants have been assaulted at local courthouses.

A 1999 survey of 1,029 Pennsylvania state judges found that 51.8 percent reported being the target ofan IC&C sometime during the previous year.

In addition, more than 25 percent of the 1,029 state judges were physically approached, 1.2 percent were assaulted, and—more disturbing—more than one ­third admitted that they had changed their judicial conduct as a result of the experience.

Judges compelled to change their judicial conduct may sacrifice justice for security.

The risk extends beyond the individual jurists and goes directly to the ability of government at the state, local, or federal levels to ensure justice to its citizenry.

Attacks on the judiciary are assaults on the system of justice—one of the most crucial elements  of democratic self ­government.

Rule 2. Assign Responsibility of Managing Cases to Trained Threat Managers

Establishing a threat assessment process must be emphasized, rather than a threat management unit or program, because a specific composition or quantity of resources should be determined locally. Depending on the size of the court, potential number of IC&Cs that might be reported, and number of cases that might be opened, the threat management process can be handled by a fully staffed unit of threat managers or by one person as a part­time collateral responsibility. Workload should be the principal criterion for determining the number of personnel and resources dedicated to the process.

Whatever the size or composition, whoever is assigned threat management responsibilities should be trained, and the training should be refreshed periodically. A number of organizations provide threat management training, and there is a growing library of research, articles, and books on contemporary threat management that can be accessed to better prepare staff. In addition, agencies and organizations, including the Office of Justice Programs’ Bureau of Justice Assistance, are reexamining concepts such as “secure by design” to determine their role in this crime prevention arena.

Rule 3. Provide Training for and Establish Liaison With Protectees and Court Staff

The next step in establishing an effective threat management process is to train court staff in what to report and how to report IC&Cs. Training staff helps the threat manager obtain the initial facts, unembellished by exaggeration or worry, as quickly as possible. Although key staff like judges, prosecutors, and chief clerks should be well trained, the majority of reports the threat manager will receive will come from receptionists, mail handlers, perimeter security officers, parking lot attendants, telephone operators,

cafeteria staff, and the newsstand operator. These are the people who deal most with the public.  They  are more likely to see, hear, or  receive  any  IC&Cs, no matter who is targeted. Training them on what information to report and how to report it will ensure that the threat manager gets reports on IC&Cs in a timely and accurate manner.

Rule 4. Create an Incident Tracking System With Well­ Documented Files

Controlling the flow of information requires information management. Depending on workload, managing the information may require something as simple as an index card system or as sophisticated as a computer database. The system needs to be designed to  retrieve information quickly and efficiently. It should include not only demographics on the subject, but also key words used by or topics of known interest to the subject. The latter may prove crucial in identifying anonymous subjects. At a minimum, the following variables should be captured for each IC&C:

Case synopsis.

Case specifics.

How the IC&C was delivered.

Content of and exact quotes from the IC&C.

Suspect’s demographics.

Target’s demographics.

Suspect’s motive, especially in relation to a court case.

With information on these variables, the threat manager can manage current cases, cross­reference previous cases, share information on contentious cases or problem individuals as a case works its way up the appellate process or across jurisdictions, and create an institutional memory for that judicial setting.

Whatever system is created, it should be designed for easy sharing with other agencies and jurisdictions, ideally as part of regional and national information­ sharing networks.

Rule 5. Establish Liaison With Other Agencies

It is absolutely vital for the threat manager to reach out beyond the courthouse to make contact with law enforcement agencies, private security firms that provide protective services, and other judicial entities. The threat manager must have information flowing from all sources, both inside and outside the courthouse, because only through information can the threat manager begin to fill in the pieces of the puzzle. Information from disparate sources can link one IC&C to another and reveal relationships, motives, past behaviors, and previous actions of the subject—in and out of court.

Rule 6. Use Consistent and Valid Threat Assessment Methods

After receiving the initial IC&C report and gathering as many facts as are immediately available, the threat manager must next make an initial assessment from which to design the immediate protective response, set a course of fact finding, and begin identifying the most appropriate threat management strategies. A number of experts have developed some facile assessment tools to help the manager think through the case. For example, there are now tools that provide a comprehensive approach when used together. Threat managers can apply each tool in every assessment, as each allows the threat manager to examine what is known from a different angle. In combination, they provide a thorough assessment of the entire situation. Employing all of these tools helps the threat manager identify what is not known, thus giving direction to the protective fact finding.

These assessment tools address four broad but related questions. In each case, the threat manager should always ask:

What are the circumstances surrounding and context of the IC&C?

What stakes are involved, from the subject’s point of view?

Each of these questions focuses on different aspects of the subject’s behaviors, motive, and intentions.

The first question simply requires the threat manager to describe the IC&C, how it was delivered, to whom it was delivered and directed, what message it says or conveys, and what may have prompted it.

The second question deals with what may be at stake in any court case involving the subject. It addresses how desperate or driven toward violence the subject feels.

The third question seeks to determine if the subject has engaged in behaviors common to attackers or assassins.

The fourth question takes the opposite tack and asks if the subject’s behaviors compare similarly to the way non-attackers behave.

Rule 7. Conduct Thorough Fact Finding

Protective fact finding focuses on collecting facts concerning the circumstances of the IC&C and what prompted it, the subject, the target’s relation to the subject, the subject’s past behaviors, and the subject’s current behaviors. The purpose is to gather enough information and evidence to support an accurate and complete reassessment of the potential risks and the best way to defuse them. The judicial setting contains two valuable aspects, each of which offers a distinct advantage to the threat manager.

First, the target and his or her staff can be an  invaluable source of  information  about  the  subject, the subject’s issues and motive, and the subject’s demeanor under stress. For instance, because most IC&Cs to judicial officials are initiated by a court case, the target frequently  has  some  knowledge  or suspicion about the subject and knows the details  of the case. Often, court employees have observed how the subject behaved in  court.  In  addition,  court records are readily available in the clerk’s office.

Reviewing the records of the case may educate the threat manager about the issues and motivations that

assessing how desperate the subject may feel is readily available from the case files, the target, the IC&C, court staff who have dealt with the subject, and the subject’s friends and family, as well as through interviews with the subject.

Rule 8. Apply Threat Management Strategies Flexibly and Intelligently

The strategies for defusing the risk to judicial officials are best conceptualized as different options arrayed along a spectrum, where each option falls within the range that is determined by the option’s effect on the subject. The spectrum reaches from discreet, passive defensive measures at one end to intrusive, confrontational acts at the  opposite  end.  The strategies run the gamut from doing nothing that directly affects the subject to  using  the  authority  of the law to restrain the suspect. The figure below illustrates the range of threat management strategies available for defusing the risk to judicial officials.

Figure 1: Threat Management Strategies

The threat manager should consider all of the strategies, weighing the effectiveness of each given the particular and unique aspects of the case at hand. Each one has specific advantages and disadvantages, and each should be used only when certain conditions apply.

The threat manager must determine which one offers the best chance for defusing the risk in the case at hand at that particular moment.

Once a strategy has been identified and implemented, the threat manager should immediately recognize that the situation has changed precisely because a strategy has been employed.

The change requires reevaluating the case, assessment, and strategy, which may result in using other strategies.

Rule 9. Communicate With Protectees in a Professional, Confident, and Competent Manner

The threat manager should take care, by word  and deed, to reassure the target and his or her staff that  the threat manager is a  professional  problem-solver and that the responses to the incidents are under control.

In implementing the appropriate protective responses, the threat manager should never increase the protectee’s and staff’s fears  by  projecting  the wrong attitude or sharing information they might misinterpret.

Frequent updates and open lines of communication with the protectees and their staff will help the threat manager keep them calm, attentive to instructions, and willing to follow the threat manager’s lead.

Judges, counted on to “be in charge,” are frequently tempted to take charge. This should be avoided.

The threat manager should always provide some protective response every time an IC&C is reported. Protective responses range from providing a security briefing at a minimum to a full­fledged  protective detail or target relocation at the maximum.

The selection of the appropriate protective response should be directly proportioned to the assessment and findings of any protective investigation.

Always providing some level of protective response serves two purposes.

First, it enhances the protectee’s security. Even a security briefing reminds the protectee to take simple precautions and be aware of and immediately report any suspicious incidents.

Naturally, going up the scale of protective responses adds even more security. Provided that each response is in proportion to the threat assessment, the results of the protective fact finding, and the success of the threat management strategies, the threat manager will maintain a balance between needed security and limited resources.

Second, always implementing some degree of protective response sends a positive signal to the protectee. It helps underscore the threat manager’s professionalism, competence, and concern. That signal will help allay the protectee’s fears and give him or her the reassurance that everything necessary is being done.

Rule 10. Manage Cases Appropriately

Threat management cases are seldom open and shut. They begin when an IC&C, not necessarily a crime, has been directed toward a protectee. But unlike criminal cases, they have no climactic point of closing.

Even the most blatant and direct threatener can be arrested and convicted of that crime but continue threatening or, worse, plotting, from jail.

An  anonymous subject may direct an IC&C toward a judicial official, then never be heard from again.

When can either case be closed?

Neither arrest and conviction nor time’s cooling effects seem enough to support case closure.

Threat management cases are not about  investigating or solving crimes. They are about managing an individual’s behavior. Threat managers do not have a caseload of crimes assigned to them. Rather, threat managers are assigned problem individuals.

Consequently, a threat manager’s caseload is a hybrid between a criminal caseload and a parole or probation officer’s caseload.

Hence, it is recommended that threat managers avoid the terminology that has been historically used when opening or closing a threat management case.

Instead, it is preferred that cases be designated as one of the following:

Active.

Inactive.

Chronic or habitual.

Long term.

These designations are best suited for handling threat management cases.

Contemporary threat management for judicial officials seeks to avert violence altogether. The judiciary must expand its security from simply fortifying courthouses and reacting to violent attacks.

It needs to incorporate an effective threat management process for defusing the risk of violence before the violence erupts.

An effective threat management process does not infer the ability to predict violence. Instead, it entails establishing procedures to enable the threat manager to identify potential problem individuals, assess the seriousness of the risk, investigate  the circumstances, and then devise the appropriate strategies for managing the subject.

Implementing an effective threat management process requires the judiciary to follow the “10 golden rules.” Doing so will further enhance the judiciary’s security.

Other Matters

 On delegation from the district court or a district judge, magistrate judges may be assigned a wide range of other judicial duties in civil and criminal cases under authority of four distinct provisions of the Federal Magistrates Act. In summary, magistrate judges may –

(1) hear and determine with finality “any pretrial matter pending in the court” not dispositive of a party’s charge, claim, or defense;²²⁷

(2) hear and submit proposed findings of fact and recommended decision to a district judge on eight motions specified in the Act and any other matter that may dispose of a charge, claim, or defense, or a prisoner petition seeking post-trial relief or challenging conditions of confinement;²²⁸

(3) perform “such additional duties as are not inconsistent with the Constitution and laws of the United States;²²⁹ and

(4) with the consent of the parties, conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the ²³⁰

Magistrate judges have been assigned literally hundreds of different matters under these four authorities. For the most part, there is now little dispute over a magistrate judge’s authority. But there have been many court opinions discussing whether a particular matter in a particular case should have been handled by the court as a dispositive matter or non-dispositive matter, whether consent of the parties was needed, whether consent could be implied from a party’s conduct, and whether assignment of a particular matter was consistent with the Constitution and laws of the United States. If a question or dispute arises, circuit case law, which occasionally varies from circuit to circuit, must be consulted.²³¹

Disposition of Civil Cases on Consent of the Litigants

Under the 1979 amendments to the Federal Magistrates Act, a full-time magistrate judge may conduct any civil action or proceeding, including a jury or nonjury trial, and order the entry of finaljudgment in the case if all parties in the litigation consent.²³² Each district court has designated its magistrate judges to exercise this power, giving a magistrate judge authority over an entire civil case or any specified aspect of the case, such as a designated dispositive motion.

Consent Procedures

Case-dispositive proceedings before a magistrate judge are handled in the same manner as those before a district judge and must conform to the Federal Rules of Civil Procedure.²³³ An appeal from a judgment entered at a magistrate judge’s direction may be taken to the court of appeals as any

other appeal from a district-court judgment.²³⁴

The clerk of the district court, at the time a civil case is filed, must notify the parties of their opportunity to consent to the dispositive authority of a magistrate judge. The parties communicate their consent by filing a statement consenting to the reference, either jointly or separately.²³⁵  The Administrative Office has issued standard national forms for the notice, consent, and reference of both an entire civil case and a dispositive motion in a civil case.²³⁶

A district judge or magistrate judge may be informed of a party’s response to the notice only if all parties have consented to the referral. A district judge, magistrate judge, or other court official may remind the parties of a magistrate judge’s availability, but must also advise them that they are free to withhold consent without adverse substantive consequences.²³⁷  A district judge, for good cause shown, or on the judge’s own motion, or under any extraordinary circumstances shown by any party, may vacate a reference of a civil matter to a magistrate judge.²³⁸

Advantages of Consent

The Magistrate Judges Committee of the Judicial Conference recommends that district courts encourage and facilitate parties’ consent to magistrate judges’ decisional authority in civil cases. It points out that when magistrate judges exercise full authority in civil cases, district judges’ time is conserved and the court can manage its civil docket more effectively.²³⁹

Consenting to a magistrate judge also offers the parties the prospect of an early, firm trial date. Magistrate judges often have more flexible trial schedules than district judges because they do not preside over felony cases, which are given priority and may bump civil trials.

The parties are also more likely to consent when a magistrate judge has already become familiar with a case because of his or her pretrial management and discovery supervision in the case. The parties may feel comfortable with the magistrate judge from that experience. A practice adopted by a growing number of district courts is to facilitate consent by including magistrate judges on the civil case assignment wheel for direct assignment of a designated number or percentage of civil cases at filing, subject to later consent by the parties to full adjudication of the case by the magistrate judge.

It is the policy of the Department of Justice to encourage the use of magistrate judges to assist the courts in resolving civil disputes. “In conformity with this policy, the attorney for the government is encouraged to accede to a referral of an entire civil action for disposition by a magistrate judge, or to consent to the designation of a magistrate judge as special master if the attorney . . . determines that such a referral or designation is in the interest of the United States,” based on several standard factors.²⁴⁰

Constitutional Considerations

The constitutional authority for magistrate judges to decide civil cases with finality rests on two factors:

(1) consent of the parties, who freely waive their right to an Article III judge and opt instead to have a magistrate judge dispose of their case; and

(2) the status of magistrate judges as an integral part of the Article III district courts.

The circuit courts addressing the 1979 statute held unanimously that  the consent provision was consistent with the requirements of Article III of theConstitution.²⁴¹

The Supreme Court did not address the constitutional question directly, but it referred to the consent authority of magistrate judges on several occasions without apparent constitutional concern.²⁴²

Then, after more than 30 years of case law stability, the Supreme Court considered three challenges to the constitutionality of almost identical provisions in the statute defining the authority of bankruptcy judges.

The 1984 bankruptcy provisions were modeled closely on the 1976 and 1979 amendments to the Federal Magistrates Act.²⁴³

So the bankruptcy challenges clearly implicated the constitutional authority of magistrate judges. Like magistrate judges, bankruptcy judges are non- Article III judicial officers of the Article III district courts.

They are appointed by the respective courts of appeals for 14-year terms and serve collectively as a unit of the district court.²⁴⁴

Under the parallel bankruptcy statute, a bankruptcy judge may decide with finality a “core” bankruptcy proceeding²⁴⁵ – just as a magistrate judge may decide a non-dispositive motion in a civil or criminal case.²⁴⁶ On the other hand, a “non-core” proceeding is essentially an independent state-law claim “related to” the bankruptcy case that may only be determined by an Article III district judge.²⁴⁷

Consequently, a bankruptcy judge who hears a “non-core” proceeding in a bankruptcy case must file proposed findings of fact and conclusions of law for de novo review by a district judge²⁴⁸

– just as a magistrate judge must file a report and recommendations when handling a case-dispositive motion in a civil or criminal case.²⁴⁹

With the consent of the parties, however, a bankruptcy judge may decide a “non-core” Article III matter with finality²⁵⁰ – just as a magistrate judge may decide a civil case with consent.²⁵¹

In 2011, the Supreme Court introduced considerable jurisdictional uncertainty when it ruled by a 5 to 4 vote in Stern v. Marshall²⁵² that a counterclaim by the bankruptcy estate against a person filing claims against the estate – a claim that the bankruptcy statute specifically designates as a “core” bankruptcy proceeding – was a state-created common-law claim lying beyond the authority of a non-Article III judge to order final judgment. Stern dealt only with one category of “core”

bankruptcy claim, but it raised the strong possibility that other types of “core” proceedings regularly decided by bankruptcy judges could also be held to lie outside their constitutional authority to determine.

Of particular concern in Stern, moreover, was the “formalistic and unbending” approach and restrictive language that the majority used in interpreting Article III,²⁵³ raising the specter that the Court in future opinions might impose additional limits on the authority of both bankruptcy judges and magistrate judges. The four dissenting justices argued strongly that the majority in Stern had broken with recent, controlling precedents in which the Court had applied a pragmatic approach in evaluating claims that a particular congressional delegation of adjudicatory authority violates separation-of-power principles derived from Article III.²⁵⁴

In 2014, the Supreme Court considered a second case in which a bankruptcy judge had decided a statutory “core” proceeding that under Stern may be a claim reserved for a district judge to decide – a fraudulent conveyance claim. But in Executive Benefits Ins. Agency v. Arkison,²⁵⁵ the Court avoided the constitutional problems posed by Stern. Instead, it held narrowly that the district court in the case had cured any constitutional error because on appeal it had reviewed de novo the bankruptcy judge’s grant of summary judgment and had entered its own judgment.

The Supreme Court did not discuss the key issue of litigant consent, even though raised by the parties. Instead, the unanimous opinion prescribed a practical solution whenever a potential conflict arises between the bankruptcy statute and Article III. The Court instructed that when a bankruptcy judge is presented with a claim that the statute designates as “core,” but Article III reserves for decision by a district judge, the bankruptcy judge should treat the claim as a “non-core” proceeding and issue proposed findings of fact and conclusions of law for a district judge to review de novo and enter judgment.

In 2015, the Supreme Court finally resolved the consent issue in the third bankruptcy case,

Wellness Int’l Network, Ltd. v. Sharif.²⁵⁶ By a 6 to 3 vote, it took a sharp turn from the formalistic

language of Stern and returned to the pragmatic approach of recent Court precedents, holding that bankruptcy judges may adjudicate non-core Article III claims as long as the parties knowingly and voluntarily consent.

The Court was clearly aware of the practical impact that the case would have on the magistrate judge system, as well as on the bankruptcy courts, and it included numerous references to magistrate judges in its opinion and case law analysis. It noted at the outset that –

Congress has . . . authorized the appointment of bankruptcy and magistrate judges, who do not enjoy the protection of Article III, to assist Article III courts in their work.

. . . And it is no exaggeration to say that without the distinguished services of these judicial colleagues, the work of the federal court system would grind nearly to a halt.²⁵⁷

The Court emphasized that consent is central to the constitutional analysis, pointing out that adjudication by consent has been a feature of the federal court system since the early  days of the republic.²⁵⁸

The Court relied especially on the “foundational case” of Commodity Futures Trading Comm’n v. Schor,²⁵⁹ reasoning that the right to adjudication before an Article III court is personal in nature and may be waived by the litigants.²⁶⁰

But the litigants’ waiver of their “personal right” to an Article III court, by itself, is not always determinative because Article III also serves a structural purpose that the litigants may not waive – to protect the public’s interest in the institutional integrity of the judicial branch.²⁶¹

The Court explained that the lesson to be drawn from precedent is “plain.”

The entitlement to an Article III adjudicator is “a personal right” and thus ordinarily “subject to waiver.” . . . Article III also serves a structural purpose, “barring congressional attempts ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and thereby prevent[ing] ‘the encroachment or aggrandizement of one branch at the expense of the other.’” . . .

But allowing [non-Article III] adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process.”²⁶²

Thus, the question for the Court was whether allowing non-Article III bankruptcy judges to decide Article III Stern claims by consent would “impermissibly threate[n] the institutional integrity of the Judicial Branch.”²⁶³

That question, the Court said, must be decided not by “formalistic and unbending rules,” but with an eye to the “practical effect” that the practice will have on the constitutionally assigned role of the federal judiciary.”²⁶⁴

The Court, liberally quoting precedent, concluded that allowing bankruptcy litigants to waive the right to Article III adjudication of Stern claims does not usurp the constitutional prerogatives of Article III courts because –

Bankruptcy judges, like magistrate judges, “are appointed and subject to removal by Article III judges……………………. They “serve as judicial officers of the United States district court,” . . . and collectively “constitute a unit of the district court” for that district. . . Just as “[t]he ‘ultimate decision’ whether to invoke [a] magistrate [judge’s] assistance is made by the district court,”……………………. bankruptcy courts hear matters solely on a district court’s reference,…… which the district court may withdraw sua sponte or at the request of a party…… “[S]eparation of powers concerns are diminished” when, as here, “the decision to invoke [a non-Article III forum] is left entirely to the parties and the power of the federal judiciary to take jurisdiction” remains in place.²⁶⁵

The Court also emphasized the practical benefits to the judiciary of having its non-Article III judges resolve claims submitted to them by mutual consent of the litigants.

Congress could choose to rest the full share of the Judiciary’s labor on the shoulders of Article III judges. Instead, Congress has supplemented the capacity of district courts through the able assistance of bankruptcy judges.

So long as those judges are subject to control by the Article III courts, their work poses no threat to the separation of powers.²⁶⁶

Wellness Int’l Network, Ltd. v. Sharif, thus, put to rest the uncertainty that the Stern decision had raised over the constitutionality of the consent authority of bankruptcy judges and magistrate judges.²⁶⁷

As a result, it is clearly appropriate for the parties in any civil case in the district court, in accordance with 28 U.S.C. § 636(c), to consent to a magistrate judge determining their case, or any part of the case, and ordering entry of final judgment.

If the parties do not consent to the dispositive authority of a magistrate judge under 28 U.S.C. 636(c), the court may still proceed under 28 U.S.C. § 636(b), which authorizes a magistrate judge to –

hear and determine with finality any “non-dispositive” matter pending before the court, e., a pretrial matter not dispositive of a party’s charge, claim, or defense;²⁶⁸ and

hear and submit proposed findings of fact and recommended decision to a district judge on eight “dispositive” motions specified in the statute²⁶⁹ and any other matter that may dispose of a charge, claim, or ²⁷⁰

When there is uncertainty as to whether a particular matter is in fact “dispositive” of a claim or defense, consideration should be given to the practical procedure that the Supreme Court laid out in Executive Benefits Ins. Agency v. Arkison.

It instructs bankruptcy judges to treat questionable claims as dispositive proceedings and file proposed findings of fact and conclusions of law for de novo review and entry of judgment by a district judge.

Though the advice in Arkison was directed specifically to bankruptcy judges, it appears equally apt for magistrate judges in civil cases.

Implied Consent

 In Wellness Int’l Network, Ltd. v. Sharif, the Supreme Court held that the parties’ consent must be knowing and voluntary, but it need not be express. Consent may be inferred from a party’s conduct in certain circumstances.²⁷¹

In interpreting the consent provision of the bankruptcy statute, the Court relieved heavily on its 2003 holding in Roell v. Withrow,²⁷² interpreting the parallel consent provisions in the Federal Magistrates Act. In Roell, the Court noted that 28 U.S.C. § 636(c) authorizes a magistrate judge to decide a civil case upon “the consent of the parties,” but does not specify the form of the consent.²⁷³ This unadorned language, the Court said, contrasts with other language in the Act requiring that consent to a magistrate judge be made in writing.²⁷⁴ Moreover, these textual clues are reinforced by a good pragmatic reason to believe that Congress intended to permit implied consent. By giving magistrate judges case-dispositive civil authority, Congress hoped to create a supplemental resource that would promote judicial efficiency, relieve the district courts’ civil workloads, and improve public access to the courts.²⁷⁵

In Roell, the Court acknowledged that imposing a requirement of express consent would provide a simple bright line test and minimize any risk of compromising the right to an Article III judge. But it would also open the door to sandbagging, gamesmanship and potential waste of court time and effort by undeserving and opportunistic litigants. Thus, when a party has signaled

to a magistrate judge’s authority through “actions rather than words” –

The bright line is not worth the downside. We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the Article III right is substantially honored.²⁷⁶

The Court added that the specific referral procedures prescribed in the Federal Rules of Civil Procedure are by no means just advisory. Nevertheless, the text and structure of the statute as a whole and the Congressional intent suggest that a defect in the referral to a magistrate judge does not invalidate the reference so long as the parties have in fact voluntarily consented.”²⁷⁷

In extending Roell to the bankruptcy courts, the Court explained in Wellness that the implied consent standard “possesses the same pragmatic virtues – increasing judicial efficiency and checking gamesmanship – that motivated our adoption of it for consent-based adjudications by magistrate judges.”²⁷⁸

But the Court also cautioned that –

Even though the Constitution does not require that consent be express, it is good practice for courts to seek express statements of consent or nonconsent, both to ensure irrefutably that any waiver of the right to Article III adjudication is knowing and voluntary and to limit subsequent litigation over the consent issue. Statutes or judicial rules may require express consent where the Constitution does not.²⁷⁹

The “good practice” advised by the Supreme Court is for courts to encourage parties to express their consent early and in writing by adhering to the procedures laid out in FED. R. CIV. P. 73 and AO Form 85.

Nevertheless, in Wellness and Roell, the Court left the door slightly ajar to additional litigation over whether a party’s consent to a magistrate judge may be implied in specific factual circumstances “through actions rather than words.” Those instances of implied consent, however, should be limited and exceptional.

Contempt Authority

 Magistrate judges were given contempt powers by the Federal Courts Improvement Act of 2000.²⁸⁰

They may exercise  summary criminal  contempt  authority to  punish  any misbehavior occurring in their presence that obstructs the administration of justice.²⁸¹

This summary authority enables them to control the courtroom, maintain order, and protect the court’s dignity in response to contumacious behavior by witnesses, parties, counsel, and others present at court proceedings.

The maximum penalties that a magistrate judge may impose for criminal contempt are 30 days of incarceration and a fine of $5,000.²⁸²

Additional criminal contempt authority is provided to magistrate judges in those cases where they have final decision-making authority – civil consent cases under 28 U.S.C. § 636(c) and criminal misdemeanor cases under 18 U.S.C. § 3401. In those cases, they may punish as criminal contempt misbehavior occurring outside their presence that constitutes disobedience or resistance

to their lawful writ, process, order, rule, decree, or command.²⁸³  This authority enables them to enforce their orders and vindicate the district court’s authority over cases tried by a magistrate judge.

Disposition of contempt under this authority, though, must be conducted on notice and hearing under the Federal Rules of Criminal Procedure.

The maximum penalties that a magistrate judge may impose are the same as those for summary criminal contempt – up to 30 days of incarceration and a $5,000 fine.

Some contumacious conduct may be so egregious as to require more severe punishment. Therefore, magistrate judges may also certify the facts of a criminal contempt occurring in their presence, or outside their presence in any matter referred to them, to a district judge for further contempt proceedings.²⁸⁴

Magistrate judges may exercise civil contempt authority only in civil consent cases under 28 U.S.C. § 636(c) and criminal misdemeanor cases under 18 U.S.C. § 3401.

Their authority in these cases is identical to that of a district judge.²⁸⁵

The limited civil contempt authority, though, does not restrict limit the authority of magistrate judges to order sanctions under any other statute or provision of the federal rules.

An appeal from a magistrate judge’s contempt order in a civil consent case under 28 U.S.C. 636(c) lies to the court of appeals. An appeal of any other contempt order issued by a magistrate judge is taken to a district judge.²⁸⁶ The underlying principle behind the statute is that an appeal of a magistrate judge’s contempt order should be heard by the same court that hears the appeal of the final judgment in the case.

Statistics

 During the statistical year ended September 30, 2015, magistrate judges nationally disposed of 1,090,734 cases and proceedings nationally, including –

Conclusions

 The Federal Magistrates Act of 1968 initiated a landmark reform in the work of the federal courts by establishing a new cadre of federal judges within the district courts to assist district judges in disposing of their civil and criminal caseloads. Much of the genius of the Act lies in the great flexibility it provides to the courts. Among other things, it –

• authorizes the federal judiciary itself to establish or discontinue magistrate judge positions when caseload demands change, without having to return to Congress for additional legislation;
• vests the appointment of magistrate judges in the district courts themselves, rather than in the political process; and
• provides magistrate judges with broad judicial authority, as described throughout this paper, but gives each district court discretion to decide what specific duties and proceedings to delegate to its magistrate judges, based on the court’s local needs and circumstances.

The magistrate judge system has evolved greatly since enactment of the 1968 legislation. Many important and needed statutory changes were made to expand magistrate judge authority, install a strong merit-selection process, improve pay and benefits, and change the title of the office.

In addition, over the course of nearly 50 years, the federal judiciary initiated many significant internal enhancements to improve the process for evaluating, authorizing, and eliminating magistrate judge positions; inject greater rigor and diversity into the process for recruiting and appointing magistrate judges; improve and monitor all administrative aspects of the system; and control costs associated with the program,

Most importantly, the volume, range, and importance of the judicial work performed by magistrate judges has expanded greatly over the years as a result of the statutory increases in their judicial authority, prodding by the Congress for greater use of magistrate judges, promotion of greater utilization within the judiciary itself, a substantial increase in the prestige of magistrate judge positions, and favorable case law developments.

Magistrate judges today are an integral and indispensable component of the federal district courts. The great majority of districts use their magistrate judges effectively and extensively, and the remaining courts that delegate fewer duties are challenged by the judiciary on a regular basis to evaluate and expand their usage.

As the Supreme Court pointedly asserted in 2015:

“[I]t is no exaggeration to say that without the distinguished services of these judicial colleagues, the work of the federal court system would grind nearly to a halt.”²⁸⁸

In summary, to underscore the Supreme Court’s recent endorsement, it is fair to say that the magistrate judge system has clearly lived up to the twin objectives set by Congress in 1968 of:

(1) “reform[ing] the first echelon of the Federal judiciary into an effective component of a modern scheme of justice,” and (2) providing the district courts with an efficient supplemental judicial resource to assist in expediting their workload.²⁸⁹