Nov. 15, 2016
By Ruth Dapper
The United States Magistrate Judge position has roots reaching into the eighteenth century and was formally created through congressional legislation nearly fifty years ago. In 1990, as the magistrate judge role was modified and expanded, Congress passed legislation modifying the position's title from United States Magistrate to United States Magistrate Judge. Despite the passage of a quarter century since the title change, the judicial position continues to be incompletely referred to as "magistrate." This article explores the prevalence of the titling error in an effort to promote the accurate reference to magistrate judges.
Creation of the magistrate judge
The magistrate judge is the result of congressional action under Article I of the Constitution of the United States, rather than authority provided in Article III. Even so, magistrate judges are not a separate court, and instead serve in the United States District Court, along with district judges. Magistrate judges are appointed by each district's district judges for eight-year terms and require reappointment, unlike some other federal judges who enjoy lifetime tenure.
Although forms of the magistrate judge have existed for many years, it was the Federal Magistrates Act of 1968 that created "a new class of federal judicial officers" to relieve the caseloads of United States District Courts. Magistrate judge duties depend on each district's needs, with magistrate judges handling duties ranging from criminal initial appearances, detention hearings, and arraignments, to civil settlement conferences, discovery motions, and consent jury trials. Dispositive matters may also be "referred" by a district judge for the preparation of a "report and recommendation" by a magistrate judge. The number of full-time magistrate judge positions has increased greatly over the years, and there are now 536 full-time and 34 part-time magistrate judge positions. The Supreme Court recently remarked: "[I]t is no exaggeration to say that without the distinguished service of [magistrate judges], the work of the federal court system would grind nearly to a halt."
Initially, magistrate judges were referred to as "magistrates." In 1990, after years of discussion, the title of the office changed through the Judicial Improvements Act of 1990, which provides:
CHANGE OF NAME OF UNITED STATES MAGISTRATES.
After the enactment of this Act, each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge, and any reference to any United States magistrate or magistrate that is contained in title 28, United States Code, in any other Federal statute, or in any regulation of any department or agency of the United States in the executive branch that was issued before the enactment of this Act, shall be deemed to refer to a United States magistrate judge appointed under section 631 of title 28, United States Code.
Following the title change, the United States Code was modified to reflect the "magistrate judge" title throughout. Federal rules comport with the statutes, with "a magistrate judge" being included in the definition of "Federal judge" in the Federal Rules of Criminal Procedure. The remainder of the criminal Rules, as well as the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure, and Federal Rules of Evidence all include the full magistrate judge title throughout, with numerous Rules including notes to address the 1990 title change.
Now more than 25 years since the 1990 legislation, the term "magistrate judge" has been the title longer than "magistrate" was. The Federal Magistrate Judges Association continues to advocate for use of the proper title, as well as address the misconception that magistrate judges and district judges sit in separate courts.
Mistitling of the magistrate judge
With the unanimity of the statutes and rules, one might assume courts would be equally consistent in their use of the modified magistrate judge title. However, opinions of the Supreme Court of the United States have misstated the title of the magistrate judge several times. An opinion from 2006, for example, described the underlying federal district court proceedings by noting the court "assigned the case to a Magistrate who conducted discovery." The opinion continued by discussing what "the Magistrate recommended" and that the district judge "accepted the Magistrate's recommendation." Some mentions of "magistrate" may be understandable because they do not identify a United States Magistrate Judge but instead refer to a neutral magistrate, state proceeding, or foreign tribunal. Even removing these instances from consideration, numerous judicial opinions issued well after the passage of the 1990 Act reference "the Magistrate." At times use of the truncated title is not a mistake, but instead is by design. At least two recent Supreme Court opinions provide, "A Federal Magistrate Judge (Magistrate)," thereby defining the title as "Magistrate" and referring to the magistrate judge accordingly for the balance of the text. The Supreme Court is not alone, with recent federal court of appeals opinions from every federal circuit court including instances of similar magistrate judge mistitling.
The widespread use of "magistrate" alone is not limited to judicial opinions, and is prevalent in secondary sources as well. This is true despite magistrate judges receiving considerably less discussion in scholarship than federal appellate judges. Instances of mistaken mistitling abound, as do more purposeful instances such as: "For the purposes of this Note, the term 'judge' refers to a district judge, appeals court judge, or Supreme Court Justice …. The term 'magistrate' refers to a United States magistrate judge …." Top-ranked law reviews are not immune to mistitling, with recent publications by the flagship journals of some of the nation's top law schools printing statements such as, "Like U.S. Magistrates, they are appointed by the judiciary itself, but lack the full protections of … the Article III judiciary." One published note on objections to magistrate judge rulings identified the Judicial Improvements Act of 1990 as changing the magistrate judge title, but continued to reference "magistrates." Perhaps unsurprisingly considering the other cited sources, Westlaw includes a "key number" entry entitled "United States Magistrates."
Instances of the mistitling are plentiful in practice as well. Recognizing the importance of referring to a judge by his or her proper title, some courts have taken it upon themselves to educate parties. One order by a district judge provided:
Unaccountably, the rest of defendant's brief incompletely and incorrectly refers to "Magistrate Margolis" or "the Magistrate." One is constrained to wonder whether the United States Attorney's office is either unaware of, or chose in this case to disregard out of pique, [the Judicial Improvements Act of 1990]. Twenty-two years should be sufficient time for the denizens of a United States Attorney's office to learn the legally correct way to refer to a Magistrate Judge, a judicial officer sensible attorneys routinely address as "Judge." Throughout this Ruling I will respectfully refer to "Judge Margolis."
In another instance, a magistrate judge who left the state bench to join the federal bench recalls an attorney asking her why she "gave up being a judge" (presumably referencing her state court service) in order to be a "magistrate." Another magistrate judge reports a litigant asked him if he was training to be a real judge. There have even been instances when litigants have referred to a magistrate judge by last name only. In one instance, attorneys from "three prestigious firms," attempting to skirt local word count rules, responded to an objection to a report and recommendation prepared by a magistrate judge but referred to the magistrate judge by her last name alone. The district judge evaluating the objection noted, "[T]his Court cannot recall reading a motion, brief, or other paper—even from the most hapless of pro se litigants—that referred to a federal magistrate judge by her last name only. No one does this because it is disrespectful to the magistrate judge." Although not as extreme as removing the title altogether, referring to a magistrate judge by the wrong title is no less inaccurate or disrespectful to the position.
Why this matters
This article is not an indictment of any court, publication, or person. Instead, it is intended as a wake-up call. When magistrate judges, empowered through an act of Congress and serving a court created by Article III, are repeatedly addressed incorrectly by their colleagues, the inaccuracy reflects poorly on the judiciary. When practitioners and scholars make the same omission, it reflects poorly on the profession. Admittedly, in light of the weighty issues presented to the courts each day, the title of any judicial officer is not paramount. But the legal profession is built on the premise
words matter. The value of words carries with it the value of titles. Using "magistrate" to refer to a magistrate judge artificially removes these judicial officers from their post in the judiciary.
The change of the magistrate judge title was made to educate litigants about the magistrate judges' status as judicial officers. Decades have passed since the title change, and it is time for a more uniform change in the language of those trained in the law.
About the author
Ruth Dapper is a litigation attorney in the San Diego office of Littler Mendelson P.C., having previously served as a federal judicial clerk. This article is modified from a law review article published in the Federal Courts Law Review, which contains citations to the publications discussed herein.
See Ruth Dapper,
A Judge by Any Other Name? Mistitling of the United States Magistrate Judge, 9 Fed. Cts. L. Rev. 1 (2015),
available at http://www.fclr.org/fclr/articles/pdf/Dapper_Final_Publication2_Vol9_Issue2.pdf.