(The Return of) Ignatz, by Sam Heldman

Sunday, February 23, 2003

Supreme Court predictions
The first case to be argued on Wed. 2/26, Roell v. Withrow, offers a quirky but occasionally important question about procedure in federal courts. The federal trial-level courts, the District Courts, have District Judges. But they also have Magistrates, who – unlike District Judges, Circuit Judges, and Supreme Court Justices – don't have life tenure; they are not "Article III" judges under the Constitution. Magistrates generally help out with the District Courts' work, handling pre-trial skirmishes, making recommendations to District Judges about how they should decide cases, and (when the parties all consent, see 28 U.S.C. § 636(c)) handling trials. This case is about that tricky word "consent" in the last clause of that sentence you just read.

Here, the plaintiff filed a written consent to having the magistrate handle the trial. Some defendants didn't, but everybody sort of overlooked that apparently, and the case went to trial in front of the magistrate. Defendants won, and were happy. Plaintiff, on appeal, says "hey, they never consented! The Magistrate never had jurisdiction to handle the trial! Do-over! Do-over!" Defendants say "no, we consent! Really, we consent!" Fifth Circuit says "because all defendants didn't consent before trial, got to have a do-over."

The fear, here, is that people will be sneaky: that they will intentionally not explicitly consent but will lay low about it, then if they win they'll say "I consent! I consent!" but if they lose they'll say "I never consented!" There are two ways to read the statute that would avoid this opportunity for gaming: (A) the Fifth Circuit's way (which would mean 'affirm'); or (B) by saying "if you go to trial before the Magistrate without screaming 'no! no! no! I don't consent!' then you've consented" (which would mean 'reverse'). The Supreme Court could pick one of those, or could instead say (c) "we're not so worried about that sort of gaming, and so we think that consent has to be explicit but after-the-fact explicit consent is OK" (which would also mean 'reverse'.)

Which way will they go? It could easily go either way. Frankly, if all you were doing was looking at the words of the statute, you'd probably agree with the Fifth Circuit (because the statute's words do seem to contemplate that the consent must precede the trial, and 'consent' usually means something more affirmative than 'not scream about'.) But the federal statutes about jurisdiction often tend not to be interpreted in a strict "plain language" way; they tend to be interpreted in ways that seem more "sensible" to the judges doing the interpreting. Without calling my shot as between option B and option C above, I'm saying "REVERSE."

posted by sam 6:54 AM 0 comments


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