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Wednesday, April 15, 2015

The Fifth Circuit Jumps the Non-Article III Shark

A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.

The facts of Hollingsworth are pretty straightforward; David Hollingsworth was tried and convicted before a federal magistrate judge in the Eastern District of Louisiana for simple assault at the Naval Air Station Joint Reverse Base New Orleans in Belle Chasse, a "federal enclave" that is within the "special maritime and territorial jurisdiction of the United States." No one disputes that Hollingsworth's crime is a "petty offense" under federal law, because the maximum sentence he could have received was six months' imprisonment. Hollingsworth was tried without a jury before a non-Article III federal judge, and, after an unsuccessful appeal to the district court, appealed his conviction to the Fifth Circuit on the grounds that such a trial (without his consent) before a non-Article III judge violated Article III and his Sixth Amendment right to a jury trial. 

Writing for a 2-1 majority, Judge Clement held that Hollingsworth's claims were foreclosed by the Supreme Court's 1973 decision in Palmore v. United StatesPalmore, readers may recall, upheld Congress's power to create a non-Article III court of general jurisdiction within the District of Columbia, almost entirely based upon Justice White's (flawed) analogy of the D.C. Superior Court to state courts. But while Palmore's reasoning has been heavily criticized, the basic proposition it establishes (that Congress can establish non-Article III courts in federal territories) is generally accepted today. Thus, Judge Clement concludes, "[U]nder Palmore, Hollingsworth has no constitutional right to trial before an Art. III court. . . . Pursuant to Clause 17, Congress could have referred all trials for crimes committed at Belle Chasse to an Article I judge, including felony trials.But Congress chose to refer only trials for petty offenses to federal magistrate judges."

In other words, Judge Clement reads into Congress's (in her view, greater) power to create non-Article III courts in federal territories the arguably lesser power to have magistrate judges try all offenses committed within those territories--and it's just Congress's good graces that stopped it from empowering magistrate judges to try anything other than petty offenses in this case. 

The problem with this analysis is that it misreads the relevant statutes, and thereby conflates two very different justifications for non-Article III adjudication. The justification for territorial courts is tied entirely to Congress's unique (and plenary) regulatory power over federal territories; the justification for trying petty offenses before magistrate judges is tied entirely to a different consideration--that there's no right to trial by jury in such cases, regardless of where they are committed (indeed, this is the almost tautological conclusion of Part II of Judge Clement's opinion). Thus, Hollingsworth was tried under the general (and aterritiorial) statutory authority that empowers federal magistrate judges to try petty offenses without a jury even if the defendant doesn't consent.

Indeed, the only reason why the territorial location is significant in Hollingsworth is because simple assault is only a federal offense (albeit a petty one) when committed within the "special maritime and territorial jurisdiction of the United States." But once it's established that Hollingsworth has committed a federal offense, the fact that it was committed on a federal enclave is irrelevant to the statutory (and, in my view, constitutional) authority of the magistrate judge. In other words, Hollingsworth has nothing at all to do with Palmore. Given that I don't think it follows from Palmore that magistrate judges can try any offense committed on federal territory (for a bunch of reasons that I plan to elaborate upon in future writings), it was therefore completely unnecessary for the Fifth Circuit to decide this (novel) question.

Instead, the real question is whether non-Article III magistrate judges may generally try petty offenses without the defendant's consent. But as I've explained at some length in my (hot-off-the-presses) article on military courts, the Supreme Court has long equated the validity of non-Article III adjudication, at least in criminal cases, with the absence of a right to trial by jury. Note that this doesn't explain Palmore (where the defendant clearly did have a right to trial by jury), but that it does explain, among other lines of jurisprudence, nearly all of the Court's military justice case law, and the power of non-Article III federal courts in the insular territories (where the jury-trial provisions arguably don't apply) to try all criminal offenses.

In other words, instead of relying upon a settled line of non-Article III precedent (pursuant to which, contra Judge Higginson's dissent, non-Article III judges are allowed to try petty offenses), the Fifth Circuit unnecessarily (and, in my view, improperly) extended Palmore--a troubling enough precedent in its own right--to allow Congress to subject all offenses committed on federal territories to trial by magistrate judges. 

Oy.

Posted by Steve Vladeck on April 15, 2015 at 10:41 AM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink

Comments

I don't understand why you think Clement is misreading the relevant statutes or conflating two very different justifications for non-Article III adjudication. It seems to me that she's simply resolving the constitutional question under the relevant statute on an as-applied basis rather than a facial basis -- indeed, in a way that seems more narrow and more justifiable than the alternative basis that you suggest.

It's clear that there was general statutory authorization to try Hollingsworth for this petty offense before a federal magistrate judge. The question is whether that statutory authorization is constitutional under Article III. She could resolve that question against him in one of two ways: (1) the statute is facially valid, because there's no right to an Article III judge in any case where there's no right to a jury; or (2) the statute is at least valid as-applied to territorial prosecutions, because there's no right to an Article III judge for offenses committed in federal territories.

She picked 2, whereas you'd prefer for her to pick 1. But there's no obvious reason why 2 is "less necessary" or "broader." Even accepting your characterization that 2 is somehow an "extension" of Palmore, it's still limited to federal territories. Whereas 1 would deprive people throughout the country of an Article III judge for minor offenses, which seems like a much broader and more unnecessary holding.

Moreover, 1 also seems less justifiable to me than 2. In determining when Article III's protections are inapplicable, it seems to me that lack of jury-trial right is less relevant than territorial locus. The mere fact that a defendant lacks a right to a jury says very little about whether he should at least have a right to a federal judge who has the independence provided by federal tenure and salary protections. Whereas the fact that the defendant committed a crime in federal territory -- a place where the federal govt has plenary police power like the states, rather than just limited and enumerated powers -- at least arguably suggests that the federal govt should have broader power to control the judges adjudicating the offense, just as states do.

To be clear, I'm not necessarily agreeing with the territorial justification -- I'm just saying that it seems both more defensible and more narrow than the no-jury justification.

Posted by: Hash | Apr 15, 2015 12:51:32 PM

Hi Hash -- I guess my reaction is colored by precedent. If these questions had come to the Fifth Circuit on a blank slate, I'd agree with your framing, and with your point that all Judge Clement did was to choose one of two alternative paths to reaching the same result.

The problem is that the slate's not clean. Precedent _clearly_ supports the power of magistrate judges to try petty offenses; precedent does _not_ clearly support the power of magistrate judges (as opposed to territorial courts) to try all offenses committed on federal enclaves. Thus, in taking what you describe as the "as-applied" route, Judge Clement in fact resolved a question _not_ resolved by precedent, whereas the "facial" route _was_ already settled. I'm not saying this is somehow an _inappropriate_ exercise of judicial power; rather that it's unwise and unnecessary.

But to be clear, I'd feel differently if I felt differently about Palmore. If I thought it followed from Article I, Clause 17 that Congress could subject all matters arising within federal territories and enclaves to non-Article III adjudication, then I'd probably agree with Judge Clement (and, I gather, you) that Congress can also choose to have those matters adjudicated by magistrate judges in addition to territorial courts. Palmore doesn't specifically hold that, but I'd understand the extension of Palmore to reach that conclusion.

For reasons that have been well documented elsewhere, however, there are any number of grounds on which we should dispute that conclusion--and be very critical of the desultory treatment Justice White gives to the countervailing considerations in Palmore. I'm therefore inclined to read Palmore narrowly--and to _not_ assume it applies beyond its facts.

That's why it seems to me that the far narrower route here would have been to rest on the fact that this is a petty offense, and _not_ the more vulnerable conclusion that magistrate judges can try _any_ offense, including felonies, committed in a federal enclave. In other words, although it may seem in the abstract that the narrower path was the "as-applied" approach, the stability (or lack thereof) of the relevant precedents should've made the "facial" approach far more straightforward.

Posted by: Steve Vladeck | Apr 15, 2015 1:06:56 PM

Not sure I understand, Steve. Assuming that Congress has the authority to treat offenses in the STMJ the same as it treats offenses in territories, I think you agree that Palmore, even if wrongly decided, would allow Congress to provide that this offense be tried in an STMJ court. But you'd draw a distinction between such a territorial court and a federal magistrate who sits outside the STMJ, right? If so, why? The rationale of Palmore (and again, I share your doubts about it, but it's the law) is simply that Article III's protections don't apply to conduct "arising under" the laws uniquely applicable in the territories. If the same reasoning applies to conduct undertaken in the STMJ, what difference does it make whether a magistrate or an STMJ judge or a territorial judge presides?

Posted by: Marty Lederman | Apr 15, 2015 3:39:29 PM

Thanks for the response Steve. I guess my continued confusion is two-fold:

1) it doesn't really seem like this is a material extension of Palmore, for the reason identified by Marty -- namely, the difference between territorial/STMJ courts and magistrate judges seems utterly irrelevant to the rationale of Palmore (such as it is); and

2) what's the "clear" precedent authorizing magistrate judges to try petty offenses? From the reference to your article, you seem to be referencing cases authorizing military trials. But, like territories, that strikes me as limited in scope. Is there a SCt precedent that "clearly" authorizes magistrate judges to try petty offenses that occur in geographic locations over which the fed govt doesn't have plenary power? That would be quite remarkable, and I'm guessing it doesn't exist, because then Clement presumably would have relied on it and Higginson wouldn't have dissented.

Posted by: Hash | Apr 15, 2015 4:03:50 PM

Thanks Marty and Hash -- I'm really glad to have the chance to flesh this out a bit more. Let me focus on Hash's most recent comment, since that incorporates Marty's:

To Hash's first point, I'm not actually _sure_ that there's no distinction between a non-Article III territorial court and a magistrate judge. In Palmore itself, Justice White made quite a lot (too much, as it turns out) of the analogy between territorial courts of general jurisdiction and state courts--and the idea that Congress was certainly free to create a quasi-state court in a federal territory. In his words, "we have courts the focus of whose work is primarily upon cases arising under the District of Columbia Code and to other matters of strictly local concern." Similar _logic_ may produce the same result for the SMTJ, but I'm not sure it's obvious that it "follows."

More importantly, to Hash's second point, I'm unfamiliar with a _Supreme Court_ case expressly so holding--if only because the few times that the Supreme Court _has_ held that petty offenses may be tried by magistrate judges have, perhaps coincidentally, involved cases arising in the District of Columbia. (See, e.g., District of Columbia v. Clawans, 300 U.S. 637 (1937).)

That said, there are dozens--if not hundreds--of lower court cases assuming the validity of 3401(b) as applied to petty offenses, nearly all of which originate from federal courts sitting in states (and not in federal territories or the SMTJ). Few of these cases involve detailed discussions of _why_ 3401(b) is constitutional as applied to petty offenses, but I think that's because the matter is largely assumed. Once again, the key is the connection in the Court's jurisprudence between jury-trial rights and non-Article III criminal adjudication.

Just to be clear, others may believe that the more vulnerable constitutional principle here is that one, i.e., that petty offenses may be tried before non-Article III judges. All I'm trying to argue is that, at least within the federal courts literature with which I'm familiar, Palmore is the more vulnerable constitutional principle here--and so a holding resting on _it_ seems more troubling than one resting on the power of magistrate judges to try petty offenses committed anywhere within the United States--and not just in federal enclaves.

Posted by: Steve Vladeck | Apr 15, 2015 4:31:08 PM

Been ages since I looked at the cases, but I seem to recall that 3401 magistrate trials of petty offenses are only ok because they are (i) consensual and (ii) subject to control by Art. III judges.

Posted by: Marty Lederman | Apr 15, 2015 4:37:49 PM

Been ages since I looked at the cases, but I seem to recall that 3401 magistrate trials of petty offenses are only ok because they are (i) consensual and (ii) subject to control by Art. III judges.

Posted by: Marty Lederman | Apr 15, 2015 4:37:49 PM

It's consensual for non-petty offense misdemeanors. (Everyone in Hollingsworth agreed it was a petty offense and the defendant explicitly did not consent to trial before a magistrate.)

https://www.law.cornell.edu/uscode/text/18/3401

Posted by: Bryan G. | Apr 15, 2015 4:45:49 PM

Do any federal enclaves have locally elected legislatures like the D.C. City Council or territorial legislatures, and do those who support the Fifth Circuit's decision here think that such legislatures would be constitutional?

Posted by: Will Baude | Apr 15, 2015 10:43:12 PM

Will: I don't know the factual answer to your question about local legislatures for federal enclaves. But as a legal matter, I'm hard-pressed to understand why Congress can constitutionally delegate its legislative power over D.C. and the territories, but not over an enclave. (If anything, the opposite seems true, since the delegation is much more sweeping for the former than the latter.) And regardless, even if there were some theory of the legislative non-delegation doctrine where the latter was improper even though the former was not, it's far from clear that the same distinction would be appropriate in the judicial non-delegation context.

Posted by: Hash | Apr 16, 2015 12:39:55 AM

PS. Among other things, the legislative non-delegation doctrine seems more robust than the judicial non-delegation doctrine in at least some importantly analogous ways. For example, Congress could never allow a State legislature to pass *federal* laws that governed that State, but Congress can and does almost invariably allow State judges to adjudicate federal civil claims.

Posted by: Hash | Apr 16, 2015 12:43:16 AM

PPS. On further reflection, I'm not sure the example in my last post is right. A state court adjudicating a federal civil claim isn't necessarily wielding federal adjudicative power if if its *judgment* is treated as a state decree rather than a federal one. Regardless, though, I stand by the conclusions in my penultimate post about the relationships between territories and enclaves for legislative non-delegation, and between legislative and judicial non-delegation.

Posted by: Hash | Apr 16, 2015 7:27:26 AM

It does seem to me that the same distinction should apply in the two contexts, and that that's the best way to make sense of Marshall's opinion in Canter. So I'm glad Hash is at least receptive to the view that they would go together.

But I don't have a strong view about whether enclaves can have local governments.

Posted by: Will Baude | Apr 16, 2015 8:30:57 AM

It does seem to me that the same distinction should apply in the two contexts, and that that's the best way to make sense of Marshall's opinion in Canter. So I'm glad Hash is at least receptive to the view that they would go together.

But I don't have a strong view about whether enclaves can have local governments.

Posted by: Will Baude | Apr 16, 2015 8:31:01 AM

There's a larger question here, and one I've been puzzling with for some time--and that's whether there's any constitutionally significant difference in _how_ Congress chooses to authorize non-Article III "territorial" (or, perhaps more accurately, "Clause 17") adjudication. Putting aside Hollingsworth, consider the very different models that are the D.C. Superior Court on one hand and the U.S. District Courts for Guam, the CNMI, and the USVI, on the other: The former is a quasi-state court of general jurisdiction; the latter are quite closely analogous to Article III district courts, with only marginally broader statutory jurisdiction. I've always thought that Marshall's opinion in Canter (and Harlan's opinion in Zdanok) were directed at offering justifications for the _latter_ category. Is it clear what the constitutional justifications are for the former (especially since Congress has allowed each of the _other_ territories to create their _own_ local court systems)?

Posted by: Steve Vladeck | Apr 16, 2015 8:37:09 AM

And if I can take it back to Hollingsworth for a second, should it matter that Congress never _specifically_ authorized magistrate judges to try cases arising in the SMTJ, but _did_ specifically authorize them to try petty offenses without the defendant's consent regardless of where those offenses were committed? That is to say, should we require a clearer statement from Congress before we assume _which_ constitutional question it meant to provoke?

Posted by: Steve Vladeck | Apr 16, 2015 8:39:13 AM

Steve, your first set of questions are really interesting, and I'm not sure that I have any good responses. In addition to that, I wonder whether federalism plays a role, making territories and D.C. different than federal lands like bases and national parks, which may include stipulations of concurrent jurisdiction (and even if there are no stipulations of concurrent jurisdiction, may still implicates a state's parens patriae power.)

Posted by: Bryan G. | Apr 16, 2015 10:42:48 AM

Steve, your first set of questions are really interesting, and I'm not sure that I have any good responses. In addition to that, I wonder whether federalism plays a role, making territories and D.C. different than federal lands like bases and national parks, which may include stipulations of concurrent jurisdiction (and even if there are no stipulations of concurrent jurisdiction, may still implicates a state's parens patriae power.)

Posted by: Bryan G. | Apr 16, 2015 10:42:52 AM

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