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Bar News - December 21, 2016


Opinion: To Thine Title Be True: Mistitling of the Magistrate Judge

By:

The United States Magistrate Judge position has roots reaching into the eighteenth century and was formally created through congressional legislation nearly 50 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.”

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. The United States Code and federal court rules were modified to reflect the title change. 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.

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.”

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 as in practice.

One 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.

Why This Matters

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 that 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.


Ruth Dapper is a litigation attorney in the San Diego office of Littler Mendelson, having previously served as a federal judicial clerk. This article was submitted for publication in Bar News by Magistrate Judge Robert Collings of the District of Massachusetts and is modified from a 2015 law review article published in the Federal Courts Law Review.

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