Alan Kay Interview 4

Mr. Ernst: This is the fourth of a series of interviews with Magistrate Judge Alan
Kay, conducted in his chambers by Daniel Ernst. Today is Tuesday, August 19, 1997.
Last time we started discussing your career as a magistrate and in particular we paid attention
to your work as a mediator. Today what I would like to do is back up and have you describe your
caseload in general terms, then perhaps how the caseload is assigned to you, and then focus in on
a few specific areas. What is your caseload generally like?
Magistrate Judge Kay: I guess it might be well to preface it in terms of what the
jurisdiction is for a magistrate judge. Have we discussed that?
Mr. Ernst: We haven’t discussed it on tape.
Magistrate Judge Kay: We have statutory authorization to handle any matters
that are assigned to us by district judges. In the criminal area that involves handling preliminary
hearings and initial appearances, all criwinal matters that come into the court. We have petty
misdemeanor jurisdiction for trials, because course petty offenses are included in misdemeanors.
On the civil side, we have jurisdiction to handle any civil matters with the consent of the parties
except for requests for injunctive relief — TROs and preliminary injunctions. The bulk of our
caseload consists of civil cases which have been referred to us by district judges for full case
management, which means that we would have the case for all purposes until such time as the
case is ready for trial. That involves handling scheduling orders and discovery matters, including
reports and recommendations on dispositive motions, such as motion to dismiss and motions for
summary judgment. If the parties consent, we can have the dispositive motions ruled upon by
magistrate judges with a direct appeal to the court of appeals, should we grant a motion for
summary judgment or a motion to dismiss. In this jurisdiction we have three magistrate judges.
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We divide the criminal calendar among us so each judge has one month of handling of whatever
criminal matters come to us. On a daily basis we get new cases for initial appearances and,
generally speaking, we handle preliminary hearings on Mondays, Wednesdays, and Fridays. We
take return of indictments from the grand jurors. Generally speaking, we have more preliminary
hearings before us than in many other jurisdictions resulting perhaps because the United States
Attorney elects to indict at a later time. In many jurisdictions immediately after the initial
appearance, the U.S. Attorney’s Office will take the matter before the grand jury, and the
indictment can be handled within a day or two. That kind of timetable obviates the need for a
preliminary hearing, particularly in cases where the government is looking to detain the
defendant, because if the government requests a detention hearing that hearing has to be held
within three days. [An interruption occurs.] Where were we?
Mr. Ernst: We were discussing the criminal schedule.
Magistrate Judge Kay: We handle the preliminary hearings on Mondays,
Wednesdays, and Fridays. Generally that takes most of the morning calendar. Every afternoon
during that month we handle new cases that come in and conduct a preliminary hearing. So we fit
our civil calendar around the criminal calendar for the months we sit in criminal. The other
months we schedule civil matters, motions, trials, and consent trials. As a matter of fact, a
couple of years back I think the three magistrate judges handled 25 percent of the civil trials in
this court. That came about because we had five openings on the district court bench, and of
course the criminal calendar has to take precedence because of the speedy trial requirement. As a
result of that confluence, if you will, of only having ten active judges and some lengthy,
multiple-defendant criminal trials, many counsel agreed to have the cases tried by magistrate
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judges. And we tried, as I say, 25 percent of the civil trials in 1 year. The bulk of the civil work
is discovery. We are in a position to rule on discovery matters promptly. As a matter of course I
will tell lawyers when a case has been assigned to me for discovery that if they have a problem
with discovery to bring it to my attention promptly, and I will attempt to rule on the matter.
Summary judgment or motions to dismiss we handle on a report and recommendation basis, and
then they go up to the trial court who reviews them on a de novo basis, if they so desire.
Mr. Ernst: Is there is a de novo determination but typically not a de novo
hearing?
Magistrate Judge Kay: I think typically that’s true. I think they do look
summary judgment motions on a de novo basis.
Mr. Ernst: When you sit down to write your recommendation, is it a
recommendation that you feel you’re writing? Does it feel different from writing an opinion?
Magistrate Judge Kay: There is a slight difference. I take the approach that on
report and recommendation the reader needs slightly more information and more detail in the
factual description than I would consider putting into an opinion. Because there is another
judicial officer looking at that report and recommendation with a view to making a decision
based upon it, I have a tendency in writing reports and recommendations to go into somewhat
more detail in factual background than I might otherwise go into if it were just a straight opinion.
Mr. Ernst: Now I understand that there is a statutory requirement that each
district establish a plan to handle its caseload and assignments. I guess in the act it’s referred to
as the Civil Justice Expense and Delay Reduction Plan.
Magistrate Judge Kay: That is correct.
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Mr. Ernst: Are the assignments to you made pursuant to that plan? Is the plan
specific enough so that you refer to the plan?
Magistrate Judge Kay: We don’t refer to the plan, but the court reviewed that act
and its implementation and pursuant to that act I think the district court refers matters to us. The
act itself and the recommendations of the committee that reviewed the act — I’m not sure of the
name of the group, but there was a commission that was put together to make a recommendation
to the court — and the court accepted the recommendation that there should be greater utilization
of the magistrate judges by the district court judges. That was approved by the court, and I must
say that each judge takes it upon himself or herself to determine to what extent they will utilize
magistrate judges. Some judges use us more frequently than others.
Mr. Ernst: So, the question I was going to ask was what you knew about how
the preliminary civil work is assigned to you. One of the answers is that it varies a lot from judge
to judge.
Magistrate Judge Kay: If a judge decides that he or she wants to refer a case to a
magistrate judge for case management then we would have the case from the moment it is
referred to us until it is ready to go to trial, or until we submit a report and recommendation to the
trial court for action, such as a motion to dismiss or summary judgment. First the case goes to
the clerk’s office and then the deputy clerk assigns it to a magistrate judge. They do it on a
rotational basis on a wheel so to speak so that the caseload is evenly distributed between the three
magistrate judges. That does not foreclose a district judge from referring a case directly to or
designating a particular magistrate judge and that does occur.
Mr. Ernst: Do you have any formal or informal ways of signaling to the district
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judges that your workload is becoming excessive?
Magistrate Judge Kay: We have a liaison judge designated by the chief judge
and should our workload become excessive and it never has while I have been on the bench, I
don’t think we would be reticent to mention it to the liaison judge, or for that matter, to the chief
judge. The magistrate judges and the district court judges have a good relationship. There is a
sense of collegiality, and I think they are sensitive to our workload. Actually, I think there is an
over-sensitivity sometimes; they are concerned about increasing our caseload to a point where we
can’t, or they feel we may not be able to do an adequate job. So far, since I’ve been here, that’s
never been an issue.
Mr. Ernst: I take it that one issue that has come up in connection with your
criminal jurisdiction is the extent to which your preliIPJnary work is (in Chief Justice Burger’s
words) taking place under the district court’s total control and jurisdiction. Or as Justice
Black.mun put it, that there is a district judge waiting in the wings fuliy able to correct errors.7
Now in that case they were talking about review of evidentiary motions to suppress. We may
have to distinguish between your civil and criminal docket. What about that?
Magistrate Judge Kay: That assessment really has limited applicability to the
District of Columbia. Magistrate judges in this jurisdiction are not called upon by the district
judges to rule on criminal evidentiary motions so I don’t think that is a problem. In my 6 years
on the bench I recall only having one motion to suppress referred to me for an evidentiary
hearing. Most of our judges believe that it would be duplicative for magistrate judges to have an
evidentiary hearing which is then reviewed de novo, so that particular supervisory responsibility,
7 United States v. Raddatz, 447 U.S. 667 (1980).
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or watch dog role, has minimal applicability in this jurisdiction. There are some districts where
they do refer a lot of the criminal discovery and evidentiary motions to magistrate judges, but that
is a non-factor here. In the area of civil evidentiary and discovery matters, I have to say that
while many of the reports and recommendations are dispositive motions responded to by the
parties, very few of the evidentiary or discovery orders that I sign are appealed to the district
judges. Clearly they are there as a reviewing court, but it is not a power used extensively. I hope
to some degree that it is reflective of the quality of the magistrate judges work.
Mr. Ernst: Did you bring a philosophy, or a sort of a set of practices to case
management work when you started? Did you have set opinions about how the process should
go from your work as a litigator.
Magistrate Judge Kay: Maybe not consciously, but I suppose if you have
experience in the field of litigation you bring that experience with you. I certainly didn’t have
any set philosophy. I did have a perspective that discovery disputes should be resolved by
counsel if they possibly can and that it should be done in a professional manner. To the extent
that I tended, and maybe still tend, to be less tolerant of petty disputes, as I characterize them,
which result from a lack of communication, an unwillingness to pick up the phone, I find lawyers
who are unwilling to grant reasonable and short extensions of time for discovery responses not
in the best interests of the parties and not professional. What I did bring was a recollection of the
good old days — someone said people who talk about the good old days have short memories -but
I do recall when I started practicing law, and I’m going back now to the ’60s, there was a
greater willingness on the part of counsel to accommodate one another should there be a desire to
have another 10, 15, or 20 days to answer interrogatories, a willingness to accommodate by
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extending deposition dates. I am finding to a much greater extent today what is loosely described
as Rambo tactics, where the lawyers go out of their way to be hostile and non-accommodating.
To that extent I bring a background that perhaps pre-dates the current more hostile and
contentious relationships between lawyers.
Mr. Ernst: And is this more contentious relationship as likely to happen between
two Washington-based firms as outsiders?
Magistrate Judge Kay: Yes.
Mr. Ernst: So there isn’t a Washington legal community that is mediating
disputes?
Magistrate Judge Kay: No, I don’t see any discernible difference between local
and out-of-town practitioners. I find somewhat disquieting the comments made by lawyers who
are contemporaries of mine who are senior partners in major law firms. It’s not just the
Washington metropolitan area; I’ve experienced it in my travels to other areas of the country,
where so-called senior lawyers frequently bemoan the current state of lawyer-to-lawyer
relationships and point the finger at the young breed of lawyers, the new litigators. But I take the
time to ask them how much time they devote to counseling new young associates and
indoctrinate them into the more basic rules of civility. I ask them whether or not as a matter of
course they tell their young lawyers to be accommodating when someone wants an additional few
days to respond to a motion. I generally find that there is very little by way of instruction in what
very simply is good manners in dealing with one another.
Mr. Ernst: Do you have to assume that teaching role as a magistrate judge?
Magistrate Judge Kay: I sometimes assume that role as a magistrate judge. I’m
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not happy doing it because I don’t know if it should be the role of a judge to teach lawyers basic
civility. I think that is something that should be broached initially in law schools. Traditionally,
law schools deans and the whole academic community — and when I say traditionally, I mean as
expressed to me on many occasions — do not see their role to include teaching civility, but I think
in fairness to the academic community, that is changing. I think there is now an acceptance of
the fact that professionalism starts certainly in law school.
Mr. Ernst: I certainly can think of examples. Sherman Cohn on our faculty
makes professionalism a large part of what he tries to teach in his civil procedure course, but I
think there are also other colleagues of mine on the faculty who don’t see their job as socializing
students into proper norms of professional civility. In some cases it’s because they haven’t been
there themselves. I think it may be getting better, but I do certainly see what you mean.
Magistrate Judge Kay: You’re not talking about esoteric subjects. The ABA
commissioned a report — the MacCrate report — on legal education. A very, very distinguished
panel of academics sought to define and evaluate the current state of legal education and the
profession. In that report they emphasized the need for grading the aspects of legal education and
the profession as a continuum and based on that they strongly suggested that professionalism
should start at the law school.
classes start.
Mr. Ernst: Well this is a good discussion for me to be having a week before
Magistrate Judge Kay: Well, I get on a soap box because I think law professors
are such a vital cog in the wheel. Looking back to my own days as a law student, professors are
the first real contact students have with lawyers, and they are your initial role models. You may
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have an individual out there practicing law who is a relative, or a television character, or an
Edward Bennett Williams who in those days got a lot of publicity, but it’s your law professors
who really set the tone as to what a lawyer is. When I say lawyer, I mean from a professional
standpoint. I remember I had a law professor who felt very strongly that a lawyer’s responsibility
to his client surpassed every other aspect of the practice. He saw the lawyer as the hired gun if
you will, who has a responsibility to do anything for his client, including permitting the client to
lie on the stand. Well, it’s been many years since I’ve been in law school, but I really remember
30-odd years later being told that by a law professor, so you can imagine what is said in class
stays with law students. It has a Jesuitical character to it.
Mr. Ernst: Hey we don’t take that word lightly over at Georgetown.
Magistrate Judge Kay: But that first couple of years you impress them, just by
being lawyers and with what your philosophy is as a professor and how you think a lawyer
should act. So I’m delighted to hear you say that this is a good time to discuss it.
Mr. Ernst: It is. I must say just to leave the point, as a historian who has never
practiced, but who is aware of role model point that you raise, I actually can’t think in terms of
civility in my exchanges with my students. I tend to fall back on the humanistic method, a sense
of perspective and balance. There are some norms that I think we like to see associated with good
lawyers that I can do as a teacher, but I guess we do count, just speaking for me personally, on
there being a range of professors on the faculties. Not all of us are going to spend significant
parts of their career as practitioners who will be able to understand those professional norms, but
we’ve got to have some folks who are, in substantial part, so we don’t do it all at once, but I think
collectively a good law school will do it.
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Magistrate Judge Kay: I would hope so; obviously I can’t speak for every law
school. I know many, many law school deans from my dealings with the Council on Legal
Education. I have mixed feelings to this current wave of civility codes that is now permeating
the jurisdiction. To me it’s somewhat sad to think that it’s necessary to have a formalized code
for some of the most basic courtesies in dealing with lawyers and clients. Again, in an area we
may not want to stay with, as part of my responsibilities as chair of the multi-state professional
responsibility exam some years back, I had a meeting with bar counsel of various states. During
the course of those meetings I tried to discern what were the four or five most complained about
acts by lawyers with the full expectation that number one would involve money in some
way–commingling of funds-but the number one complaint was that the lawyer failed to return
telephone calls, and number two on the list was that my lawyer didn’t keep me apprized of what
was going on. Perhaps I have a little greater understanding of the second one, but certainly the
first one I find unconscionable. Regardless of the professional relationship, if you have a client
you have an obligation to return a telephone call. Not all professions are noted for doing that and
in the medical profession doctors don’t do that, as one law school dean told me, but I didn’t think
that was an excuse that lawyers could or should have.
Mr. Ernst: Switching gears, do you feel you have enough tools as a judge to
oversee the discovery process?
Magistrate Judge Kay: Yes. Rule 11 sanctions and the Federal Rules of Civil
Procedure, I think arm judges with sufficient weapons. I approach Rule 11 sanctions with
caution. (I shouldn’t go on the record and say that.) I try to generate, to the extent that I can, a
cooperative environment. Part of that process is to encourage lawyers to come in to see me
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promptly if they have a discovery problem. I tell them that if they run into difficulties during the
course of a deposition they shouldn’t hesitate to pick up the telephone and call me. If I’m
available I will try to resolve the dispute on the telephone, and if I can’t do it immediately I will
try to get back to them before the end of the day, rather than have a dispute on whether or not a
witnesses should answer a question or not fester and somehow poison the deposition.
Interestingly enough, the result is that I get very few telephone calls. Harken back to my own
days when I was taking depositions, not infrequently a lawyer will counsel his client not to
answer a question. A lawyer who is asking the question notes an objection. Sometimes they’ll
say in a posturing fashion, “Let’s go down and speak to the judge.” The other lawyer says,
“Okay, let’s go,” knowing that the judge is not going to have time to do it. When I make my
telephone available, those disputes, so far anyway, rarely result in a telephone call, somehow they
work out their problems, and that I think perhaps begins to foster more of a professional
relationship. I don’t know if they like one another any more, but at least they are unwilling to go
to battle.
Mr. Ernst: Let’s talk about your civil trial by consent jurisdiction. I have seen
statistics that the number of such trials were increasing in the District, but I am very impressed by
the figure of twenty-five percent.
Magistrate Judge Kay: That was one year, and as I say that was a year when we
had five openings on the district bench.
Mr. Ernst: The lawyers who seek this option, do you think they are looking for
the same kind of product as a traditional kind of trial? Or are they looking for a different
product? What are you giving them?
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Magistrate Judge Kay: I think we give them, particularly in a jury trial, we give
them a judicial forum which differs very, very little from what they are going to get through the
U.S. district judge. A jury trial is being tried to a jury whether it’s before a magistrate judge or a
U.S. district judge. Each judge, he or she, a district judge or a magistrate judge, brings their own
case management and trial personality to each trial. I think in a jury trial you get the same quality
of justice. In terms of a non-jury trial, the differences are as different from one judicial officer to
another, be he or she an Article III judge or a magistrate judge. In terms of the litigants or the
lawyers representing the litigants, in some instances having a trial sooner rather than later may be
a factor. In effect, we being magistrate judges afford lawyers an opportunity to judge shop, and
I’m not adverse to that philosophically at the magistrate judge level because I think if you are
going to consent to have your case tried before a magistrate judge, you should have the right
perhaps to select which magistrate judge you want to go before. I think that viewpoint would not
be universally held by my colleagues in this district or around the country. But my personal view
is that if you are going to consent to a trial before a magistrate judge, and you have a choice of
one of three judges, you might as well exercise that choice. You don’t have that luxury at the
district court level, although there is talk in Congress today that we should have one opportunity
to veto the trial court. I’m opposed to that. It may sound somewhat paradoxical that I am in
favor of it for magistrate judges but not in favor of it for district judges. But I’m going to stand
on my paradoxical opinion there.
Mr. Ernst: You see your role as an alternate to the Article III process. I mean is
this parallel to what happens when you’re talking to parties during mediation and you say, “Look
you don’t have to deal with me, but you chose to go through the mediation process?”
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Magistrate Judge Kay: That’s true. Or you have a choice of preparing before me
or going to take part in our mediation program, the ADR program of the court. I think there is a
point that should be made here. Frequently newspapers and the media generally criticize the
judicial system, particularly the federal judicial system delays in getting to trial. The magistrate
judge system today affords an opportunity to litigants to have their cases tried with a reasonable
degree of expedition. Just by way of example, if you can complete discovery within 2 or 3
months, a magistrate judge in this district can try the case, so you can get to trial in the District of
Columbia in a federal court, if you want to go to court, 6 months. There has been a lot of
publicity of the “rocket docket” in the Eastern District of Virginia where they generally expedite
discovery and give people a trial certainly within a year. I have found that there are many
litigants who are not anxious to get to trial rapidly. Without ascribing blame or fault in any way,
I think that many institutional defendants would prefer their cases to be tried later rather than
sooner. Whether or not they would go public with that, I think it’s a fact of life. If you are an
institutional defendant that is sued with a degree of frequency, particularly in the areas of torts or
personal injury where in all likelihood there is going to be a judgment of some sort against you,
perhaps you are better off delaying. I think that is an unfair criticism that some lawyers make of
the federal judicial system that we’re inordinately slow; that isn’t true. I think you can get to trial
very rapidly if you really want to get a jury trial by consenting to go before a magistrate judge.
They may counter and say well we’re not getting the same caliber of judicial officer, but I won’t
broach that.
Mr. Ernst: When I asked whether you would have felt the job was as attractive if
you didn’t have your civil trial by consent jurisdiction, you thought it wouldn’t. But it was also
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clear that you took great satisfaction from mediation and the other aspects of the work. What is it
about presiding over a civil trial that you would miss, that you find satisfying?
Magistrate Judge Kay: An additional facet of acting like a judicial officer is that
you are the end product, if you will, of the judicial mechanism of resolving a dispute. And by
and large it’s interesting, challenging, and demanding. Some cases are dull, but I think you’re
seeing the end result and that in and of itself is an interesting aspect and adds to the mix of
responsibilities that a judicial officer has. It completes the judicial officer’s role.
Mr. Ernst: I don’t know if you have had a lot of appeals from your trial rulings.
Magistrate Judge Kay: Appeals to the circuit court?
Mr. Ernst: Well, here I’m unclear. I take it that there is an initial appeal from
civil trial by consent to the district court. When we talked about Judge Holtzoff’s somewhat
famous incident where he felt that it was important that everyone knew that he felt he was part of
the same court, and you also referred to the collegial spirit which the district judges have treated
magistrate judges, has this been evident in appeals from your trial cases?
Magistrate Judge Kay: If we have assigned to us a case for discovery and reports
and recommendations of dispositive motions, any appeal from our discovery orders and review
of the reports and recommendations are handled by the district judges. If we have a case referred
to us with consent of the parties to handle cases through trial, the appeals from the result of the
trial go directly to the circuit court. So if I have a case for trial and one of the parties disagrees
with me, they go up to the court of appeals. Currently, the district court can act as an appellate
court in trials that magistrates hold but to the best of my knowledge that does not occur. Since
there has been no prior determination that there should be an appeal to the district judge, appeals
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from our decisions in consent cases go directly to the circuit court.
Mr. Ernst: And had that happened?
Magistrate Judge Kay: That’s happened at least four, maybe five, times that I
can think of offhand.
Mr. Ernst: Throughout this discussion you haven’t been speaking with reference
to individual cases, and I’m actually content to leave it that way, but if there are some individual
trials or individual appeals that you would like to discuss, I would be more than happy to do that.
Magistrate Judge Kay: Of the appeals taken from my decision I have been
fortunate in that the court of appeals has concurred in my rulings or the verdict of the jury. So I
have yet to be reversed. I say that with some degree of trepidation, and I certainly don’t want to
anger whatever powers that be. I’m sure the time will come when a panel of the court of appeals
disagrees with some conclusions that I’ve reached. And I hope when it does happen that I will
regard that as a comfort, in that another judge has the ability to correct any errors I made.
Mr. Ernst: Let’s talk about your criminal work for a few minutes. You had
argued a lot of probable cause cases as a legal aid lawyer. It wasn’t a direct transition to the
bench, but was that a hard process?
Magistrate Judge Kay: No, it wasn’t because a lot of the criminal matters we
handle as magistrate judges tend to be almost ministerial in nature because they are probable
cause hearings and don’t determine guilt or innocence. We’re dealing with a preponderance of
the evidence standard rather than a clear and convincing or beyond reasonable doubt. Generally
preliminary hearings are not complicated hearings. The detention aspect at times becomes
difficult, mainly because you have a Bail Reform Act passed by Congress in 1984 which directs
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judicial officers in pretrial detention to consider the least restrictive type of release standard. By
way of example, we have in this jurisdiction an unfortunate predilection on the part of many
people to carry and use guns; it is so endemic now that, from my personal standpoint as a judicial
officer, it seems to me if someone has a gun in their possession, sometimes even if they have a
gun in constructive possession, and it’s loaded and it’s an automatic weapon, you have to view
that possession as homicide waiting to happen. Sometimes one feels a desire to lock someone up
prior to trial when they are charged with being in possession of a loaded weapon, but the statute
directs us to release them because a man or woman is presumed to be innocent until proven
guilty. There is an element of discretion there, balancing your obligation to society and your
obligation to the individual defendant who certainly has rights as to whether or not he or she
should be released before trial. Sometimes that will pose a difficult choice. Occasionally, you
have a situation where you have a woman who is charged with a drug offense who is pregnant
and is currently on drugs or engaged in activities which are detrimental to her health and welfare
and to her baby, and you’re tom — is it going to be in her best interests to be locked up and at
least receive some medical treatment? These are factors which, I think if you spoke to many
people who are concerned about gender differences, why should a woman be treated any
differently than a man. You have no business considering the fact that she may be pregnant, that
it may perhaps be beneficial to her health to lock her up. Sometimes these are things that cross
your mind.
Mr. Ernst: Maybe I should get the Peretz case out of the way.8 Do magistrates
ever do voir dire in felony cases by consent?
8 Peretz v. United States, 501 U.S. 923 (1991).
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Magistrate Judge Kay: As a general statement, the answer is yes. In other
jurisdictions magistrate judges frequently voir dire jurors. I have only been requested on one
occasion to voir dire a felony jury panel and I think there will be some further discussions with
the district court to ascertain whether or not they would perhaps find it helpful for us to voir dire
jury panels in felony cases for them. They may decide that that would be helpful. To the extent
that it would save them time, I’m sure that we would be happy to do that.
Mr. Ernst: Do you think it would be a pretty substantial savings of time on the
criminal docket?
Magistrate Judge Kay: I think it would help in some cases. And if it would help
them then I am certainly prepared to do that. I’m not sure if I were trying a case I would delegate
selection of a jury to another judicial officer, but historically in some jurisdictions a judge would
go around and swear in juries for a whole slew of cases. Certainly in England a majority of the
voir dire is completed long before the jurors find their way into the courthouse. There are very
few challenges for cause; they weed out people before they come in, so I don’t think there is
anything magical about the trial judge conducting the voir dire. I would venture to suggest that
in certain cases perhaps it would not be appropriate to have any other judicial office- be it
magistrate judge or district judge-select the jury panel, but I think by and large if it were a
savings, we should be utilizing voir dire in that fashion.
Mr. Ernst: Let me ask your petty offense and misdemeanor jurisdiction. Is there
anything distinctive about having that jurisdiction here in Washington?
Magistrate Judge Kay: Distinctive only in the sense that we have national
landmarks which seem to attract individuals to exercise their First Amendment rights, as they see
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them, in a manner that sometimes transcends the criminal law. To that extent it may have a
somewhat higher profile. I guess if you are chaining yourself to the gate or the fence of the
monument somewhere in Illinois it would not gamer as much interest and press as being arrested
in front of the White House or on the Capitol steps here in Washington, D.C. To that extent it
has the appearance of being more high profile, but a protester is a protester. I guess if you
desecrate a monument or a government building, the nature of the crime perhaps is no different
whether it’s a state house in the capital of Georgia or Illinois or Washington, D.C. You
mentioned I think in another session about a protest — the Enola Gay protest — which made the
newspapers.9
routine case?
Mr. Ernst: I think we may have discussed that off the tape. But that was just a
Magistrate Judge Kay: It was a routine case in the sense that it was a group of
people and as I told them I believe they were well meaning and sincere. They were good people,
I think, by and large they were religious people. However, I think they were wrong in what they
did. They obtained some blood. When I asked one of them on the stand whether or not it was
indeed blood, he said yes. And they threw that blood on the Enola Gay, the airplane that dropped
the atomic bomb on Japan at the end of World War II, and generated a scuffle. They were
ostensibly trying to demonstrate their opposition to nuclear warfare on which I felt they didn’t
have a monopoly. My real concern, as I told them, was in this particular day and age when we
have incurable diseases that are spread by blood that if during the incident innocent bystanders,
or even security officers, had been splattered with that blood, it may have caused serious mental
9 The Washington Times, November 14, 1995.
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concern for a number of months, not knowing whether or not the blood may have been tainted
with some disease. Some of this activity could lead to innocent bystanders who are visiting
monuments being injured. So I did not view it as a prank but rather as a serious violation of law,
and I tried to make that point very clear to them. On the other hand, as I say, they were people
who were not unf arniliar with the criminal justice system and have made a practice of expressing
their views with the knowledge that they were engaging in civil disobedience. They deliberately
subjected themselves to some criminal punishment because they wanted to make their point by
being punished. If they had their choice they would have liked to have been put in prison, but
that is one of the guaranteed rights we have in our society for which I am very grateful.
Mr. Ernst: I was looking at some other aspects of your jurisdiction. I thought I
would just ask about some of them. Are habeas corpus petitions a large part of your work?
Magistrate Judge Kay: No, we don’t have many habeas corpus petitions come
through the magistrate judges. There are other districts where magistrate judges handle a
majority of the prose prisoner litigation. We don’t have the volume of prisoner litigation that
other districts have. Districts in Texas have literally three or four thousand prisoner litigation
cases filed but because we only one prison facility in the District of Columbia, the majority of
cases that are filed I guess would be filed in Virginia.
[END OF SIDE ONE OF TAPE]
Virtually all the prisoner prose cases are handled by the district judges. We now have three
pro se attorneys who are of great assistance to the court, and they do a lot of the preliminary
work, reports and recommendations on motions.
Mr. Ernst: Are these lawyers in practice?
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Magistrate Judge Kay: These are all lawyers who have a degree and experience,
and they are just outstanding and do a superb job. There has been some discussion, whether it
will come to pass I don’t know, that magistrate judges will go on the wheel with district judges
with respect to pro se litigation or perhaps even more specifically pro se prisoner litigation.
Mr. Ernst: Well I’m bound and determined to get through my list. 10 What about
review of Social Security?
Magistrate Judge Kay: We have Social Security cases but nowhere near the
volume you find in other jurisdictions. We will be assigned Social Security cases if they are
referred to us by district judges. I have had my share of Social Security cases.
Mr. Ernst: One question I have in general is how innovations among magistrate
judges and ideas about what magistrate judges can do pass from one court to another given the
great traditions of independence in the various U.S. district courts. Do the magistrate judges
compare notes? Does the Federal Judicial Center facilitate exchange by the Administrative
Office?
Magistrate Judge Kay: A resounding yes. Certainly the Federal Judicial Center
has been, since I have been on the bench, very active in putting together training programs. As a
group, magistrate judges, have at least one workshop per year. Every other year we get together
with four or five other circuits and have a 3-day program where not only are we brought up-todate
on issues such as evidence, and §1983 civil rights matters, but we also participate in
workshops with other magistrate judges around the country on how they handle both criminal
10 Loosely based on Hart and Wechsler’s Federal Courts and the Federal System, 4th
ed., (1996), 520.
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and civil matters. We have workshops in settlement; we have workshops in handling prisoner
cases. So there is a sharing, if you will, of practices in other jurisdictions. For example, other
districts make available orders so we don’t have to reinvent the wheel when there is new
legislation passed by Congress. The Federal Judicial Center puts out booklets on a regular basis
so there is certainly sharing of information that is very well received, and a utilization of
professors from around the country, and updates on what is happening in the Supreme Court.
We have Professor Chemerinsky come on a regular basis and mesmerize us. 11
Mr. Ernst: He mesmerized me when I interviewed at USC once. Having some
information about how magistrate judges function in other districts, have you seen things you
think don’t really work and are you happy with how they are done here? I guess specialization is
one issue.
Magistrate Judge Kay: I think you’ve touched on a very important point. I think
specialization is an area that both the Administrative Office and most magistrate judges would
tell you is not well received. I think Congress recognized this when it expanded the jurisdiction
of magistrate judges, that we can best serve the United States District Court by being generalists.
There are I am sure some U.S. district judges who would tell you that they would love to have
magistrate judges handle all the pro se prisoner litigation and all the Social Security cases. The
difficulty with that is that it would make us less useful to the district court, and there is a down
side to becoming a social security magistrate judge. Also I don’t think you bring the
independence that the federal judiciary brings to a review of administrative actions. I am a firm
11 Erwin Chemerinsky is the Legion Lex Professor of Law and Political Science at the
University of Southern California Law School.
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believer in magistrate judges handling the full panoply of issues that come before the district
court, recognizing there are limitations — constitutional limitations and limitations that Congress
has seen fit to build into the system, such as felony cases, and perhaps injunctive relief, I see
other districts where magistrate judges spend 80 and 90 percent of their time on prisoner
litigation. I think that would be very difficult for me to do. On the other side of that coin there
are at least three or four of them across the country where the magistrate judges are put on the
same wheel as district judges and the litigants have the option just before trial of having their
case tried by an Article III judge, or if they developed a relationship with a magistrate judge,
having a magistrate judge try the case by consent. So you have the two sides of that coin, and I
am in favor of no specialization.
Mr. Ernst: I’m glad we’re on this point because I think I may have mentioned in
our get-acquainted session that since I don’t practice, some of my questions might be bookish
and abstract. I actually did look at some of the scholarly literature, which does now seem
bookish and abstract, but let me pull a question from it, although I think you may have already
answered it. One view is that it is a good thing that magistrate judges are within the judiciary.
They are different from an ALJ in that they are within the judicial branch and that is a good thing
because it doesn’t intrude into the jurisdiction of Article III judges. Someone has turned that
around and said, but there is a danger here, and that is that judicial officers shouldn’t be in a
hierarchy with each other. A district judge is reviewed by an appellate judge but that’s different
than the relationship between a district judge and a magistrate judge. The magistrate judge in
theory has to think about re-appointment, or maybe more practically has to worry about the dayto-
day contents of his docket. The argument out there is that there may be pressure on magistrate
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judges not to take an unconventional argument or to avoid a risky decision at some point because
he or she would be concerned that there is a supervisor out there who wants to see the caseload
move. The danger is that the magistrate judge would tum into a character out of a “Dilbert”
comic strip: a character who would be a “trimmer,” or wouldn’t take risks. 12 What keeps that
from happening in your judgment? I take it you don’t think it happens.
Magistrate Judge Kay: I don’t think it happens. I would be hesitant to say it
never happens. I don’t have the same concerns as those critics. If the magistrate judge is going to
be a clone of the U.S. district judge because he or she wants to, in effect, do what he or she thinks
the district judge wants in terms of perhaps expediting the calendar or ruling in a particular way
in all likelihood whatever action taken the magistrate judge will probably be ratified by the U.S.
district judge. Those actions will ultimately find their way to an appellate court, who, if they find
the need, will take corrective action. District court judges are not free spirits. They are not
unilateral legislators, or unicameral legislators although some people have described them as
such. District judges and magistrate judges have to follow decisions that have been rendered by
the Supreme Court and the circuit court. To some degree our independence is circumscribed by
what the law is — what the statutes are and what the rules say. In terms of a lack of
independence, I frankly don’t see any difference at the magistrate judge level than I would see at
the district court level, where a district judge could be criticized as not wanting to rock the boat,
not wanting to generate an appeal, not wanting to take a position that he or she feels would not be
upheld on appeal. I don’t see excessive caution because of a lack of independence here, or
12 Note, Yale Law Journal, 88 (1979); 1023; in Hart and Wechsler’s Federal Courts and
the Federal System, 4th ed. (1996), 440-41.
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maybe since I don’t see it here, I find it difficult to see it in other courts. Could it happen? I
guess, yes.
Mr. Ernst: Would it be more likely to happen if there were specialization? If the
magistrate didn’t perceive him or herself as an all around judge?
Magistrate Judge Kay: Yes, I think there would be more of a tendency for it to
happen because if you were dealing with essentially the same issues all the time, those cases
would be reviewed by a district judge or group of district judges. You might have a tendency to
try to avoid the district judge overruling you, so you would in effect be catering to predilections
of judges receiving the case. Ultimately, it depends on the individual just as there are individual
district judges who, regardless of suggestions made by a circuit judge as to what they should or
shouldn’t do, will still independently call them as they see them. As the selection process brings
capable people, people with experience to the position you will be getting lawyers as magistrate
judges who have a sense of being independent, fair, and impartial judicial officers who follow the
law as they see it, although that sounds a little pie-in-the-sky or Pollyanna-ish, but that’s the
purpose of the selection process. And I would hope that it works that way.
Mr. Ernst: Okay, well here is a second question, perhaps a final one, that is
open-ended. It’s based on studies that traced the dockets of the federal district courts over a
long-term, and it noted how much they vary. There had been bulges during Prohibition and so
on, and then they noted the resourcefulness of the federal judiciary to respond to the changing
caseloads. Actually, I think much of the literature tells an optimistic story, but perhaps because
professors tend to be pessimistic, one study concluded on a gloomy note that the courts were in
danger of turning from agencies of adjudication to administration, or as the professor concluded,
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in the future the federal judiciary must face the delicate task of retaining the benefits of
administrative efficiency without becoming itself another insensitive bureau. 13 Do you think the
institution of magistrate judge here in the District as you’ve seen it gets the balance right?
Magistrate Judge Kay: As Brandeis once said, were you able to keep the balance
true? Well, I’m going to take the optimistic viewpoint and say yes. I don’t know if there is an
appropriate adjudicatory process in the abstract. I think we have a mechanism, or have
established a mechanism, of resolving disputes between people, companies, governments, and
other entities in a society that is vastly more complex today than it was 10, 20, or 100 years ago.
We have a complex discovery and inordinate costs associated with going to trial, so the
adjudicatory process today is vastly more expensive. The volume is obviously much greater than
it was in past decades, and the issues that come before trial courts are now much more intrusive
in people’s dealings with one another. Courts are now called upon to rule on children’s haircuts,
school uniforms, matters that certainly never 100 years ago would have found their way into a
courtroom. So the courts are burdened in terms of volume, and the types of cases not. The
overwhelming majority of cases do not involve weighty constitutional issues. The volume of
cases have caused a rise in the bureaucracy within the court system in terms of case management.
There is a greater awareness of delay, of a need to expedite cases. There is pressure on courts to
keep the calendar moving. To what extent does that enhance or take away from the judicial
process? There are some people who say there are certain jurisdictions where they have
expedited dockets with a limitation on the amount of discovery and that it hurts the judicial
13 David S. Clark, “Adjudication to Administration: A Statistical Analysis of Federal
District Courts in the Twentieth Century,” Southern California Law Review, 55 (November
1981).
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process. Other people will say, we have found it does not, that you can get by. I think Justice
Goldberg once said very, very few cases need more than five depositions, and I can assure you
that the majority of cases have more than five depositions. How much of that discovery is
utilized in a court trial? Very little, I think. Only a small percentage of discovery ultimately
becomes a useful tool in the actual trial. I think the nature of litigation that finds its way into
court encourages a different type of adjudicatory process than we once knew. I’m less critical of
the process becoming more bureaucratic because I don’t see any alternative to it. I find that
statement, while probably true, not necessarily an unexpected result, given the society we have
today.
Mr. Ernst: That’s a quite useful response. I think that concludes the questions
that I had at this point. I learned an awful lot from this.
Magistrate Judge Kay: Let me interject. One other aspect of magistrate judging
that I think is worthy of note is the area of mediation, and I think we talked about this. I just
want to re-emphasize it. I think that because magistrate judges are judicial officers can they
fulfill a role in the hierarchy of trial judges, if you will, that really provides a benefit to the
district court. We discussed earlier when you asked me the question if a judge brought a
different mien to the mediating role, and I think I said to you it does. I’m convinced that in the
years to come magistrate judges will assume a greater role as settlement judges. I think I have to
make cautionary note pertaining to settlement in that there is a tendency, if you’re a district judge
— to follow on along with what you were saying about expedition and managing a calendar — to
look at your calendar and say, I should send the majority of these cases down to some magistrate
judge to settle, nothing ventured, nothing gained. That of course can really encroach and take up
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a lot of time on magistrate judge’s calendar. I’m talking generally that there has to be some
balancing in terms of the number of cases that are sent down to magistrate judges to resolve by
way of settlement. But having said that, the opportunity to have a judicial officer settle a case
will work to the district court’s benefit down the road. Hopefully it will play a role in the case
management and resolution process. As I indicated to you earlier, magistrate judges are finding
more and more workshops being made available to them involving settlement and settlement
techniques so that as a group of judicial officers I think we will acquire a collective expertise and
become better settlement judges.
Mr. Ernst: Judge, I’m glad you stopped me to make that point because that was
the really important thing that I learned last time and I couldn’t find it in the federal jurisdiction
course book or any of the writings on the magistrates. It’ s a real contribution of the job to the
judicial system, and I would hope anyone who read that transcript from last time would have
spotted it too. It’s really important to emphasize that.
Magistrate Judge Kay: I’ve had several hundred cases for settlement since I’ve
been a magistrate, and I hope some of them have been worthwhile resolutions.
Mr. Ernst: Well with the possible exception of a final session to address any
issues that come up after you’ve reviewed the full transcripts, I think that’s it. Thank you very
much.
Magistrate Judge Kay: My pleasure.
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