author: Mr. Justice Brennan Mr. Chief Justice Burger,

text:
    WINGO, WARDEN v. WEDDING
    No. 73-846.
    Argued April 22, 1974
    Decided June 26, 1974

      James M. Ringo, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the brief was Ed W. Hancock, Attorney General.

      Joseph G. Glass argued the cause and filed a brief for respondent.

        Evette J. Younger, Attorney General, Jack B. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Frederick R. Millar, Jr., and Shunji Asari, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.

   Mr. Justice Brennan

delivered the opinion of the Court.

The question here is whether federal magistrates are authorized to conduct evidentiary hearings in federal habeas corpus cases. In 1968, Congress enacted the Federal Magistrates Act, 28 U. S. C. §§ 631-639, to upgrade and expand the former United States commissioner system. The Act authorizes magistrates to exercise all powers formerly exercised by United States commissioners, and also, as a means of relieving the caseload burden of the federal district judges, empowers magistrates to try minor offenses when all parties consent, and to perform such additional duties assigned by the district court as are “not inconsistent with the Constitution and laws of the United States.” Pursuant to the Act, the Judges of the United States District Court for the Western District of Kentucky amended Local Rule 16 of that court to provide:

“In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners the full-time Magistrate is directed to schedule and hear evidentiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided at that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration.”

Respondent is a state prisoner whose petition for federal habeas corpus relief was assigned by the District Court to a full-time Magistrate for processing under the rule. The part of the rule challenged here is that which directs the full-time magistrate “to schedule and hear evidentiary matters [to be electronically recorded] deemed by the Magistrate to be necessary and proper in the determination of . . . such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge [who] . . . [u]pon . . . request. . . shall proceed to hear the recording of the testimony . . . and give it de novo consideration.” The question is whether this portion of the rule is invalid because “inconsistent with the . . . laws of the United States” within the meaning of the Federal Magistrates Act, 28 U. S. C. § 636.(b), or because § 636 (b) itself should be construed to preclude district courts from assigning such duties to magistrates.

I

Respondent, Carl James Wedding, is a prisoner in the Kentucky State Penitentiary serving a life sentence imposed in 1949 by the Webster Circuit Court, Commonwealth of Kentucky, after a plea of guilty to a charge of willful murder. Wedding filed this petition for habeas corpus in 1971. After the Court of Appeals for the Sixth Circuit reversed the initial dismissal of his petition, 456 F. 2d 245 (1972), and remanded for an evidentiary hearing, the District Court invoked Local Rule 16 and assigned the case to a full-time Magistrate to hold the hearing. Wedding promptly moved that the Magistrate be disqualified and the hearing be reassigned to a District Judge, on the ground that the Federal Magistrates Act did not authorize district courts to assign to magistrates the duty to hold habeas corpus evidentiary hearings. When the District Court denied the motion, the Magistrate proceeded with the hearing, and electronically recorded all testimonial evidence as required by Local Rule 16. Thereafter, the Magistrate transmitted the recording of the testimony to the District Judge and submitted written findings of fact and conclusions of law recommending that the petition be dismissed.

Wedding moved that the District Court give the matter a de novo hearing. The District Judge's response was to listen, as authorized by Local Rule 16, to the recording of the hearing before the Magistrate. On this basis and the Magistrate's findings and conclusions, the District Court entered an order dismissing respondent’s petition.

On appeal, Wedding renewed his challenge to Local Rule 16, relying upon Holiday v. Johnston, 313 U. S. 342 (1941). Holiday was also a federal habeas corpus case. There, after determining that the petition for writ of habeas corpus alleged facts which, if proved, would entitle the petitioner to relief, the District Judge issued a writ compelling the respondent to produce the petitioner before a designated United States Commissioner. The Commissioner held an evidentiary hearing at which the petitioner testified and the respondent submitted the depositions of two witnesses. On the basis of the evidence received, the Commissioner made findings of fact and stated conclusions of law recommending that the writ be denied. After hearing oral argument on the Commissioner's report, the District Judge entered an order discharging the writ.

This Court reversed, holding that the factfinding procedure employed failed to conform to Congress' express command in the Habeas Corpus Act that “[t]he court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.” Rev. Stat. § 761, 28 U. S. C. §461 (1940 ed.) (emphasis added). The Court held that the statute plainly accords a prisoner the right of testifying before a judge, stating:

“One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner’s oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge’s own exercise of the function of the trier of the facts.
“The District Judge should himself have heard the prisoner’s testimony and, in the light of it and the other testimony, himself have found the facts and based his disposition of the cause upon his findings.” Holiday v. Johnston, supra, at 352, 353-354.

Wedding contended that neither the text nor legislative history of the Federal Magistrates Act evidences a congressional intent to overrule Holiday. The Court of Appeals agreed and accordingly “vacate[d] the judgment of dismissal and remand [ed] the case with instructions that the [District] Court itself hold an evidentiary hearing on [Wedding’s] constitutional claims.” 483 F. 2d 1131, 1137 (CA6 1973). We granted certiorari, 414 U. S. 1157 (1974). We affirm.

II

Under our constitutional framework, the “great constitutional privilege” of habeas corpus, Ex parte Bollman 4 Cranch 75, 95 (1807) (Marshall, C. J.), has historically provided “a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release.” Fay v. Noia,, 372 U. S. 391, 401-402 (1963). More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, Congress has expressly vested plenary power in the federal courts “for taking testimony and trying the facts anew in habeas hearings . ...” Fay v. Noia, supra, at 416. See also Townsend v. Sain, 372 U. S. 293, 312 (1963).

In connection with the 1948 revision and recodification of the Judicial Code, Rev. Stat. § 761, construed in Holiday, and other procedural provisions of the Habeas Corpus Act were consolidated into 28 U. S. C. § 2243. The pertinent portion covering habeas corpus evidentiary hearings provides that “[t]he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” The Revisers thus deleted some words from Rev. Stat. § 761, but the Revisers’ Notes accompanying § 2243, together with the reports of the Committee of the Judiciary of the Senate, and of the House, make abundantly clear that the word changes and omissions in Rev. Stat. § 761 were intended only as changes in form.

Accordingly, the construction of § 2243 has been that given § 761 in Holiday. United States v. Hayman, 342 U. S. 205, 213 n. 16 (1952); Brown v. Allen, 344 U. S. 443, 462-463 (1953). The Court held in the latter case:

“A federal judge on a habeas corpus application is required to ‘summarily hear and determine the facts, and dispose of the matter as law and justice require,’ 28 U. S. C. § 2243. This has long been the law. R. S. § 761, old 28 U. S. C. § 461.” Ibid, (emphasis added).

Ill

Our inquiry is thus narrowed to the question whether the Federal Magistrates Act changed the requirement of § 2243 that federal judges personally conduct habeas corpus evidentiary hearings. Certainly nothing in the text or legislative history of the Magistrates Act suggests that Congress meant to change that requirement. Rather, both text and legislative history plainly reveal a congressional determination to retain the requirement. For, although the Act gives district judges broad authority to assign a wide range of duties to magistrates, Congress carefully circumscribed the permissible scope of assignment to only “such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U. S. C. § 636 (b) (emphasis added). And in defining assignable duties, Congress decreed that the duty of holding evidentiary hearings was not assignable. This clearly emerges from the legislative history of subsection (3) of § 636 (b), which provides:

“(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” (Emphasis added.)

That legislative history reveals that the Judicial Conference of the United States objected to successive phrasings of subsection (b) (3) until it was phrased to make clear that the authority given district courts to assign duties to magistrates did not include authority to hold evi-dentiary hearings on applications for posttrial relief. The original draft of the subsection had proposed that magistrates’ duties include

“(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses.”

But because that language was susceptible of the interpretation that magistrates might conduct evidentiary hearings, the Judicial Conference of the United States objected to it. Accordingly, the subsection was rewritten to provide for

“(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case ...

The Committee on the Administration of the Criminal Law of the Judicial Conference objected that the revision did not “make it clear that it is the judge’s responsibility to make the ultimate decisions and to hold hearings on such applications, rather than that of the magistrate.” The Committee therefore recommended the addition of the phrase “as to whether there should be a hearing” immediately following the word “case.” The proposed addition was made, and subsection (b) (3) in its present form was enacted. Thus, although § 636 (b) provides that “additional duties authorized by rule may include, but are not restricted to,” duties defined in subsection (b) (3), the legislative history of the subsection compels the conclusion that Congress made a deliberate choice to preclude district courts from assigning magistrates the duty to hold evidentiary hearings.

We conclude that, since § 2243 requires that the District Judge personally hold evidentiary hearings in federal habeas corpus cases, Local Rule 16, insofar as it authorizes the full-time magistrate to hold such hearings, is invalid because it is “inconsistent with the . . . laws of the United States” under §636 (b). We conclude further that the Rule is to that extent invalid because, as we construe § 636 (b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings. Review by magistrates of applications for post-trial relief is thus limited to review for the purpose of proposing, not holding, eviden-tiary hearings. In connection with the preliminary review whether or not to propose that the district judge hold an evidentiary hearing, we agree that magistrates may receive the state court record and all affidavits, stipulations, and other documents submitted by the parties. Magistrates are prohibited only from conducting the actual evidentiary hearings.

The invalidity of Local Rule 16 is not cured by its provision that the “District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration.” Holiday reasoned that the command of § 761, now § 2243, was designed by Congress in recognition that “[o]ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony.” 313 U. S., at 352. “To experienced lawyers it is commonplace that the outcome of a lawsuit — and hence the vindication of legal rights — depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied.” Speiser v. Randall, 357 U. S. 513, 520 (1958). Congress, Holiday held, “[p]lainly . . . intended that the prisoner might invoke . . . appraisal by the judge himself.” In that circumstance, we “cannot say that an appraisal of the truth of the prisoner’s oral testimony” based on listening to a recording of it, “is, in the light of the purpose and object of the proceeding, the equivalent of the judge’s own exercise of the function of the trier of the facts.” 313 U. S., at 352.

Affirmed.

Mr. Chief Justice Burger,

with whom Mr. Justice White joins,

dissenting.

The Court today reads two separate statutes and our prior cases to reach a result contrary to the purposes underlying the enactment in 1968 of the Federal Magistrates Act, 28 U. S. C. § 631 et seq., and to the conclusion of every other Court of Appeals which has had occasion to consider the matter.

The Federal Magistrates Act was both “designed to create an upgraded lower tier judicial office/' S. Rep. No. 371, 90th Cong., 1st Sess., 11 (1967), and “intended ... to cull from the ever-growing workload of the U. S. district courts matters that are more desirably performed by a lower tier of judicial officers.” H. R. Rep. No. 1629, 90th Cong., 2d Sess., 12 (1968). The Court’s holding that federal magistrates may not conduct evidentiary hearings in federal habeas corpus cases is both inconsistent with the new status of magistrates and deputy magistrates, and serves to defeat the objective of the Act, described by Senator Tydings, its principal sponsor, see n. 2, supra, “to provide district judges with more time to devote to the actual trial of cases and the writing of opinions.” Hearings 3.

I

In its two-stage analysis, the Court finds first that under the terms of the Act it would be “inconsistent with the . . . laws of the United States,” 28 U. S. C. § 636 (b), to permit magistrates to conduct evidentiary hearings in habeas corpus cases. This is so, it is said, because a procedural provision of the Habeas Corpus Act, Rev. Stat. § 761, was construed 33 years ago, long before the enactment of the Magistrates Act, to confine that function to judges alone. Holiday v. Johnston, 313 U. S. 342 (1941). The 1948 revision and recodification of the Judicial Code, which incorporated Rev. Stat. § 761 into 28 U. S. C. § 2243, is held to have carried forward this limitation despite a critical language change. United States v. Hayman, 342 U. S. 205 (1952); Brown v. Allen, 344 U. S. 443 (1953). Neither the new statute, its drafting history, nor these latter cases, support the Court’s conclusion.

Section 2243 did, as the Court notes, import into its terms Rev. Stat. § 761, both of which provisions set forth in part what authority shall hear and determine the facts involved in an application for a writ of habeas corpus. And § 2243 changed the language of Rev. Stat. § 761, which originally read that the authority was to be the “court, or justice, or judge,” now to read simply the “court.” But the Court fails to note that § 2243 incorporated a second provision from the Habeas Corpus Act, Rev. Stat. § 755, which in part set forth what authority shall issue the writ of habeas corpus for which application was made. The authority to issue the writ set forth in Rev. Stat. § 755 was identical to that set forth in Rev. Stat. §761 to hear and determine the facts: the “court, or justice, or judge.” Unlike the language of Rev. Stat. § 761, however, the quoted language of Rev. Stat. § 755 was incorporated into § 2243 substantially unchanged; under the present statute, it is the “court, justice or judge” who shall issue the writ.

Congress sought to make certain that only a “court, justice or judge” could issue the writ; but by changing the authority to hear the facts from a “court, or justice, or judge” to, simply, a “court,” Congress must have intended to broaden the authority of the court, at least to the extent of permitting delegation to a magistrate to perform the preliminary hearing function, subject always to the approval of a district judge. To read the language change in any other way would impute to Congress an intent to alter statutory language, the meaning of which had already been finally determined by this Court, Holiday v. Johnston, supra, without the knowledge that the alteration would raise interpretive difficulties. Moreover, to change the language of Rev. Stat. § 761, but not to change that of Rev. Stat. § 755, cannot be said, as the Court does, ante, at 469 n. 9, to be a “[m]ere change of phraseology,” for such changes were undertaken only for purposes of uniformity. If, as Charles J. Zinn, counsel to the Law Revision Committee which revised the Judicial Code, testified, “we have changed the language to get a uniform style,” then within the same statutory provision, surely Congress would have made only “courts” able to issue writs, as well as hear the facts of the claim.

Nor do the cases cited by the Court, ante, at 469, support its interpretation of § 2243. Brown v. Allen, supra, is plainly inapposite. The segment of Brown quoted by the Court is relevant to Brown’s discussion of whether a petitioner under 28 U. S. C. § 2254 had a right to a plenary hearing although an earlier petition of his which presented substantially the same federal issues was refused in the state court. When the Court quotes from Brown: “This has long been the law,” ante, at 469, it is referring to what the Brown Court called the “general rule” approved in Salinger v. Loisel, 265 U. S. 224, 231 (1924). Brown, 344 TJ. S., at 463. Salinger in turn makes it clear that the “general rule” which has “long been the law” has nothing whatever to do with who may hear and determine the facts on an application for a writ of habeas corpus. Rather, it pertains only to that portion of § 2243 which Brown itself quoted, 344 U. S., at 462, and which Salinger also quoted, 265 U. S., at 231, that is, “to dispose of [the matter or party] as law and justice [may] require.” In Salinger, this rule meant each application for a writ of habeas corpus could be disposed of in the exercise of judicial discretion, which could in part give controlling weight to “a prior refusal [by a federal court] to discharge on a like application.” Ibid. In Brown, that rule was extended under certain circumstances to a prior state court refusal to issue the writ, in support of the Court’s conclusion there that a § 2254 petitioner had no right to a plenary hearing on his application for the writ. The rule the Court relies on today is thus one of discretion to hold an evidentiary hearing “as law and justice require,” which has no bearing on what official shall conduct the hearing once a decision is made to hold one. Brown is thus no authority for the proposition that the same limitation Holiday placed on Rev. Stat. § 761 (“court, or justice, or judge”) applies to § 2243 (“court”) enacted after Holiday.

The Court also relies upon United States v. Hayman, supra, to support its interpretation of § 2243. The issue in Hayman had nothing to do with who shall hear and determine facts upon an application for a writ of habeas corpus. Rather, the Court there was concerned solely with the question whether a district court may, upon an evidentiary hearing, decide factual issues presented by a motion under 28 U. S. C. § 2255, where the movant was not notified and was not present. In the context of discussing an earlier case which had held that a district court must decide material issues of fact by taking evidence, not by ex parte affidavits, Hay man dropped a footnote stating simply “[n]or can the factual issues be heard before a commissioner,” citing Holiday, supra. 342 U. S., at 213 n. 16. Not only was this footnote completely irrelevant to the issue in Hay man, its citation to Holiday for support, without further discussion, makes manifest that the Court did not consider the effect of the subsequent language change in § 2243 on the statute (Rev. Stat. § 761) which Holiday construed. The fulfillment of the purposes of the Federal Magistrates Act should not hang on such a slim reed.

II

Even assuming that § 2243 was intended to carry forward the limitation of Holiday’s interpretation of its predecessor, by enacting the Magistrates Act, and particularly § 636 (b) thereof, Congress made clear its intent to eliminate that restriction. Thus, while Hayman may speak in terms of a “commissioner,” Congress changed not only the title of that office, but also the qualifications for and the functions of the office.

Section 636 (b) permits federal magistrates to “be assigned . . . such additional duties as are not inconsistent with the Constitution and laws of the United States.” The section then sets forth in three subdivisions certain duties which district courts may authorize by rule, but the duties “are not restricted to” those set forth. The third illustrative subdivision provides that district courts may authorize the additional duty of

“preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” 28 U. S. C. § 636 (b) (3).

Subdivision (3), suggesting additional duties that maybe assigned to a magistrate in connection with federal habeas corpus cases, does not by its terms permit magistrates to conduct evidentiary hearings, but that subdivision is merely illustrative, not exclusive.

“The mention of these three categories is intended to illustrate the general character of duties assignable to magistrates under the act, rather than to constitute an exclusive specification of duties so assignable.” S. Rep. No. 371, 90th Cong., 1st Sess., 25 (1967).

The House Report virtually tracks the language of the Senate Report. H. R. Rep. No. 1629, 90th Cong., 2d Sess., 19 (1968). Thus, there being no constitutional barrier to permitting magistrates to conduct evidentiary hearings, nor any other legal barrier, see Part I, supra, § 636 (b) enables district courts, as did the District Court here, to establish rules which so permit.

Assuming, arguendo, that § 2243 does constitute a possible legal barrier to such rules, the legislative history of the Act reveals Congress to have intended the elimination of that barrier. The Court determines, in the second stage of its analysis, ante, at 469-473, that Congress intended the opposite result, but in this matter the Court’s perception is less than discriminating. The linchpin of the Court’s argument is the drafting evolution of the terms of subdivision (3), quoted above. In the change of language from preliminary “consideration” to preliminary “review,” and in the addition of “as to whether there should be a hearing,” the Court finds an intent to bar magistrates from conducting a hearing. But the language changes in the subdivision were made only due to a fear that magistrates would be thought to have been given final adjudicatory power, not to preclude them from conducting hearings when the district judges retained such power. Indeed, the latter was specifically intended. As the Senate Report stated, § 636 (b)

“contemplates assignments to magistrates under circumstances where the ultimate decision of the case is reserved to the judge . ..S. Rep. No. 371, 90th Cong., 1st Sess., 26 (1967).

The concern about enabling magistrates to make the ultimate decision found early expression in the Senate hearings on the bill in a colloquy between Senator Tydings and then Assistant Attorney General Vinson. Mr. Vinson ultimately revealed his real concern in a letter to the Subcommittee that subdivision (3) as originally drafted would give the power of ultimate decision to the magistrate: “[I]f preliminary consideration is intended to involve adjudication, it should be handled by an Article 3 Judge.” Hearings 130. That the Senate viewed Mr. Vinson’s objections in this light is made clear by Senator Tydings’ testimony in the hearings before a subcommittee of the House Judiciary Committee. Hearings on S. 945 et al. before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 72 (1968).

In response to this objection, Senator Tydings stated to Mr. Vinson at the Senate hearings:

“We wouldn’t intend for the final decision to be made by the magistrate. But we would intend that . . . the magistrate [be able to] hold a preliminary [habeas] hearing .... We certainly intend that.” Hearings 112. (Emphasis added.)

Numerous other witnesses at the Senate hearings urged that the magistrates be permitted to hold hearings. See, e. g., id., at 52 (Chief Judge Northrop, supra, n. 3); id., at 94 (Chief Judge Walter E. Hoffman, of the Eastern District of Virginia).

As the Court points out, ante, at 470-471, the Judicial Conference objected to the original draft bill (S. 3475), but it did not originally object to subdivision (3), as the Court states. Instead, the Conference objected to § 636 (b) altogether, fearing it so broad as to be subject to constitutional attack. Although not specified, it seems clear that by speaking in terms of “delegation” the Conference initially shared Mr. Vinson’s concern about delegating the ultimate decisionmaking power of Art. Ill judges. Hearings 241n. The Judicial Conference therefore recommended both a modified version of § 636 (b), and the complete elimination of all three subdivisions. Ibid. When the revised draft bill (S. 945), which ultimately was enacted, was introduced, it did not follow the Judicial Conference recommendation, but continued to include the three subdivisions. As to subdivision (3), the Judicial Conference recommended the addition of the phrase “as to whether there should be a hearing,” see n. 7, supra, but again stressed that its concern was, as with S. 3475, over the “delegation to magistrates.” Hearings 245.

The tension established in this evolution is clear. On the one hand, Congress sought to enable district courts to authorize magistrates to conduct evidentiary hearings. On the other hand, there was apprehension that the power of authorization granted to district courts might lead to a rule permitting magistrates to exercise ultimate deci-sionmaking power reserved exclusively to Art. Ill judges. To avoid the latter but accomplish the former, Congress persisted in retaining the broad language of § 636 (b), and in retaining subdivision (3). Not only, as set forth earlier, does the subdivision not limit the subsection, it was drafted in language to insure that it could not be read to preclude authorizing magistrates to conduct hearings in federal habeas corpus cases.

Plainly, Congress could have used language that expressly precluded the latter. That this was not urged upon Congress by anyone, including the Judicial Conference, and that Congress did not include such language, alone suggests its intention to vest in district courts the power to authorize magistrates to hold hearings. Conversely, Congress would have taken certain risks had it expressly permitted magistrates to hold hearings, as revealed by the following colloquy between Chief Judge Hoffman and Senator Tydings at the Senate hearings:

"Judge Hoffman. ... And I have suggested in my statement . . . that the Federal magistrate could be assigned the task as a master to conduct plenary hearings. After all, [habeas corpus proceedings] are civil proceedings . . . not criminal proceedings.
“Senator Tydings. [Sjince we . . . don’t have [in § 636 (b)] ‘Including hearings’ or ‘Including plenary hearings,’ or ‘including the conducting of plenary hearings,’ it is not what we should have?
“Judge Hoffman. I am fearful that someone will say that this is merely an effort on the part of the judge to delegate his judicial function.
“Senator Tydings. I think that is a good point, Judge Hoffman.” Hearings 93-94.

In light of the need for Congress to avoid language suggesting an unconstitutional delegation of a judicial function to a magistrate, the ambiguous provision of § 636 (b) — unlimited by the provisions of subdivision (3) — should be interpreted to permit magistrates to conduct evidentiary hearings in federal habeas corpus cases, § 2243 notwithstanding, because (1) to the extent the subject was expressly discussed in the legislative history, such permission was intended, and (2) such an interpretation would serve the two principal objectives of the Act. See nn. 2 and 3, supra.

Ill

The final limitation of the Act, that additional duties assigned to magistrates must not be “inconsistent with the Constitution,” needs little discussion here. The Court does not suggest that the conduct of an evidentiary hearing, where the district judge retains the power to make the final decision on an application for a writ of habeas corpus, would be unconstitutional either under Art. Ill or as a matter of due process of law. Where this situation obtains, the magistrate’s conduct of the hearing would be clearly constitutional.

Not only would his report and recommendation to the district judge be subject to amendment or outright rejection, the district judge could, at the behest of the habeas corpus petitioner or on his own motion, conduct his own evidentiary hearing to judge for himself, for example, the credibility of witnesses if he deems their testimony essential to disposition of the application. To the extent a problem of constitutional magnitude may be foreseen in the particulars of the rules established by a district court, those rules can be construed to comport with constitutional requirements. In any event, now that the Court has construed the Magistrates Act contrary to a clear legislative intent, it is for the Congress to act to restate its intentions if its declared objectives are to be carried out.

       Commissioners had been empowered by the Federal Rules of Criminal Procedure to give oaths (Rule 3); issue arrest warrants (Rule 4); conduct preliminary examinations of arrestees (Rule 5); issue subpoenas (Rule 17); issue warrants of removal to another district (Rule 40); and release defendants on bail (Rule 46). In addition, commissioners were authorized to try persons accused of petty offenses (defined by 18 U. S. C. § 1 (3) as crimes for which the penalty does not exceed imprisonment for six months or a fine of not more than $500 or both) committed within the confines of federal enclaves, 62 Stat. 830. In civil cases commissioners were limited to administering oaths and taking bail, acknowledgments, affidavits, and depositions. 62 Stat. 917.

       Unlike the more restricted criminal trial jurisdiction of the former commissioners, see n. 1, supra, the authority of magistrates extends to minor offenses committed anywhere within the judicial district and includes crimes punishable by imprisonment not exceeding one year, or a fine of not more than $1,000, or both.

       The Federal Magistrates Act, 28 U. S. C. § 636 (b), provides:
      “(b) Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
      “Í1) service as a special master in an appropriate civil action pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
      “(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
      “(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.”

       We thus agree with the Court of Appeals that this case does not require resolution of the question whether Congress constitutionally may enact legislation vesting authority, pursuant to rule or order of court, in magistrates to hold evidentiary hearings on habeas corpus petitions. We indicate no views as to the validity of investing such authority in a magistrate or other officer “outside the pale of Article III of the Constitution.” 483 F. 2d 1131, 1133 n. 1 (CA6 1973).

       The relevant portion of the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, provides that the “court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty.”

       62 Stat. 869.

       S. Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948).

       H. R. Rep. No. 308, 80th Cong., 1st Sess., A178 (1947).

       See also J. Moore, Commentary on the U. S. Judicial Code 436 n. 78 (1949); Payne v. Wingo, 442 F. 2d 1192, 1194 (CA6 1971).
      Had any substantive change in the meaning of Rev. Stat. § 761, as construed in Holiday v. Johnston, been intended, the Revisers’ Notes would have called attention to the change. William W. Barron, the Chief Reviser of the Code, explained: “[N]o changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed. Mere changes of phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised.” Barron, The Judicial Code 1948 Revision, 8 F. R. D. 439, 445-446. See also S. Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948); H. R. Rep. No. 308, 80th Cong., 1st Sess., 7 (1947).

       A full discussion of the legislative history of the Federal Magistrates Act will be found in TPO, Inc. v. McMillen, 460 F. 2d 348 (CA7 1972).

       Where Congress gave magistrates authority to conduct hearings, the authority was express and circumscribed with procedural safeguards. Thus 28 U. S. C. § 636 (a) (3) gives magistrates jurisdiction to conduct trials for minor offenses, but 18 U. S. C. § 3401 provides that any person charged with a minor offense may elect to be tried by a district judge. Title 28 U. S. C. § 636 (b) (1) authorizes magistrates to serve as special masters — which frequently involves the conduct of hearings — but makes that service subject to the Federal Rules of Civil Procedure, which include the restrictions of Rule 53 (b) that “reference to a master shall be the exception and not the rule.” See Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038,1189 n. 229 (1970).

       S. 3475, Federal Magistrates Act of 1966, 89th Cong., 2d Sess. (1966).

       See the Report of the Committee on the Administration of the Criminal Law, adopted by the Judicial Conference in September 1966, reprinted in the Hearings on S. 3475 and S. 945 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), pp. 241j, 241n.

       See the Report of the Committee on the Administration of the Criminal Law, adopted by the Judicial Conference in March 1967, reprinted in the Hearings on S. 3475 and S. 945 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), pp. 244, 245.

        Ibid.

       S. 945, Federal Magistrates Act of 1967, 90th Cong., 1st Sess. (1967).

       See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321, 364r-365 (1973); Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1188-1189 (1970).

       “A qualified, experienced magistrate will, it is hoped, acquire an expertise in examining these [post-conviction review] applications and summarizing their important contents for the district judge, thereby facilitating his decisions. Law clerks are presently charged with this responsibility by many judges, but judges have noted that the normal 1-year clerkship does not afford law clerks the time or experience necessary to attain real efficiency in handling such applications.” S. Rep. No. 371, 90th Cong., 1st Sess., 26 (1967).

       To the extent that O’Shea v. United, States, 491 F. 2d 774 (CA1 1974), and Noorlander v. Ciccone, 489 F. 2d 642 (CA8 1973), suggest that magistrates may also accept oral testimony, provided that each party has the right to a de novo hearing before the district judge, we disagree. Such a procedure is precluded by both § 2243 and §636 (b).

       Since under § 636 (b) district judges may call upon magistrates to relieve them of most other details of the processing of habeas corpus applications, it does not appear that judges will be significantly overburdened by the requirement that they personally conduct evidentiary hearings. Indeed, data from the Administrative Office of the United States Courts indicate that very few habeas corpus cases ever reach the evidentiary hearing stage. In 1973, of the 10,800 prisoner petitions filed for habeas corpus or as 28 U. S. C. § 2255 motions to vacate sentence, less than 5%, or approximately 530, necessitated evidentiary hearings. See Report of the Director of the Administrative Office of United States Courts, Table C-2, p. 325, Table C-8, p. 383 (1973). When hearings were required, 88% were completed in one day or less. Id., at 383. Thus, among the 400 District Judges, the burden of evidentiary hearings averages less than 1.5 hearing days per judge per year. To the extent that the 80 active Senior District Judges also participate in habeas corpus cases, the hearing burden upon each district judge is further reduced.

       Two Circuits have ruled that federal magistrates may conduct evidentiary hearings in federal habeas corpus cases, O’Shea v. United

        States, 491 F. 2d 774, 778 (CA1 1974); Noorlander v. Ciccone, 489 F. 2d 642, 648 (CA8 1973); cf. Campbell v. U. S. District Court, 501 F. 2d 196, 205 (CA9 1974), while two Circuits have assumed magistrates have that power, United States ex rel. Gonzalez v. Zelker, 477 F. 2d 797, 798 (CA2 1973); Parnell v. Wainwright, 464 F. 2d 735, 736 (CA5 1972).

       The Court makes clear, ante, at 473 n. 18, that it sees the function of the magistrate in dealing with habeas corpus petitions as being no more than that previously performed by law clerks. As Chief Judge Theodore Levin, of the Eastern District of Michigan, testified before the Senate Judiciary Committee’s Subcommittee on Improvements in Judicial Machinery, which under the chairmanship of Senator Joseph D. Tydings began the investigative hearings in 1965 which led to the enactment of the Act three years later, law clerks are not overworked, and are better able to perform such tasks. “In any event, this is a somewhat tedious job . . . and is not a function likely to entice a seasoned and competent lawyer to accept a magistrate’s job.” Hearings on S. 3475 and S. 945, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967),p. 61 (hereinafter Hearings). The Act specifically sought to make “the position [of magistrate] more attractive to highly qualified individuals.” S. Rep. No. 371, 90th Cong., 1st Sess., 11 (1967). The Department of Justice agreed that such a limited function would be inconsistent with the Act’s purpose, Hearings 130, and Chief Judge Robert C. Belloni and Dean Robert B. Yegge have noted that the magistrates “should not be simply high-paid law clerks.” Reports of the Conference for District Court Judges, 59 F. R. D. 203, 221 (1973). To limit a magistrate to a law clerk’s function surely undercuts what Senator Tydings stated to be “[t]he first goal of the Magistrates Act ... to [give the magistrate] qualifications and a stature higher than those of the present U. S. commissioner.” Hearings 26.

       No one would dispute the heavy burden on district courts represented by the applications for habeas corpus writs they receive, a large volume of which has been long recognized as “repetitious and patently frivolous.” United States v. Hayman, 342 U. S. 205, 212 (1952) (footnote omitted). The Court would minimize the burden of these applications at the evidentiary hearing stage, ante, at 473 n. 20, but the beguiling simplicity of its statistical analysis obscures reality and is antagonistic to the interests of habeas petitioners. First, to average hearing days per judge per year evenly across the country fails to recognize the uneven number of habeas corpus applications received by the various district courts. In his testimony at the Senate hearings on the bill Chief Judge Edward S. Northrop, of the District of Maryland, reflected the unevenness experienced by his court, which at one time handled more “State prisoner habeas corpus petitions . . . than any other district in the country.” Hearings 52. Clearly Chief Judge Northrop’s burden would have exceeded “1.5 hearing days . . . per year.” Second, the habeas corpus applications which ultimately reach the hearing stage do not represent all those which might warrant a hearing. Senator Tydings stated:
      “We say that the magistrate should be able to [hold] plenary, discovery hearings. Now, what happens ... as a practical matter, you get no hearings. The law clerk reviews the papers ... so we are giving the individual [petitioner] actually an opportunity ... for more consideration than he gets now.” Id., at 113.
      Finally, even if no more applications would warrant an evidentiary hearing, given the other burdens on district judges those applications which would warrant hearings would receive more prompt attention if magistrates were to hold them. The virtues of speedy justice need not be elaborated here.

       As noted in Part II, infra, it is not urged by anyone that the magistrate may finally decide facts after conducting an evidentiary hearing. That ultimate decision is, without question, one reserved to the district judge alone.

       Hearings on H. R. 1600 and H. R. 2055 before Subcommittee No. 1 of the House Committee on the Judiciary, 80th Cong., 1st Sess., 40 (1947).

       No such barrier is suggested by the Court today, and properly framed, district court rules which so permit would not contravene the constitutional rights of federal habeas corpus petitioners. See Part III, injra.

       The two words were in fact used interchangeably in the legislative history. When the draft bill (S. 3475) used the word “consideration,” the Subcommittee Staff Memorandum in support of the bill used the word “review.” Hearings 34. When the draft bill was changed to use the word “review,” the Senate Report accompanying the new bill (S. 945) used the word “consideration.” S. Rep. No. 371, 90th Cong., 1st Sess., 8 (1967).

       Despite the addition of this language, the House Report, in setting forth the enumerated examples of § 636 (b), stated of subdivision (3) only that “[m]agistrates may also be assigned the function of reviewing and reporting to district judges upon applications for postconviction relief.” H. R. Rep. No. 1629, 90th Cong., 2d Sess., 19 (1968). No limitation on the nature of the review or report was indicated. The language of the Senate Report also made no reference to decisions whether there should be hearings. S. Rep. No. 371, supra, at 26.

       The Court twice makes reference, ante, at 471 n. 11, and 472 n. 17, to Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1188-1189,and n.229 (1970),in support of its position. Both references are mistakenly addressed to final decisionmaking power, not the power to conduct hearings where the district judge makes the ultimate decision. The Note itself concedes that “[i]t is possible to argue [under § 636 (b)] that a plan to have magistrates actually hear eases is valid under the Act.” Id., at 1189 n. 229. It then argues the other way in reference to matters as to which magistrates have final power of decision. See 28 U. S. C. §636 (a)(3). That is the only power of magistrates circumscribed by the procedures to which the Court refers, ante, at 470-471, n. 11. To the extent the Court goes beyond the Note and argues that magis-: trates’ service as special masters, 28 U. S. C. § 636 (b) (1), is limited by Fed. Rule Civ. Proc. 53 (b), the early strictures upon employing special masters were developed before the existence of the judicial office of magistrate and arguably should not be applied to that new office. See generally Comment, An Adjudicative Role for Federal Magistrates in Civil Cases, 40 U. Chi. L. Rev. 584 (1973).

       Even counsel for respondent agrees (contrary to the Court’s conclusion, ante, at 470) that subdivision (3) “could have been more clearly expressed.” Tr. of Oral Arg. 20.

       The commentators have generally agreed with this conclusion. Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321, 365 (1973); Peterson, The Federal Magistrate’s Act: A New Dimension in the Implementation of Justice, 56 Iowa L. Rev. 62, 98 (1970); Doyle (District Judge and Chairman of the Judicial Conference Committee charged with implementing the Act), Implementing the Federal Magistrates Act, 39 J. B. A. Kan. 25, 69 (1970); Note, Proposed Reformation of Federal Habeas Corpus Procedure: Use of Federal Magistrates, 54 Iowa L. Rev. 1147 (1969). So, too, would the Judicial Conference appear to be in agreement. Proposed Amendments to the Proposed Rules Governing Habeas Corpus Proceedings for the United States District Courts, Committee on Rules of Practice and Procedure, Rule 11 (Preliminary Draft, Jan. 1973). Congress has given the magistrates power to conduct trials of a limited nature, 28 U. S. C. § 636 (a)(3), which grant of power, carefully limited, appears not to contravene any constitutional prohibition. Cf. Palmore v. United States, 411 U. S. 389 (1973). A fortiori granting magistrates the power to conduct hearings where the district judge retains ultimate decisionmaking authority comports with constitutional requirements. Cf. Campbell v. U. S. District Court, 501 F. 2d 196 (CA9 1974) (hearings on motion to suppress); Harlem River Consumers Coop., Inc. v. Associated Grocers of Harlem, Inc., 54 F. R. D. 551 (SDNY 1972) (hearings on discovery motion).


source: Caselaw Access Project

author: Me. Justice White Mr. Justice Marshall,

license: Public Domain

text:
    TAYLOR v. HAYES, JUDGE
    No. 73-473.
    Argued March 18, 1974
    Decided June 26, 1974

      Robert Allen Sedler argued the cause for petitioner. With him on the briefs were Doris Peterson and Morton Stavis.

      Henry A. Triplett argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed by Burke Marshall, Leon Friedman, and Norman Dorsen for the Association of the Bar of the City of New York; by Frank E. Haddad, Jr., Joe G. Leib-son, and Ed P. Jackson for the Louisville Bar Assn.; by James Larson, Arthur Kinoy, and Victor Rabinowitz for the National Lawyers Guild; and by Melvin L. Wulf for the American Civil Liberties Union.

   Me. Justice White

delivered the opinion of the Court.

The question in this case concerns the validity of a criminal contempt judgment entered against petitioner by reason of certain events occurring in the course of a criminal trial in the courts of the Commonwealth of Kentucky. Petitioner was retained counsel for Narvel Tinsley, a Negro, who along with his brother Michael was charged with the murders of two police officers. According to the Kentucky Court of Appeals, the “murders created some considerable sensation in Louisville . . . and . . . newspaper coverage was overly abundant.” 494 S. W. 2d 737, 739 (1973). Trial before respondent trial judge began on October 18, 1971, and was completed on October 29.

On nine different occasions during this turbulent trial, respondent, out of the hearing of the jury and most often in chambers, informed petitioner that he was in contempt of court. The first charge was immediately reduced to a warning and no sentence was imposed at the time of charge- in that or any other instance. Petitioner was permitted to respond to most, but not all, of the charges.

At the conclusion of the trial on October 29 and after a guilty verdict had been returned, respondent, in the presence of the jury, made a statement concerning petitioner’s trial conduct. Refusing petitioner’s request to respond and declaring that “I have you” on nine counts, respondent proceeded to impose a jail term on each count totaling almost four and one-half years: 30 days on the first count, 60 days on the second, 90 days on the third, six months on counts four, five, six, and seven, and one year each on counts eight and nine, “all to run consecutive.” A few days later, petitioner was also barred from practicing law by respondent in his division of the Criminal Branch of the Jefferson Circuit Court.

While petitioner’s appeal was pending, on March 2, 1972, respondent entered a corrected judgment containing a “certificate” which described the nine charges of contempt but eliminated the first charge as having been reduced to a warning and reduced the sentence on each of the last two counts to six months in jail. The corrected judgment was silent as to whether the sentences were to run concurrently or consecutively.

The Kentucky Court of Appeals affirmed, holding that petitioner was guilty of each and every contempt charged. In its view, petitioner’s actions “were deliberate, delaying, or planned disruptive tactics which did in fact create such an atmosphere in the court that he, if permitted to continue, would have appeared to be the star performer in the center ring of a three-ring circus.” 494 S. W. 2d, at 740. Petitioner had committed “innumerable acts . . . which clearly reflected his contempt for the court as well as the judicial system of this Commonwealth . . .” and had been “overbearing, contemptuous, and obnoxiously persistent in his questions and objections . . . .” Id., at 741. The Court of Appeals also concluded that petitioner had not launched any “personal attack” on the trial judge and that the judge had neither conducted himself as an “ 'activist seeking combat’ ” nor had become so personally embroiled that he was disqualified to sit in judgment on the charges of contempt, although his remarks prior to entering judgment of contempt at the conclusion of the trial were “inappropriate.” Id., at 744^745.

The Court of Appeals further ruled that because the amended judgment did not “direct that the sentences, as amended, be served consecutively . . . they must be served concurrently.” Id., at 746. Thus, “[t]he penalty actually imposed on Daniel Taylor [was] six months in jail,” and his conviction and sentence without a jury trial were deemed constitutionally permissible. Id., at 747. The Kentucky Court of Appeals ruled, however, that it had exclusive authority to discipline or disbar attorneys and that, in any event, the rule in Kentucky since 1917 had been that suspension from practice was not a permissible punishment for criminal contempt. The order prohibiting petitioner from practicing in the Jefferson Circuit Court, Criminal Branch, Second Division, was therefore reversed. We granted certiorari limited to specified issues, 414 U. S. 1063 (1973).

I

Petitioner contends that any charge of contempt of court, without exception, must be tried to a jury. Quite to the contrary, however, our cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Cheff v. Schnackenberg, 384 U. S. 373 (1966); Bloom v. Illinois, 391 U. S. 194 (1968); Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216 (1968); Frank v. United States, 395 U. S. 147 (1969) ; Baldwin v. New York, 399 U. S. 66 (1970). Hence, although petitioner was ultimately found guilty and sentenced separately on eight counts of contempt, the sentences were to run concurrently and were, as the Kentucky Court of Appeals held, equivalent to a single sentence of six months. Cf. Codispoti v. Pennsylvania, post, p. 506. The original sentences imposed on the separate counts were to run consecutively and totaled almost four and one-half years, with two individual counts each carrying a year’s sentence. But the trial court itself entered an amended judgment which was understood by the Kentucky Court of Appeals to impose no more than a six-month sentence. The eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required.

It is argued that a State should not be permitted, after conviction, to reduce the sentence to less than six months and thereby obviate a jury trial. The thrust of our decisions, however, is to the contrary: in the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months. We discern no material difference between this choice and permitting the State, after conviction, to reduce a sentence to six months or less rather than to retry the contempt with a jury. Cf. Cheff v. Schnackenberg, supra, at 380. In either case, the State itself has determined that the contempt is not so serious as to warrant more than a six-month sentence. We remain firmly committed to the proposition that “criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved.” Bloom v. Illinois, supra, at 211; cf. Argersinger v. Hamlin, 407 U. S. 25, 30 (1972).

II

We are more persuaded by petitioner’s contention that he was entitled to more of a hearing and notice than he received prior to final conviction and sentence. In each instance during the trial when respondent considered petitioner to be in contempt, petitioner was informed of that fact and, in most instances, had opportunity to respond to the charge at that time. It is quite true, as the Kentucky Court of Appeals held, that “[t]he contempt citations and the sentences coming at the end of the trial were not and could not have been a surprise to Taylor, because upon each occasion and immediately following the charged act of contempt the court informed Taylor that he was at that time in contempt of court.” 494 S. W. 2d, at 741-742. But no sentence was imposed during the trial, and it does not appear to us that any final adjudication of contempt was entered until after the verdict was returned. It was then that the court proceeded to describe and characterize petitioner’s various acts during trial as contemptuous, to find him guilty of nine acts of contempt, and to sentence him immediately for each of those acts.

It is also plain from the record that when petitioner sought to respond to what the Kentucky Court of Appeals referred to as the trial court’s “declaration of a charge against Taylor based upon the judge’s observations” during trial, respondent informed him that “[yjou’re not responding to me on anything” and even indicated that petitioner might be gagged if he insisted on defending himself. The trial court then proceeded without further formality to impose consecutive sentences totaling almost four and one-half years in the county jail and to bar petitioner forever from practicing before the court in which the case at issue had been tried.

This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge’s power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U. S. 289 (1888). The usual justification of necessity, see Offutt v. United States, 348 U. S. 11, 14 (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial. Our decisions establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. Sacher v. United States, 343 U. S. 1 (1952); cf. Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). But Sacher noted that “[s]ummary punishment always, and rightly, is regarded with disfavor ... .” 343 U. S., at 8. “[W]e have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are 'basic in our system of jurisprudence.’ ” Groppi v. Leslie, 404 U. S. 496, 502 (1972), quoting In re Oliver, 333 U. S. 257, 273 (1948). Even where summary punishment for contempt is imposed during trial, “the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.” Groppi v. Leslie, supra, at 504 (and cases cited therein).

On the other hand, where conviction and punishment are delayed, “it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business.” Ibid. As we noted in Groppi, the contem-nors in the Sacher case were “given an opportunity to speak” and the “trial judge would, no doubt[,] have modified his action had their statements proved persuasive.” Id., at 506, and n. 11. Groppi counsels that before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a full-scale trial is appropriate. Usually, the events have occurred before the judge’s own eyes, and a reporter’s transcript is available. But the contemnor might at least urge, for example, that the behavior at issue was not contempt but the acceptable conduct of an attorney representing his client; or, he might present matters in mitigation or otherwise attempt to make amends with the court. Cf. Groppi v. Leslie, supra, at 503, 506 n. 11.

These procedures are essential in view of the heightened potential for abuse posed by the contempt power. Bloom v. Illinois, 391 U. S., at 202; Sacher v. United States, 343 U. S., at 12. The provision of fundamental due process protections for contemnors accords with our historic notions of elementary fairness. While we have no desire “to imprison the discretion of judges within rigid mechanical rules,” Offutt v. United States, 348 U. S., at 15, we remain unpersuaded that “the additional time and expense possibly involved . . . will seriously handicap the effective functioning of the courts.” Bloom v. Illinois, supra, at 208-209. Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his “liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.” Morrissey v. Brewer, 408 U. S. 471, 482 (1972).

Because these minimum requirements of due process of law were not extended to petitioner in this case, the contempt judgment must be set aside.

III

We are also convinced that if petitioner is to be tried again, he should not be tried by respondent. We agree with the Kentucky Court of Appeals that petitioner’s conduct did not constitute the kind of personal attack on respondent that, regardless of his reaction or lack of it, he would be "[un]likely to maintain that calm detachment necessary for fair adjudication.” Mayberry v. Pennsylvania, 400 U. S., at 465.

But contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot “hold the balance nice, clear and true between the State and the accused . . . .” Tumey v. Ohio, 273 U. S. 510, 532 (1927). In making this ultimate judgment, the inquiry must be not only whether there was actual bias on respondent’s part, but also whether there was “such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.” Ungar v. Sarafite, 376 U. S. 575, 588 (1964). “Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,” but due process of law requires no less. In re Murchison, 349 U. S. 133, 136 (1955).

With these considerations in mind, we have examined the record in this case, and it appears to us that respondent did become embroiled in a running controversy with petitioner. Moreover, as the trial progressed, there was a mounting display of an unfavorable personal attitude toward petitioner, his ability, and his motives, sufficiently so that the contempt issue should have been finally adjudicated by another judge.

Early in the trial respondent cautioned petitioner against “putting on a show” and added that “if you give him an inch, he'll take a mile. I might as well sit on him now.” App. 31, 40. On another occasion when petitioner asserted that his purpose was to defend his case, respondent replied, “I’m not sure.” Id., at 61. When petitioner remarked that he had five months wrapped up in the case, respondent retorted that “[b]e-fore it's over, you might have a lot more than that.” Id., at 98. On the other hand, petitioner complained of respondent’s “overbearing contentiousness in regard to me, both by phrase and by its utterances,” and asserted that the court was prejudicing the trial of his case. Id., at 60. Respondent was likewise said to be “using [the] brute power of your office” in saying that petitioner was damaging his client. Id., at 61. On another occasion, respondent understood petitioner to be asserting that he, respondent, had rigged the jury. Id., at 85-86.

That respondent had reacted strongly to petitioner’s conduct throughout the 10-day trial clearly emerged in the statement which he made prior to sentencing petitioner and which the Court of Appeals characterized as “inappropriate.” There he said petitioner had put on “the worst display” he had seen in many years at the bar — “[a]s far as a lawyer is concerned, you’re not.” Id., at 28. Furthermore, respondent denied petitioner the opportunity to make any statement at that time, threatened to gag him and forthwith sentenced him to almost four and one-half years in jail, not to mention later disbarring him from further practice in his court. He also refused to grant him bail pending appeal. We assume for the purposes of this case that each of the charged acts was contemptuous; nevertheless, a sentence of this magnitude reflects the extent to which the respondent became personally involved. Cf. Offutt v. United States, 348 U. S., at 17.

From our own reading of the record, we have concluded that “marked personal feelings were present on both sides” and that the marks of “unseemly conduct [had] left personal stings,” Mayberry v. Pennsylvania, 400 U. S., at 464. A fellow judge should have been substituted for the purpose of finally disposing of the charges of contempt made by respondent against petitioner. Respondent relies on Ungar v. Sarafite, supra, but we were impressed there with the fact that the judge “did not purport to proceed summarily during or at the conclusion of the trial, but gave notice and afforded an opportunity for a hearing which was conducted dispassionately and with a decorum befitting a judicial proceeding.” 376 U. S., at 588.

Nothing we have said here should be construed to condone the type of conduct described in the opinion of the Kentucky Court of Appeals and found by that court to have been engaged in by petitioner. Behavior of this nature has no place in the courtroom which, in a free society, is a forum for the courteous and reasoned pursuit of truth and justice.

The judgment of the Kentucky Court of Appeals is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.

So ordered.

Mr. Justice Douglas joins Parts II and III of the Court’s opinion.

[For dissenting opinion of Mr. Justice Rehnquist, see post, p. 523.]

Mr. Justice Marshall,

dissenting in part.

I join Parts II and III of the opinion of the Court, but I cannot join the holding in Part I that petitioner was not entitled to a jury trial. Petitioner was summarily convicted of contempt and sentenced to almost four and one-half years in prison. In my view, this sentence marked the contempt charges against petitioner as “serious” rather than “petty” and called into play petitioner’s Sixth Amendment right to a jury trial.

The Court, however, relies on the fact that the trial judge subsequently realized his error and reduced the sentence to six months. The Court characterizes this as a determination by the State that “the contempt is not so serious as to warrant more than a six-month sentence.” Ante, at 496. In my view, the trial judge’s reduction of petitioner’s sentence was a transparent effort to circumvent this Court’s Sixth Amendment decisions and to save his summary conviction of petitioner without the necessity of airing the charges before an impartial jury. It is hardly coincidence that petitioner’s sentence was reduced to the maximum that our decisions would permit.

Today’s decision represents an extraordinarily rigid and wooden application of the six-month rule that the Court has fashioned to determine when the Sixth Amendment right is applicable. In permitting this obvious device to succeed, I think that the Court changes the nature of the six-month rule from a reasonable effort to distinguish between “serious” and “petty” contempts into an arbitrary barrier behind which judges who wish to protect their summary contempt convictions without exposing their charges to the harsh light of a jury may safely hide. The very fact that such a substantial contempt sentence was imposed, and then reduced to the six-month maximum, should be a warning to us that the fairness of the process which petitioner has received is suspect, and that the contempt charges involved here especially require the scrutiny of a jury trial. Statements in the plurality opinion in Cheff v. Schnackenberg, 384 U. S. 373, 380 (1966), to the contrary notwithstanding, I do not believe that petitioner could be deprived of his Sixth Amendment right to jury trial, once it attached through the imposition of a substantial sentence, by the subsequent action of the trial court or an appellate court in reducing the sentence.

       When for the sixth time petitioner was informed that he was in contempt, he sought to reply and was informed he could do so at the next recess. Nothing more appears in the record with respect to this episode. On the seventh occasion, petitioner undertook to respond but respondent left the chambers, and any further discussion of this charge was apparently ordered excluded from the record by respondent. Petitioner was denied the right to respond when he was informed of the eighth charge of contempt. As far as the record shows, there was neither a request to respond nor denial of response in connection with the ninth contempt charge.

       The following is the complete transcript of the proceedings on October 29, 1971, with respect to the contempt charges against petitioner:
      “The Court: Mr. Taylor, the Court has something to take up with you sir, at this time.
      “Mr. Taylor: Well, I’ll be right here, Judge.
      “The Court: I’ve for two weeks sit here and listen to you. Now, you’re going to listen to me. Stand right here, sir.
      “For two weeks I’ve seen you put on the worst display I’ve ever seen an attorney in my two years of this court and 15 years of practicing law. You’ve quoted that you couldn’t do it any other way. You know our court system is completely based upon, particularly criminal law, the Doctrine of Eeasonable Doubt. That’s exactly what it means, reason. It doesn’t mean that it’s based upon deceit; it doesn’t mean that it’s based upon trickery; it doesn’t mean it’s based upon planned confusion.
      “Sometimes I wonder really what your motive is, if you’re really interested in the justice of your client, or if you have some ulterior motive, if you’re interested in Dan Taylor or Narvel Tinsley.
      “It’s a shame that this court has to do something that the Bar Association of this State should have done a long time ago.
      “As far as a lawyer is concerned, you’re not. I want the jury to hear this; I want the law students of this community to hear this, that you’re not the rule, you’re the exception to the rule.-
      “Mr. Taylor: (Interrupting) Thank you.
      “The Court: I want them to understand that your actions should not be their actions because this is not the way that a court is conducted. This is not the way an officer of a court should conduct itself.
      “Mr. Taylor: I would respond to you, sir-
      “The Court: (Interrupting) You’re not responding to me on anything.
      “Mr. Taylor: (Interrupting) Oh yes, I will.
      “The Court: Yes, you’re not, either.
      “Mr. Taylor: Yes, I will.

        “The Court: The sentence is on Count One-
      “Mr. Taylor: (Interrupting) Unless you intend to gag me-
      “The Court: (Interposing) I’ll do that-
      “Mr. Taylor: (Interposing) My lawyers will respond to you-
      “The Court: (Interposing) I’ll do that, sir.
      “Mr. Taylor: My lawyers will respond to you, sir.
      “The Court: You be quiet, or you’ll — there will be some more contempts-
      “Mr. Taylor: (Interrupting) No, you heard what I said.
      “The Court: I have you nine counts. First Count, 30 days in jail; Second Count, 60 days in jail; Third Count, 90 days in jail; Fourth Count, six months in jail; Fifth Count, six months in jail; Sixth Count, six months in jail; Seventh Count, six months in jail; Eighth Count, one year in jail; Ninth Count, one year in jail, all to run consecutive.
      “Take him away.
      “Mr. Taylor: We will answer you in court.
      “The Court: I’d be glad to see you.” App. 28-29.

       The nine charges of contempt were described in the certificate as follows:

        “Contempt 1. Mr. Taylor, in questioning a prospective juror, on the second day of Voir Dire, repeatedly ignored the Court’s order not to continue a certain line of questioning and to ask his questions of the jury as a whole, He evidenced utter disrespect for prospective jurors (T. E. 335-347).

        “Contempt 2. The court sustained the Commonwealth objection on the use of a prior statement to cross examine Officer Hogan and not to go into the escape of Narvel Tinsley. Mr. Taylor repeatedly and completely ignored the court’s ruling (T. E. 1071-1080).

        “Contempt S. During the playing of a tape recording of the voice of witness David White, Mr. Taylor wrote on a blackboard. After the playing of the tape it was ordered that the blackboard be removed from the court and Mr. Taylor was advised by the court that he could use it in his final summation to the jury. Mr. Taylor was disrespectful to the court by his tone of voice and manner when he replied, ‘I’ll certainly keep that in mind, your Honor’ (T. E. 1355).

        “Contempt 4- During cross-examination of Narvel Tinsley, by Mr. Schroering, Mr. Taylor interrupted and moved for a recess, was overruled by the court, and then became most disrespectful to the court and refused to take his seat at counsel’s table as ordered. “Contempt 6. Complete and utter disrespect by Mr. Taylor in the questioning of Mr. Irvin Foley, and (sic) attorney and Legal Advisor to the Louisville Police Department when he continually disobeyed the court’s ruling regarding a press conference which the court had ruled on unadmissible (sic). Mr. Taylor accused the court of disallowing admittance of black persons in the courtroom during the examination of this witness and made a statement in the presence of the jury inferring that only white police officers could enter the courtroom. It has always been the rule of this court that there will be no interruption during the examination of a witness or during closing arguments by people coming and going into and from the courtroom, which rule was known to Mr. Taylor, (T. E. 1950-1955). “Contempt 6. The witness Jesse Taylor, a Louisville Police Officer, read a statement by witness, David White. A Ruling was made by the court that the statement spoke for itself, had been introduced in evidence and could not be commented on by Officer Taylor, who merely took the statement. Mr. Taylor continued to disregard the court’s order and ruling by continually reading parts of the statement out of context (T. E. 2008-2016).

        “Contempt 7. Mr. Taylor in examining Mr. Norbert Brown, again referred to a press conference that the court had previously ordered him not to go into. He also waved his arms at the witness in a derogatory manner indicating the witness was not truthful and showing utter contempt of the court’s ruling (T. E. 2030-2032). “Contempt 8. The court directed Mr. Taylor to call his next witness. He called Lt. Garrett, Louisville Police Department. After the witness was sworn and took the stand, a deputy Sheriff advised the court that Mr. Taylor’s aide was not searched, as everyone else had been upon entering the courtroom. Mr. Taylor ordered the deputy to search his aide. The court ordered Mr. Taylor to begin his examination, which he refused to do until he was cited for contempt in the court’s chamber (T. E. 2068-2069).

        “Contempt 9. Mr. Taylor repeatedly asked the same question of witness Floyd Miller that the court had held improper. He was also disrespectful in his tone of voice when referring to a certain police officer as ‘this nice police officer’ (T. E. 2169-2172).” App. 24-26.

       494 S. W. 2d 737, 744 (1973).

       App. 29.

       “Punishment without issue or trial [is] so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process, that the assumption that the court saw everything that went on in open court [is] required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it.” Cooke v. United States, 267 U. S. 517, 536 (1925).

        Groppi dealt with contempt of a state legislative body, and the contempt action was not taken until several days later without notice or opportunity for Groppi to be heard.

       The American Bar Association Advisory Committee on the Judge’s Function has recommended, inter alia:

      “Notice of charges and opportunity to be heard.
      “Before imposing any punishment for criminal contempt, the judge should give the offender notice of the charges and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment.

        “Commentary

      “Although there is authority that in-court contempts can be punished without notice of charges or an opportunity to be heard, Ex parte Terry, 128 U. S. 289 (1888), such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect upon the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course. Nothing in this standard, however, implies that a plenary trial of contempt charges is required.” American Bar Association Project on Standards for Criminal Justice, The Function of the Trial Judge § 7.4, p. 95 (Approved Draft 1972).
      Cf. Fed. Rule Crim. Proc. 42 (b); Harris v. United States, 382 U. S. 162 (1965). State courts have reached a similar conclusion. See, e. g., New York State Appellate Division, First and Second Departments, Special Rules Concerning Court Decorum § 609.2 (b) (1971) in N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 352 (1973).

       My Brother Rehnquist’s dissent insists that the Court has rejected the teaching of Sacher v. United States, 343 U. S. 1 (1952), that in a posttrial contempt proceeding, the court need not afford the contemnor the full panoply of procedures such as "the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial.” Id., at 9 (emphasis added). But all we have decided today is that a contemnor is entitled to the elementary due process protections of “reasonable notice of the specific charges and opportunity to be heard in his own behalf,” supra, at 499, neither of which petitioner received. Nowhere do we intimate that “a full-scale trial is appropriate.” Ibid.; see also n. 8, supra. Moreover, whatever justifications may sometimes necessitate immediate imposition of summary punishment during trial “to maintain order in the courtroom and the integrity of the trial process in the face of an ‘actual obstruction of justice,’ ” Codispoti v. Pennsylvania, post, at 513, “[rjeasons for permitting straightway exercise of summary power are not reasons for compelling or encouraging its immediate exercise.” Sacher v. United States, supra, at 9-10.

       Mr. Justice Rehnquist’s dissent also asserts that our decision provides the means whereby “a judge can be driven out of a case by any counsel sufficiently astute to read the new-found constitutional principles enunciated [here and in Mayberry v. Pennsylvania, 400 U. S. 455 (1971)].” Post, at 530. But this statement — perhaps dissenter’s license — misconceives our holding and undervalues the import of the Due Process Clause. As expressly noted in the text, we by no means equate this case with Mayberry v. Pennsylvania. It is not petitioner’s conduct, considered alone, that requires recusal in this case; rather, the critical factor, as revealed by the record before us, is the character of respondent’s response to misbehavior during the course of the trial. The dissent, of course, may view the record differently, but on that issue we are in unavoidable disagreement.