The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_615/90_615.d2

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Subject: 90-615 -- DISSENT, PERETZ v. UNITED STATES




    SUPREME COURT OF THE UNITED STATES


No. 90-615



RAFAEL PERETZ, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the second
circuit

[June 27, 1991]



    Justice Scalia, dissenting.
    When, at a pretrial conference, the United States District Judge
assigned to this case asked petitioner's counsel (in petitioner's presence)
whether he had "[a]ny objection to picking the jury before a magistrate,"
counsel responded, "I would love the opportunity."  App. 2.  Before
conducting voir dire, the Magistrate herself asked counsel, "I have the
consent of your client to proceed with the jury selection?"  Counsel
answered "Yes, your Honor."  Id., at 5.  After the jury was selected under
the Magistrate's supervision, but before it was sworn, the parties met with
the District Judge to discuss unresolved pretrial matters.  Neither
petitioner nor his counsel raised any objection at that time -- or at any
other point during the trial -- to the Magistrate's role in jury selection.
Two significant events transpired thereafter.  First, the jury convicted
petitioner on all counts.  Second, after the conviction but prior to
sentencing, this Court announced Gomez v. United States, 490 U. S. 858
(1989), holding that the Magistrates Act did not authorize magistrates to
conduct felony voir dire (in that case, where a defendant had objected).
On appeal, petitioner sought to raise a Gomez claim, but the Court of
Appeals held that his consent below precluded him from raising this
newly-discovered objection to the Magistrate's role.
    As a general matter, of course, a litigant must raise all issues and
objections at trial.  See Freytag v. Commissioner, ante, at --- (Scalia,
J., concurring in judgment) (slip op., at 3-4).  For criminal proceedings
in the federal courts, this principle is embodied in Federal Rule of
Criminal Procedure 51, which requires "a party, at the time the ruling or
order of the [trial] court is made or sought, [to] mak[e] known to the
court the action which that party desires the court to take or that party's
objection to the action of the court and the grounds therefor."
    Rule 51's command is not, however, absolute.  One of the hoariest
precepts in our federal judicial system is that a claim going to a court's
subject-matter jurisdiction may be raised at any point in the litigation by
any party.  See Freytag, ante, at --- (slip op., at 5) (Scalia, J.,
concurring in judgment).  Petitioner seeks to invoke that exception here,
relying on our statement in Gomez that the magistrate lacked "jurisdiction
to preside" over the voir dire in that case, 490 U. S., at 876.  But, as
Judge Easterbrook has aptly observed, " `jurisdiction' . . . is a many-hued
term."  United States v. Wey, 895 F. 2d 429, 431 (CA7), cert. denied, 497
U. S. --- (1990).  We used it in Gomez as a synonym for "authority," not in
the technical sense involving subject-matter jurisdiction.  The judgment
here is the judgment of the District Court; the relevant question is
whether it had subject-matter jurisdiction; and there is no doubt that it
had.  The fact that the court may have improperly delegated to the
Magistrate a function it should have performed personally goes to the
lawfulness of the manner in which it acted, but not to its jurisdiction to
act.
    This venerable exception to the contemporaneous-objection rule being
inapplicable here, petitioner plainly forfeited the right to advance his
current challenges to the Magistrate's role.  In certain narrow contexts,
however, appellate courts have discretion to overlook a trial forfeiture.
The most important of these is described in Federal Rule of Criminal
Procedure 52(b): in criminal cases, an appellate court may notice "errors
or defects" not brought to the attention of the trial court if they are
"plain" and "affec[t] substantial rights."  See United States v. Young, 470
U. S. 1, 15, and n. 12 (1985).  Petitioner's contention that this case
falls into that exception comes up against our admonition that Rule 52(b)
applies only to errors that are obvious as well as significantly
prejudicial.  See, e. g., United States v. Frady, 456 U. S. 152, 163, and
nn. 13, 14 (1982).  The error alleged here was anything but obvious.  At
the time this case was tried, the Second Circuit had held that a magistrate
was authorized to conduct felony voir dire even if the defendant objected,
see United States v. Garcia, 848 F. 2d 1324 (1988), rev'd sub nom. Gomez v.
United States, 490 U. S. 858 (1989).  No Circuit had held that it was error
for a magistrate to conduct voir dire where the defendant consented.
Perhaps the best indication that there was no "plain" error, of course, is
that five Justices of this Court today hold that there was no error at all.
{1}
    Even when an error is not "plain," this Court has in extraordinary
circumstances exercised discretion to consider claims forfeited below.
See, e. g., Glidden Co. v. Zdanok, 370 U. S. 530, 535-536 (1962) (Opinion
of Harlan, J.); Grosso v. United States, 390 U. S. 62, 71-72 (1968); Hormel
v. Helvering, 312 U. S. 552, 556-560 (1941).  In my view, that course is
appropriate here.  Petitioner's principal claims are that the Magistrates
Act does not allow a district court to assign felony voir dire to a
magistrate even with the defendant's consent, and that in any event the
consent here was ineffective because given orally by counsel and not in
writing by the defendant.  By definition, these claims can be advanced only
by a litigant who will, if ordinary rules are applied, be deemed to have
forfeited them: a defendant who objects will not be assigned to the
magistrate at all.  Thus, if we invariably dismissed claims of this nature
on the ground of forfeiture, district courts would never know whether the
Act authorizes them, with the defendant's consent, to refer felony voir
dire to a magistrate, and, if so, what form the consent must take.  Cf. 18
U. S. C. MDRV 3401(b) (defendant's consent to magistrate in misdemeanor
trial must be in writing).
    Given the impediments to the proper assertion of these claims, I
believe we are justified in reaching the statutory issue today to guide the
district courts in the future performance of their duties.  It is not that
we must address the claims because all legal questions require judicial
answers, cf. Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U. S. 464, 489 (1982); Webster v.
Doe, 486 U. S. 592, 612-613 (1988) (Scalia, J., dissenting); but simply
that the relevant rules and statutes governing forfeiture, as we have long
construed them, recognize a limited discretion which it is eminently
sensible to exercise here.
    Turning to the merits of the statutory claim, I am in general agreement
with Justice Marshall.  In my view, Gomez was driven not primarily by the
constitutional problems associated with forcing a litigant to adjudicate
his federal claim before a magistrate, but by ordinary principles of
statutory interpretation.  By specifically authorizing magistrates to
perform duties in civil and misdemeanor trials, and specifying the manner
in which parties were to express their consent in those situations, the
statute suggested absence of authority to preside over felony trials
through some (unspecified) mode of consent.  The canon of ejusdem generis
keeps the "additional duties" clause from swallowing up the rest of the
statute.  See Gomez, supra, at 872.
    I would therefore conclude (as respondent in fact conceded) that
district courts are not authorized by the Magistrates Act to delegate
felony voir dire to magistrates.  Having reached that conclusion, I need
not, and do not, answer the serious and difficult constitutional questions
raised by the contrary construction.  I note, however, that while there may
be persuasive reasons why the use of a magistrate in these circumstances is
constitutional, the Court does not provide them today.  The Court's
analysis turns on the fact that courts themselves control the decision
whether and to what extent magistrates will be used.  Ante, at 13-15.  But
the Constitution guarantees not merely that no Branch will be forced by one
of the other Branches to let someone else exercise its assigned powers --
but that none of the Branches will itself alienate its assigned powers.
Otherwise, the doctrine of unconstitutional delegation of legislative power
(which delegation cannot plausibly be compelled by one of the other
Branches) is a dead letter, and our decisions in A. L. A. Schechter Poultry
Corp. v. United States, 295 U. S. 495 (1935), and Panama Refining Co. v.
Ryan, 293 U. S. 388 (1935) are inexplicable.









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1
    Because I conclude that the alleged error was not "plain," I have no
occasion to assess its prejudicial impact, assuming that that is possible.
Cf. Gomez v. United States, 490 U. S., at 876; Arizona v. Fulminante, 499
U. S. ---, --- (1991).