# Respondents Brief — Thomas v. Arn

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 140

## Text

: Office-Supreme Court, US,
FILED

Iu The Se
Supreme Court of the Huited States
OCTOBER TERM, 1984

KATHY THOMAS
Petitioner,

v. :

DOROTHY ARN, Superintendent,
Ohio Reformatory for Women,
Respondent.

ON WRIT OF CERTIORARI TO THE
UNITED STA) ES COURT OF APPEALS
| FOR THE SIXTH CIRCUIT

ee

BRIEF FOR RESPONDENT

ANTHONY J. CELEBREZZE, JR.
Atto.ney General of Ohio

RICHARD DAVID DRAKE
; Assistant Attorney Genera/
n Counsel! of Record

’ 30 East Broad Street, 10th Fioor
Columbus, Ohio 43215
(614) 466-2980

QUESTION PRESENTED

WHETHER, CONSISTENT WITH THE FEDERAL
MAGISTRATES ACT, A CIRCUIT COURT MAY
CONDITION APPELLATE REVIEW UPON THE
FILING OF OBJECTIONS TO THE RECOMMENDA-—
TION OF THE MAGISTRATE.

PARTIES

Pursuant to Rule 34.1(b) of the Rules of the
Supreme Court, all parties to this action are listed in the
caption of the case.

iii
TABLE OF CONTENTS
Page
eo. tc eee see ececees i
ee eee wp eeeeeceeeced ii
CO SE Pere 1
eee ced de eeeseecececs 1
CONSTITUTIONAL AND STATUTORY
ED oc ccc cc ceeccesecece 1
ee 7
SUMMARY OF ARGUMENT..................4.. 14
ARGUMENT
Consistent With The Federal Magistrates
Act, a Circuit Court May Condition
Appellate Review Upon The Filing Of
Objections To The Report Of The Mazgis-
eee ek ce ceeeeeeececes 15
re is ee eee ee sceceeese« 33

eg Ve ae 8 |) > eee 33

iv

TABLE OF AUTHORITIES

Page

Cases:
Britt v. Simi Valley School District,

708 F.2d 452 (9th Cir. 1983) ................ 16
Buhrle v. State,

Ge P.O VETS CUUVO. TEBE) 6. ccc ccc ccc ccess 32
Camby v. Davis,

719 F.20d.1G8 (4th Cir. 1963)... ccc ccs 15
Campbeil v. United States District Court,

501 F.2d 196 (9th Cir. 1974) ................ 22
Clark v. Ueberee Finanz-Korporation,

is a coe ie biebeee dt ones 26
Cupp v. Naughten,

ee Ss ba os Keeecaneecnc@eoenl 27
Engle v. Issac,

, § f. ia 8, 28, 32
Haas v. State,

103 Ohio St. 1, 132 N.E. 158 (1921) ........... 8
Hormel v. Helvering,

se oi i ed al ea 26
Ingram v. Richardson,

471 F.2d 1268 (6th Cir. 1972) ............... 17
Jackson v. Virginia,

te 30
John B. Hull, Inc. v. Waterbury Petroleum

Products Inc., 588 F.2d 24 (2nd Cir.

Pet edaes GGueduaehanckhesecéenns 15
Keener v. Ridenour,

594 F.2d 581 (6th Cir. 1979) ................ 28
Link v. Wabash Railroad Co.,

ee 27
Lorin Corp. v. Goto & Co.,

700 F.2d 1202 (8th Cir. 1983) ............... 16

Mathews v. Weber,
ee I ws . cu cocci scucteben 16, 25

7

TABLE OF AUTHORITIES cont’d

Page

McCall v. Andrus,

628 F.2d 1185 (9th Cir. 1980) ............... 16
McCarthy v. Mason,

714 F.2d 234 (2nd Cir. 1983)............. 15, 28
Messimer v. Lockhart,

ee E,W oc ccs ccnceeeenes 16
Nationa! Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639 (1976) .............. 27
Nettles v. Wainwright,

677 F.2d 404 (5th Cir. 1982) (en banc)

ee te ee ee Ld a ee owe 16, 30
Park Motor Mart, inc. v. Ford Motor Co.,

616 F.2d 603 (1st Cir. 1980) ............. 15, 22
Patterson v. Mintzes,

717 F.2d 204 (6th Cir. 1963) ......... cc eeees 28
Singleton v. Wulff,

Eee. era 26
State v. Robbins,

58 Ohio St. 2d 74, 388 N.E. 2d 755

(iii. acai ne hen aae twee ees 6ds beeed 14
State v. Smith,

247 Ga. 612, 277 S.E. 2d 678 (1981).......... 32
State v. Thor as,

4 . | | ESREGESRSPSP SPP ara ar 1,8

State v. Thomas,

66 Ohio St. 2d, 423 N.E. 2d 137

i itwi 6 oe tesenden csedeusendaeeees 1,8
State v. Thomas,

13 Ohio App. 3d 211, 468 N.E. 2d 763

I ee a eta webbeoceeuned 32
Thomas v. Arn,

728 F.2d 813 (6th Cir. 1984) .............. 1, 12
T.P.O. v. McMillan,

460 F.2d 348 (7th Cir. 1972)... ... ccc eee eee: 17

United States v. Frady,
in cee sc eenan ene eee ee 28

vi

TABLE OF AUTHORITIES cont‘d

Page

United States v. Lewis,

621 F.2d 1382 (Sth Cir. 1980) ............... 15
United States v. Raddatz,

ee TS i os wins p60 Ute bbe d 21, 26
United States v. Schronce,

727 F.2d 91 (4th Cir. 1964)... ween 15
United States v. Walters,

638 F.2d 947 (6th Cir. 1981) ....... 12, 16, 27, 28
Wingo v. Wedding,

as kind « kebab see whe 17
Statutes:
ee EP IEEIOED 6 oc ccc ccestevencveeda 25
28 U.S.C. Section 636(b) ....... ae ee 2, 10, 21
Ze USC. Bastien GRICNS) nw ccc ccc cccccccccess 29
ey I oe Pe eb eae 1
Ee 27
ne ee os dd epkeeeeed i]
Ohio Revised Code Section 2903.02................ 7
Rules:
Rule 8(b), Rules Governing Section 2254 Cases

in the United States District Courts.......... 3, 10
Aule 72, Federal Rules of Civil Procedure............ 4
Miscellaneous Authorities:

Hearings on the Jurisdiction of United States
Magistrates, before the Subcommittee
on Improvements in Judicial Machinery
of the Senate Committee on the Judiciary,
94th Cong., Ist Sess. (1975) ........... 18, 21, 25

vii

TABLE OF AUTHORITIES cont’d

Page
H.R. Rep. No. 94-1609 (1976), reprinted in,
U.S. Code Cong. & Admin. News 1976,
0 te ee er ee
Annual Report of the Director of the Administrative
Office of the United States Courts (1980)....... 29

Annual Report of the Director of the Administrative
Office of the United States Courts (1983)....... 29

OPINIONS BELOW

The decision of the United States Court of Appeals
for the Sixth Circuit is reported as Thomas v. Arn, 728
F. 2d 813 (6th Cir. 1984). (JA-61)' The decision of the
United States District Court for the Northern District
of Ohio, Eastern Division, is unreported. (JA-51). The
report and recommendation of the United States
Magistrate is unreported. (JA-37). The decision of the
Supreme Court of Ohio is reported as State v. Thomas,
66 Ohio St. 2d, 423 N.E. 2d 137 (1981). (JA-32a). The
decision of the Ohio Court of Appeals for the Eighth
Judicial District is reported as State v. Thomas, 17 Ohio
Ops. 397 (1980). (JA-9).

JURISDICTION

The decision of the United States Court of Appeals
for the Sixth Circuit was issued on March 9, 1984 and the
order denying rehearing was issued on June 25, 1984.
Jurisdiction is conferred by 28 U.S.C. Section 1254(1).

The petition for writ of certiorari was filed on
September 20, 1984. Certiorari was granted by order
of March 4, 1985.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The case involves Section 1 of Amendment XIV
to the Constitution of the United States:

‘References to the Joint Appendix of this brief are designated as
a he

SECTION 1. All persons born or natural-
ized in the United States, and subject ot
the jurisdiction thereof, are citizens of
the United States and of the State
wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive
any person of life, liberty, or property,
without due process of law; nor deny
to any person within its jurisdiction the
equal protection of the laws.

The case also involves 28 U.S.C. Section 636(b)
which provides in pertinent part:

(1) Notwithstanding any provision of law to
the contrary—

(A) a judge may designate a magistrate
to hear and determine any pretrial matter
pending before the court, except a motion
for injunctive relief, for judgment on the
pleadings, for summary judgment, to
dismiss or quash an _ indictrnent or
information made by the defendant, to
suppress evidence in a criminal case, to
dismiss or to permit maintenance of a
class action, to dismiss for failure to state
a claim upon which relief can be granted,
and to involuntarily dismiss an action.
A judge of the court may reconsider any
pretrial matter under this subparagraph
(A) where it has been shown that the
magistrate’s order is clearly erroneous or
contrary to law.

(B) a judge may also designate a
magistrate to conduct hearings, including

evidentiary hearings, and to submit to a
judge of the court proposed findings of
fact and recommendations for the disposi-
tion, by a judge of the court, of any
motion excepted in subparagraph (A), of
applications for posttrial relief made by
individuals convicted of criminal offenses
and of prisoner petitions challenging
conditions of confinement.

(C) the magistrate shall file his
proposed findings and recommendations
under subparagraph (B) with the couri
and a copy shall forthwith be mailed to al!
parties.

Within te.: days after being served with a
copy, any party may serve and file written
objections to such proposed findings and
recommendations as provided by rules of
court. A judge of the court shall make a de
novo determination of those portions of the
report or specified proposed findings or
recommendations to which objection is
made. A judge of the court may accept,
reject, or modify, in whole or in part, the
findings or recommendations made by the
magistrate. The judge may also receive
further evidence or recommit the matter to
the magistrate with instructions.

The case also involves Rule 8 of the
Governing Section 2254 Cases In The United States
District Courts which provides in pertinent part:

(B) Function of the Magistrate—
(1) When designated to do so in
accordance with 28 U.S.C. Section 636

Rules

(b), a magistrate may conduct hearings,
including evidentiary hearings, on the
petition, and submit to a judge of the
court proposed findings of fact and
recommendations for disposition.

(2) The magistrate shall file proposed
findings and recommendations with the
court and a copy shall forthwith be
mailed to all parties.

(3) Within ten days after being
served with a copy, any party may serve
and file written objections to such
proposed findings and recommendations
as provided by rules of court.

(4) A judge of the court shall make a
de novo determination of those portions
of the report or specified proposed find-
ings or recommendations to which objec-
tion is made. A judge of the court may
accept, reject, or modify in whole or in
part any findings or recommendations
made by the magistrate.

The case also involves Rule 72 of the Federal Rules

of Civil Procedure which provides:

(a) NONDISPOSITIVE MATTERS. A
magistrate to whom a pretrial matter not
dispositive of a claim or defense of a
party is referred to hear and determine
shall promptiy conduct such proceedings
as are required and when appropriate
enter into the record a written order
setting forth the disposition of the matter.
The district judge to whom the case is
assigned shal! consider objectioiis made by

the parties, provided they are served and
filed within 10 days after the entry of the
order, and shall modify or set aside any
portion of the magistrate’s order found
to be clearly erroneous or cortrary to
law.

(b) DISPOSITIVE MOTIONS AND
PRISONER PETITIONS. A magistrate
assigned without consent of the parties
to hear a pretrial matter dispositive of a
claim or defense of a party or a prisoner
petition challenging the conditions of
confinement shall promptly conduct such
proceedings as are required. A record
shall be made of all evidentiary proceed-
ings before the magistrate, and a record
may be made of such other proceedings
as the magistrate deems necessary. The
magistrate shall enter into the record a
recommendation for disposition of the
matter, including proposed findings of
fact when appropriate. The clerk shall
forthwith mail copies to all parties.

A party objecting to the recommended
disposition of the matter shall promptly
arrange for the transcription of the
record, or portions of it as all parties may
agree upon or the magistrate deems
sufficient, unless the district judge other-
wise directs. Within 10 days after being
served with a copy of the recommended
disposition, a party may serve and file
specific, written objections to the
proposed findings and recommendations.
A party may respond to another party's
objections within 10 days after being

served with a copy thereof. The district
judge to whom the case is assigned shall
make a de novo determination upon the
record, or after additional evidence, of
any portion of the magistrate’s disposition
to which specific written objection has
been made in accordance with this rule.
The district judge may accept, reject, or
modify the recommended decision,
receive further evidence, or recommit the
matter to the magistrate with instructions.

CASE NO. 84—5630

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

KATHY THOMAS
Petitioner,

v.

DOROTHY ARN, Superintendent,
Ohio Reformatory for Women,
Respondent.

STATEMENT OF THE CASE

Petitioner Kathy Thomas was indicted by the
January 1978 Term of the Cuyahoga County, Ohio,
Grand Jury on one count of murder in violation of Ohio
Revised Code Section 2903.02? The indictment
stemmed from the shooting death of petitioner's com-
mon-law husband. Subsequent to jury trial, petitioner
was found guilty as charged. Petitioner was sentenced
to a term of from fifteen (15) years to life imprison-
ment.*

Petitioner perfected a timely appeal as of right to
the Ohio Court of Appeals for the Eighth Judicial District.
In a split decision, the intermediate appellate court held
that the trial court had erred in excluding testimony con-

2The Ohio murder statute provides that “[nJo person shell purposely
cause the death of another.”

31m an unreleted proceeding, petitioner wes convicted of trafficking in
drugs. That conviction in not, however, challenged herein.

cerning the psychological characteristics of battered
women. The appellate court reversed and remanded for a
new trial. State v. Thomas, 17 Ohio Ops. 3rd 397
(1980). (JA-9).

The Supreme Court of Ohio thereafter granted
discretionary review. The sole issue raised by the
prosecution on appeal was “‘whether the trial court
committed reversible error by excluding testimony on the
subject of the ‘battered wife syndrome’ by an expert on
battered wives, where defendant pleaded self-defense to
killing her husband’’. (JA-33). In an unanimous opinion,
the Court held that:

Expert testimony on the “battered wife
syndrome” by a psychiatric social worker
to support defendant's claim of self-
defense is inadmissible herein because (1)
it is irrelevant and immaterial to the issue
of whether defendant acted in self-
defense at the time of the shooting; (2)
the subject of the expert testimony is
within the understanding of the jury; (3)
the “battered wife syndrome” is not
sufficiently developed as a matter of
commonly accepted scientific knowledge,
to warrant testimony under the guise of
expertise; and (4) its prejudicial impact
outweighs its probative value.

State v. Thomas, 66 Ohio St. 2d 518, 423 N.E. 2d 137
(1987) (syllabus by the court)* (JA-32a). In addition to
the general proposition of law contained in the syllabus,
the Court embraced the appellate court dissenting
opinion by stating:

4+-1m Ohio, the court's syllabus contains the controtling lew.” Engle
v. Issac, 456 US. 107, 111 n. 3 (1982), citing Haas v. State, 103 Ohio St. 1,
7-8, 132 N.E. 158, 159-160 (1921).

The cogent dissenting opinion in the
Court of Appeals of Judge Blanche
Krupansky in this case succinctly sets
forth eight reasons for the proper exciu-
sion of such expert testimony about the
“battered wife syndrome”’ as follows:

1. There was no proper proffer of expert

testimony.
2. Appellant’s [Defendant’s] expert had
no personal contact with appellant.

3. No hypothetical question was pro-
pounded to appellant’s expert witness.

4. There was no determination that
appellant was in fact a battered woman.

5. Analysis of the issues raised was within
the reaim of the jury.

5. The trial court’s jury charge more than

7. There was no prejudice to appellant.

8. The trial court did not abuse its discre-
tion. 66 Ohio St. 2d at 519 n. 1. (JA-
32b).

The Supreme Court of Ohio thus reinstated petitioner's

Petitioner, through counsel,> thereafter filed a
petition for writ of habeas corpus pursuant to 28 U S.C.
Section 2254 with the United States District Court for
the Northern District of Ohio, Eastern Division. Therein,
petitioner asserted four (4) grounds for habeas corpus
relief. By order, then District Judge Leroy Contie, Jr.,®

Spoth in the state and the federsi judiciary, petitioner has at all times
Deen represented by the same attorney.

Spuring the pendency of the district court action, Judge Contie was
appointed to the United States Court of Appeais for the Sixth Circuit.

16

referred the matter to United States Magistrate Charles R.
Laurie for preparation of a report and recommendation
pursuant to the requisites of 28 U.S.C. Section 636(b)(1)
and Rule 8(b) of the Rules Governing Section 2254 Cases
In The United States District Courts. (Docket Entry 4,
JA-1). Relevant portions of the state court record,
including the almost two thousand page trial transcript,
were thereafter filed and reviewed by the Magistrate in
conjunction with the briefs of the parties.

On May 11, 1982, the Magistrate issued a report and
recommendation which recommended that the petition
for writ of habeas corpus be dismissed. (JA-37). The
Magistrate’s report and recommendation contained the
following prominent admonition and warning:

ANY OBJECTIONS to this Report and
Recommendation must be filed with the
Clerk of Courts within ten (10) days of
receipt of this notice. Failure to file
objections within the specified time
waives the right to appeal the District
Court’s order. See: United States v.
Walters, 638 F. 2d 947 (6th Dir. 1981).
(JA-50).

The parties were served with copies of the Magistrate's
report and recommendation. On May 24, 1982, peti-
tioner filed a motion for an extension of time in which to
file objections to the Magistrate’s report and recommenda-
tion. (Docket Entry 12, JA-2). On May 28, 1982, Judge
Contie issued an order granting petitioner an extension
through June 15, 1982 in which to file objections. How-
ever, almost three (3) months passed and petitioner
neither filed objections nor otherwise indicated that any
objections would be forthcoming.

11

On September 3, 1982, Judge Contie sua sponte
issued an order finding petitioner's claims to be without
merit and dismissing the petition. (JA-51). Therein,
Judge Contie reviewed the chronology of events and
stated:

By Order this Court referred this matter
to a United States Magistrate for his
report and recommendation on July 29,
1981. The Magistrate filed his report and
recommended disposition on May 11,
1982. The Magistrate recommends that
Kathy Thomas’ petition be denied with
regard to all four listed grounds for relief.
The petitioner filed a motion for exten-
sion of time to file objections to the
Magistrate’s report and recommendation.
This motion was granted and the peti-
tioner was given until June 15, 1982. The
petitioner, however, has failed to file
objections. (JA-51).

A judgment entry dismissing the action was filed on
September 3, 1982. (JA-60). On November 1, 1982,
petitioner filed a ‘“‘motion for leave to file notice of
appeal’’. (Docket Entry 17, JA-2). The motion was
granted by District Judge David Dowd by order dated
November 24, 1982. (Docket Entry 18, JA-2). Peti-
tioner filed a notice of appeal on February 2, 1983.
(Docket Entry 20, JA-2).

Petitioner’s appeal was thereafter docketed in the
United States Court of Appeals for the Sixth Circuit.
Petitioner filed a brief which presented only one of the
four (4) claims that had been asserted in her habeas
corpus petition, i.e., that the state trial court had erred

12

in refusing to allow the testimony of a social worker as an
expert witness on “battered wife syndrome”. Respon-
dent’s brief raised two separate and distinct issues.
Respondent initially argued as a threshold matter that the
unexplained failure of petitioner to comply with the ex-
press notice contained in the Magistrate’s report and
recommendation constituted a waiver of appeal as
enunciated in the circuit court’s opinion in United
States v. Waiters, 638 F.2d 947 (6th Cir. 1981). Respon-
dent secondarily argued that petitioner’s sole substantive
claim was not cognizable in a federal habeas corpus
action as it, at most, presented an evidentiary question
wholly within the province of the state judiciary. Peti-
tioner did not file a reply brief or otherwise address the
waiver issue.

The Court of Appeals subsequently issued a notice
of oral argument to counsel for the parties. Petitioner's
attorney, however, informed the circuit court that he
would not be in attendance at the oral argument.
Consequently, oral argument was not held and the appeal
was decided on the briefs. The Court of Appeals was
thus afforded neither written nor oral explanation for
petitioner's failure to file objections as mandated by the
warning contained in the Magistrate’s report and recom-
mendation.

On March 9, 1984, the Court of Appeals issued an
opinion affirming the lower court judgment. Thomas v.
Arn, 728 F. 2d 813 (6th Cir. 1984). The circuit court
stated its rationale as follows:

Jurisdiction over the parties and subject
matter is appropriate pursuant to 28
U.S.C. Section 2241. The court, however,
faces the threshold issue raised by the
respondent of whether Thomas waived

13

her right to appeal due to her failure to
file objections to the report and recom-
mendation of the magistrate.

In United States v. Walters, 638 F. 2d
947 (6th Cir., 1981), this court held
that “’. . .a party shall file objections
[to a magistrate’s report] with the district
court or else waive right to appeal.”’ /d. at
950. But see Britt v. Simi Valley Unified
School District, 708 F. 2d 453, 454 (9th
Cir. 1983). The holding in Walters
announced over a year before the report
in this case was filed, was given prospec-
tive application, and accordingly, is
applicable to this action. As required by
Wa/ters, the report at issue here contained
a warning to the parties that failure to file
objections within ten days would result in
a waiver of the right to appeal the judg-
ment of the district court. 728 F. 2d at
814-815. (JA-62).

Petitioner thereafter filed a petition for rehearing. As the
sole justification for having failed to adhere to the warn-
ing contained in the Magistrate’s report and recommenda-
tion, petitioner’s attorney stated that “’[c] ounsel is the
one who screwed up.”’ (Petition for Rehearing at page 4).
No elaboration was given. By order dated June 25, 1984,
the Court of Appeals denied rehearing. (JA-65). This
Court granted petitioner’s ensuing petition to a writ of
certiorari by order dated March 4, 1985. (JA-66).

The facts which gave rise to petitioner’s murder
conviction have been exhaustively chronicled in the
various opinions of both the state and federal judiciary.
Petitioner admitted to having killed her common-law

— —

14

husband by shooting him once in the forehead and once
in the arm. Petitioner, however, claimed that the shoot-
ing was in self defense. Evidence admitted at trial was
indicative of physcial abuse inflicted upon petitioner
through the course of their stormy three year relation-
ship. At trial, petitioner testified that she shot her
common-law husband because he was coming toward her
and she was in grave fear. In statements made at the
scene of the crime, however, petitioner told police
officers that she and the victim had argued about burned
fish and a pawn ticket. He then shoved her down on a
couch and walked away and sat down in a chair. Peti-
tioner related to the officers that she then picked up a
gun, walked over to the co.ch, and stated “I’ve had
enough.”’ She then shot him twice as he sat in the chair.
While petitioner’s trial testimony was consistent with
self defense under Ohio law, the version of the events
recounted at the crime scene clearly were not. See
State v. Robbins, 58 Ohio St. 2d 74, 388 N.E. 2d 755
(1979). The jury apparently credited that account of the
activity made more contemporaneously to the events
themselves.

SUMMARY OF ARGUMENT

Congress enacted the Federal Magistrates Act as a
response to the massive increase in the caseload of the
federal judiciary. Magistrates were empowered to issue
dispositive rulings in cases subject to the proviso that a
party could obtain de novo review by a district judge
if the litigant filed timely objections to those portions of
the Magistrate’s proposed disposition to which the
litigant took objection. Congress thus intended to
maximize the assistance which Magistrates could provide
in reducing congested dockets while accomodating
Article |I| concerns by providing litigants the opportunity

15

to obtain de novo review. This system would aid district
judges by either disposing of the litigation in its entirety
or, upon the filing of specific objections, narrowing the
scope of the parties’ dispute.

A reversal of the judgment below would defeat the
congressional intent underlying the Federal Magistrates
Act by permitting a litigant to essentially appeal an
adverse Magistrate’s recommendation directly to a Court
of Appeals. Such holding would simply shift the primary
Article Il! oversight function from the district courts to
the appellate courts. Morever, upon the facts of the
instant case, a reversal by this Court would erode the
inherent supervisory power of a circuit court to sanction
an unexplained refusal to comply with the court’s direc-
tive.

ARGUMENT

The question presented in this case is whether a
United States Court of Appeals may, consistent with
the Federal Magistrates Act, condition appellate review of
a district court judgment upon the filing of objections to
a report and recommendation issued by a United States
Magistrate. The question is one which has divided the
circuit courts. With slight variations,’ the First, Second,
Fourth, Fifth, Sixth, Ninth and Eleventh Circuits have
held that the failure to file objections to a Magistrate’s
report and recommendation results in the waiver of
appellate consideration. See, respectively, Park Motor
Mart, Inc. v. Ford Motor Co., 616 F. 2d 603 (1st Cir.
1980); John B. Hull, Inc. v. Waterbury Petroleum
Products, Inc. 588 F.2d 24 (2nd Cir. 1978), McCarthy v.
Manson, 714 F. 2d 234 (2nd Cir. 1983); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984), Camby v. Davis,
719 F. 2d 198 (4th Cir. 1983); United States v. Lewis,

Tsome circuits make a distinction between appellate review of factual
determinations versus that of legal conciusions. Others emphasize the need
for an express notice to the litigants as to the consequence of the failure to
file objections.

16

621 F. 2d 1382 (5th Cir. 1980); United States v. Walters,
638 F. 2d 947 (6th Cir. 1981); McCa// v. Andrus, 628 F.
2d 1185 (9th Cir. 1980); Britt v. Simi Valley School
District, 708 F. 2d 452 (9th Cir. 1983); Nettles v. Wain-
wright, 677 F. 2d 404 (5th Cir. 1982) (en banc) (Unit B)
(now the United States Court of Appeals for the Eleventh
Circuit). The Eighth Circuit has held to the contrary.
Lorin Corp. v. Goto & Co., 700 F. 2d 1202 (8th Cir.
1983); Messimer v. Lockhart, 702 F. 2d 729 (8th Cir.
1983}. The issue is of national significance as reversal of
the judgment below would be tantamont to a declaratior
that disaffected litigants may, in effect, appeal an adverse
Magistrate’s report and recommendation directly to a
Court of Appeals. Such result would both defeat the
stated purposes of the Federal May.strates Act and
markedly increase the caseloads of what are already
congested circuit court dockets. An examination of
congressional intent, coupled with considerations of long
standing rules of appellate practice, dictates an affirmance
of the judgment of the Court of Appeals below.

1. The Legislative History Of The Federal
Magistrates Act Demonstrates That The
Failure To File Objections To A Magis-
trate’s Report And Recommendation
Constitutes A Waiver Of Further Review.

“After several years of study, the Congress in 1968
enacted the Federal Magistrates Act."’ Mathews v. Weber,
423 U.S. 261, 267 \1976). The Act abolished the office
of United States Commissioner and created a new
echelon of the federal judiciary. The Act was prompted
by a congressional recognition that a massive increase in
the caseload of the federal courts mandated either a
dramatic increase in Article ||| judgeships or the establish-
ment of a system of non-Article |!!! judicial officers who

17

could assist their Article ||| counterparts. The 1968 Act
was, however, met with a series of adverse judicial deci-
sions which severely limited the authority of Magistrates
and concommittedly impeded their ability to assist
Article II! judges. See, e.g., Wingo v. Wedding, 418
U.S. 461 (1974) (Magistrates held unable to conduct
evidentiary hearings in habeas corpus cases); 7.P.O. v.
McMillan, 460 F. 2d 348 (7th Cir. 1972) (Magistrates
held unable to hear dispositive motions in civil cases);
Ingram v. Richardson, 471 F. 2d 1268 (6th Cir. 1972)
(Magistrates held unable to make proposed findings of
fact and conclusions of law in social security cases).
Faced with such decisions, Congress accepted the
challenge of the Chief Justice and Justice White when
they stated ”. . .it is now for the Congress to act to
restate its intentions if its declared objectives are to be
carried out.” Wingo v. Wedding, 418 US. at 487. (dis-
senting opinion). This language prompted the 1976
Amendments to the Federal Magistrates Act.

Extensive congressional hearings were thereafter
held. input was received from a variety of sources ir.
cluding the Judicial Conference of the United States, the
Administrative Office of the United States Courts, and a
substantial number of federal judges. in hearings held on
S. 1283, Subcommittee Chairman Senator Burdick
stated:

In hearings held by this subcommittee on
the Omnibus District Court Judgeship bill
in the last Congress, the chief judges of
44 of the 94 Federal judicial districts
personally appeared and testified before
the subcommittee.

The overwhelming majority of the chief
judges who testified stated that the

18

magistrates were of great assistance to
the court in handling certain pretrial
matters in both civil and criminal cases
and were of the greatest assistance to the
court in handling petitions brought by
prisoners from both State and Federal
institutions.

Hearings on the Jurisdiction of United States Magistrates
before the Subcommittee on Improvements in Judicial
Machinery of the Senate Committee on the Judiciary,
94th Cong., Ist Sess. p. 1 (1975) (hereinafter Senate
Hearings). As initially introduced S. 1238 would have
amended 28 U.S.C. Section 636(b) to read as follows:

(b)(1) Notwithstanding any provision of
law to the contrary, a judge may designate
@ magistrate to hear and determine,
subject to review as hereinafter provided,
any pretrial matter pending before the
tive of the litigation, the disposition of
but not order. A judge may also designate
a magistrate to conduct evidentiary hear-
ings and make recommendations for the
disposition of applications for post trial
relief made by individuals convicted of
challenging conditions of confinement.
Upon timely request, as fixed by local
rule of court, by any party who has
appeared before the magistrate, either
personally or by submissions of affidavits
or brief, the court shall hear de novo those
portions of the report or specific proposed
findings of fact or conclusions of law to
which objection is made.

19

Subsequent to conference with representatives of the
Judicial Conference of the United States, Amendment
No. 589 was accepted and S. 1238 was altered to read
as follows:

(b)(1) Notwithstanding any provision of
law to the contrary

(A) a judge may designate a magistrate to
hear and determine, any pretrial matter
pending before the court, except a motion
for injunctive relief, for judgment on the
pleadings, for summary judgment, to
dismiss or quash an _ indictment or
information made by the defendant to
suppress evidence in a criminal case,
dismiss or to permit maintenance of a
class action, and to involuntarily dismiss
an action for failure to prosecute or for
failure to comply with an order of the
court. A judge of the court may rehear
any pretrial matter under the subsection
where it has been shown that the magis-
trate’s order is clearly erroneous or
contrary to law.

(B) a judge may also designate a magis-
trate to conduct hearings, including
evidentiary hearings, and to submit to a
judge of the court proposed findings of
fact and recommendations for the disposi-
tion, by 2 judge of the court, of any
motion excepted in subsection (A), of
applications for post-trial relief made by
individuals convicted of criminal offenses
and of prisoner petitions challenging
conditions of confinement.

(C) the magistrate shal! file his proposed
findings and recommendations under sub-
paragraph (B) of this subsection with the
clerk of the court, who shall forthwith
mail a copy to all parties. Within twenty
days after being served with notice of the
filing, any party may serve and file
written objections to such proposed find-
ings and recommendations together with a
motion applying to the court for action
on such proposed findings and recom-
mendations. The motion shall be deter-
mined by a judge of the court who may
accept, reject or modify, in whole or in
part, the findings or recommendations
made by the magistrate. The judge may
also receive further evidence or recommit
the matter to the magistrate with instruc-
tions.

The amendment simply clarified the distinction between
a Magistrate’s authority to adjudicate non-dispositive
versus dispositive matters. With respect to non-dispositive
matters, a Magistrate was empowered to make a final
determination subject only to a “clearly erroneous or
contrary to law” standard of review by the district court
judge upon objection of a party. in the context of
dispositive matters, a Magistrate was empowered to issue
only proposed findings of fact and conclusions of law.
/f a party filed objections to the proposed disposition, it
was incumbent upon the district court judge to conduct
a de novo review. Congress thus afforded litigants the
opportunity to obtai.. review anew by the district judge.
Congress was keenly aware of perceived Article |!
problems and, when S. 1238 was forwarded to the House,
the House Judiciary Committee clarified the Senate
intentions by adding the “de novo determination”

21

language presently in 28 U.S.C. Section 636(b). United
States v. Raddatz, 447 U.S. 667, 674-675 (1980), citing
H.R. Rep. No. 94-1609 (1976) reprinted in, U.S. Code
Cong. & Admin. News 1976, p.6163. The Congress thus
intended to give Magistrates the maximum allowable
authority to aid the district judge in the ultimate disposi-
tion of cases while, at the same time, accommodating
Article ||! concerns by providing litigants the opportunity
for “a de novo determination of those portions of the
report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. Section 636(b)
(1)(c). (emphasis added). The rationale was that objec-
tions would be made infrequently, thus disposing of the
litigation in its entirety, or that objections would be
made to only a portion of the Magistrate’s report,
thereby narrowing the scope of the dispute for
determination by the district judge. Drawing upon the
experience of the English system, the Judicial Conference
of the United States stated:

By requiring that a district judge conduct
a de novo hearing on any specific objec-
tion raised by any party, proposed sub-
section (b)(1) may well generate some
duplication of effort in a particular case.
However, the experience to date on the use
of magistrates in several United States
district courts and the report of the role
of masters in the English courts are
persuasive thet there will be, overall, a
considerable savings of the time of district
judges, since objections will normally be
made only in a relatively few instances.
Senate Hearings, p. 37.

Petitioner cites a reference in the House Report
to the decision in Campbel/ v. United States District
Court, 501 F. 2d 196 (9th Cir. 1974) for the proposition
that “Congress clearly intended that the district judge
fully review legal issues even though objections were not
filed.” This precise argument was considered and
rejected by the circuit court in Park Motor Mart, Inc. v.
Ford Motor Co., 616 F. 2d 603 (1st Cir. 1980). Therein,
the circuit court correctly reasoned as follows:

Basically, the dispute between the parties
centers upon the effect of the phrase
“may serve and file written objections.”
Defendants assert that a party may
decide not to file, but that filing is obliga-
tory if he is dissatisifed. Plaintiffs’
position is that the district court has a

losing party need file objections only if
he wishes a hearing.

Next, and most important, we see in the

mination’ with respect to matters “to

not. This seems a typical case of expressio
unius est exciusio alterius See United
States v. MBTA, 614 F.2d 27, 1 Cir.,
1980.

Neither can it be said that if objection is
made there will be a redetermination de
novo, but if none is made there should
still be a review, but of a lesser character.
A lesser standard of review, “clearly
erroneous Or contrary to law,” is explicitly
provided for in subsection (b)(1)(A)
cases See ante. The absence of such a
prov on here seems a speaking silence.

Turning to the general purpose of the
Statute, we see no reason for implying
an obligation to review when a review has
not been requested. The purpose of the
Federal Magistrates Act is to relieve courts
of unnecessary work. Since magistrates
are not Article Ii! judges, it is necessary
to provide for a redetermination by the
court, if requested, of matters falling
within subsection (b)(1)(B). To require
it if not requested would defeat the main
purpose of the Act. It is not burdensome
on the parties to require such a request.
We conclude *+*t a party “may” file
objections within ven days or he may not,
as he chooses, but he “shall” do so if he
wishes further consideration.

Finally, we have reviewed the legislative
history, but see no point in discussing it in
detail. We do not consider a single
sentence, contained in a long quotation in
1976 U.S. Code. Cong. & Admin. News,

24

pp. 6162, 6163, from Campbell v. United
States Dist. Court, 9 Cir., 1974, 501 F.2d
196, 206, cert. denied, 419 US. 879,
95 S.Ct. 143, 42 L.Ed.2d 119, “If neither
party contests the magistrate’s proposed
findings of fact, the court may assume
their correctness and decide the motion
on the applicable law,’’ as contradicting
our conclusions herein. 616 F.2d at 604-
605. (footnote omitted).

The resolution of the First Circuit is fully supported by
the legislative history of the 1976 Amendments. In
explaining the operation of the statute, District Judge
Metzner, Chairman of the Judicial Conference Committee
on the Administration of the Federal Magistrates System,
testified as follows:

When you are talking about magistrates,
you are talking about people within the
system, within the very same building. |
can best give you an example as to how
we do it to show you how simple it is.

Copies of the magistrate’s report are
sir, ultaneously sent to the judge and to
counsel by the magistrate. That report
has a concluding paragraph in it which
says that if you have any objections to
this report, you shall file them with the
court within ten days.

These papers are then taken by my
secretary and held for 12 days. We do
not hold them to the strict 10-day rule.
If any objections come in, she brings the

papers in to me and | review them and
decide it. If no objections come in, |
merely sign the magistrate’s order.

It is as simple as that. Senate Hearings,
p. 11.

The Administrative Office of the United States Courts,
the statutory body that supervises the administrative
aspects of the Federal Magistrates Act pursuant to 28
U.S.C. Section 604(d)(1), reads the Act the same way.
That Office stated:

Where a magistrate submits a report or
recommendation to a judge, the parties
should receive copies of the report and
recommendation.

The parties shall be allowed a reasonable
time within which to raise specific objec-
tions to the report and recommendation.
Where a magistrate makes a finding or
ruling on a motion or an issue, his deter-
mination should become that of the
district court, unless specific objection is
filed within a reasonable time. Senate
Hearings, p. 24.

The interpretation of the Administrative Office is not
without significance. Mathews v. Weber, 423 U.S. at 272
n. 7.

Of prime import, is that the interpretation urged by
petitioner would wholly frustrate the very purpose of the
1976 Amendments. Congress sought to maximize the
assistance provided to district judges without running
afoul of Article 11! proscriptions. To that end, Congress
provided that Magistrates could rule on dispositive

motions subject to the proviso that a litigant was afforded
the opportunity to obtain a de novo determination /f the
party exercised the option to do so. The legislation
clearly anticipated that Magistrates would issue recom-
mendations in a variety of contexts where pure “‘factual”’
issues are wholly absent, i.e., a motion to dismiss for
failure to state a claim upon which relief can be granted.
To argue that Congress, absent objections to the Magis-
trate’s recommended disposition, intended to require a
district judge to sua sponte redetermine such legal conclu-
sions is to pervert the legislative history and defeat the
Congressional intent of the 1976 Amendments. As stated
in a similar context, this Court should not “impute to
Congress a purpose to paralyze with one hand what it
sought to promote with the other.” United States v.
Raddatz, 447 U.S. 676 n. 3 (1980), citing, Clark v.
Ueberee Finanz-Korporation, 332 U.S. 480, 489 (1947).

11. A Federal Court Of Appeals May, Con-
sistent With General Principles Of Appel-
late Procedure And Its Inherent Super-
visory Powers, Decline To Review Issues
On Appeal Which Were Waived By An
Unexplained Failure To File Objections
With The Federal District Court Where
The Party Seeking To Raise Such Issues
Was Afforded Express Notice Of The
Consequences Of Such Procedural Default.

it is a well established rule that a Court of Appeals
will not consider an issue which was not preserved for
review in the lower court. Singleton v. Wu/ff, 428 US.
106, 120 (1976); Horme/ v. Helvering, 312 U.S. 552
(1941). It is equally well established that a Court of

27

Appeals is vested with inherent supervisory authority to
require compliance with “procedures deemed desirable
from the viewpoint of sound judicial practice although
in nowise commanded by statute or by the Constitution.’’
Cupp v. Naughten, 441 U.S. 141, 146 (1973). Moreover,
the unexplained disobediance of a judicial warning or
order such as that contained in the Magistrate’s report in
the instant case warrants appropriate sanction where the
court has given a litigant notice of the consequences of
his refusal to comply. See, generally, Link v. Wabash
Railroad Co., 370 U.S. 626 (1962); National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639
(1976). While any one of the aforementioned factors
compels affirmance of the judgment below, the instant
case presents a flagrant violation of all three principles.

Petitioner’s contention that the court below failed
to exercise its jurisdiction or has otherwise erected a
“jurisdictional barrier’’ to that jurisdiction conferred by
Congress pursuant to 28 U.S.C. Section 2253 is simply
untenable. The circuit court in United States v. Walters,
supra., expressly stated that the decision was premised
“through the exercise of our supervisory power.” 638
F.2d at 950. Moreover, the opinion herein upon review
specifically state that “[j]urisdiction over the parties
and subject matter is appropriate pursuant to 28 U.S.C.
Section 2241." Thomas v. Arn, 728 F.2d at 814. (JA-
62). The action of the court below was predicated upon
an unexpiained procedural default rather than an unlawful
refusal to exercise its appellate jurisdiction. That a Court
of Appeals has jurisdiction over the subject matter of a
habeas corpus appeal does not in all instances mean that
the appellate court should resolve a substantive issue

which has been forfeited by procedural default.2 Com-
pare, Engle v. Isaac, 456 U.S. 107 (1982). Finally,
petitioner’s purported reliance upon an unreported
opinion of the United States Court of Appeals for the
Sixth Circuit is unfounded as that court itself has
expressly held that such unreported decisions are without
precedential value. Keener v. Ridenour, 594 F.2d 581,
588-589 (6th Cir. 1979).

Petitioner’s due process argument is equally unavaii-
ing. The warning contained in the Magistrate’s report
could not have more clearly or simply given specific
notice of the consquences which would attend upon a
failure to file objections.? Petitioner’s blithe assertion
that the warning “had not registered . . . as a bar to
appeal”’ is nothing short of sheer sophistry. No equal
protection concerns exist as the rule applies equally to
any litigant who seeks review of a Magistrate’s report.
See, e.g., McCarthy v. Manson, 714 F.2d 234 (2nd Cir.
1983) (rule applied against the State of Connecticut in a
habeas corpus proceeding).

B8such is not to state that a rule of procedural default should in every
case prove inflexible. The Sixth Circuit has itself excused the failure to file
timely objections upon a showing of cause and in order to prevent manifest
injustice. See Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983). This
Court has likewise considered and promulgated standards of review in cases
of procedural default. United States v. Frady, 456 U.S. 152 (1982). Here,
the court below was not so much as afforded a proffer of any cause for the
procedural default.

9 indeed, the court in United States v. Walters, supra, was sensitive to
any arguable due process concerns and expressly held that the rule would
apply only prospectively and only where the litigant was afforded specific
notice such as that given herein. 638 F.2d at 950.

Reversal of the judgment below would be tanta-
mount to a declaration that a party dissatisfied with a
Magistrate’s recommended disposition may by-pass the
oversight function of an Article II! district judge and
appeal directly to a federal circuit court. Such a ruling
would be contrary to law as Congress has provided for
such appeals only in narrow circumstances which are not
herein presented. See 28 U.S.C. Section 636(c)(3).
Moreover, such a holding would have a devastating
impact upon the already over-burdened dockets of the
Courts of Appeals. The Annual Report of the Director
of the Administrative Office of the United States Courts
(1980) (hereinafter Annual Report) reflects that in the
year ending June 30, 1980, Magistrates handled 283,217
total matters. Annual Report, p. 10. Magistrates issued a
report and recommendation pursuant to the provisions of
28 U.S.C. Section 636(b)(1) in 11,578 prisoner peti-
tions,"° 4,213 social security cases, 5,810 other civil
“dispositive’’ matters and 1,485 criminal “dispositive’’
matters. Annual Report, p. 120. The number of prisoner
petitions filed in the district courts increased 37.3 per-
cent from 1975 to 1980. Annual Report, p. 62. In 1980,
23,200 appeals were filed in the Courts of Appeals
amounting to a 14.7 percent increase over appeals filed
in 1979 and a nearly 100 percent increase over those
filed in 1970. In contrast, the number of authorized
circuit court judgships increased only 36 percent in that
same ten year period. Annual Report, p. 1. In 1980,
prisoner petition appeals constituted 11.5 percent of the
total appeals in the Courts of Appeals.'' Of primary

in the year ending June 30, 1983, the number of Magistrates’
recommendations issued in prisoner cases increased to 18,543. Annual
Report, p. 198 (1983 Edition.).

"in 1983, prisoner petition appeals actually increased to 16.3 per-
cent of the overall! circuit court filings. Annual Report, p. 102, (1983 Edi-
tion.).

import is the unequal distribution and disparate impact
of prisoner petition appeals. Such appeals ranged from
an almost incredible 38.9 percent of the total filines in
the Fourth Circuit to les than 1 percent of filings in the
District of Columbia. A remarkable 56.3 percent of all
prisoner petition appeals were concentrated in the
Fourth, Fifth (now the Fifth and Eleventh) and Sixth
Circuit Courts of Appeals. Annual Report, p. 46. It is
noteworthy that these circuits which are most affected
have all embraced the waiver principle which is the
subject of the instant controversy. This Court has itself
had occasion to remark upon the strain placed upon the
circuit court judges faced with an ever increasing infiux
of prisoner appeals. Jackson v. Virginia, 443 U.S. 307,
338, n. 13 {1979) (dissenting opinion).

The Federal Magistrates Act was in large measure
intended to serve as a filtration system designed to
narrow the scope of litigation and thus more clearly
delineate the issues in dispute. These policy considera-
tions were perhaps best summarized in Nettles v. Wain-
wright, 677 F. 2d 404 (Sth Cir. 1982) (en banc) (Unit B)
wherein the fully assembled court unanimously stated:

it is arguable that, when no objections are
filed, the parties have accepted the magis-
trate’s report and have consented to his
recommendations. if a party has objec-
tions, it is essential that he apprise the
district court. Judicial efficiency and the
objectives of the Magistrates Act dictate
that the district judge must be aware of
any objections to the report in order to
properly comply with the duties under
section 636(b)(1)(B).

Furthermore, no undue burden exists in
requiring an attorney or a pro se litigant
to state his objections, if any, to the
district court. We are not asking a litigant
to give up his right to appeal, only to
perfect it. We note that attorneys are
officers of the court and are, therefore, in
some part implicitly responsible for the

by stating their objections is a smal! order.
It is even smalier when weighed against
the consequences to their clients (or
themselves if pro se) of having the circuit
court refuse to entertain their arguments
on appeal based on error in the magis-
trate’s report. We will not sit idly by and
observe the “sandbagging’’ of district
judges when an appeliant fails to object to
@ Magistrate's report in the district court
and then undertakes to raise his objec-
tions for the first time in this court.

Magistrates Act. Petitioner was given an express warning
of the consequences which would attend upon disobedi-
ence of the court's admonition. Given petitioner's
wholly unexplained failure to comply, the court below
clearly had inherent authority to enforce the procedural

requisite.

itt. The Constitution Does Not Demand That

A State Permit Testimony cegarding The
“Battered Wife Syndrome”

“A petition for writ of habeas corpus should be
dismissed if it merely attaches a constitutional label to
factual allegations that do not describe a violation of any
constitutional right.” Engle v. /saac, 456 U.S. at 136
(Stevens J.. concurring). Such is the case with peti-
tioner’s substantive claim. The Due Process Clause
does not serve as a license whereby the federal! judiciary
may substitute its judgment regarding evidentiary rules
upon a state judiciary. Under our system of federalism,
mere evidentiary questions, e.g., the admission of poly-
graph results, are issues solely relegated to the states.
The various jurisdictions are in disagreement as to
whether testimony regarding the “battered wife
syndrome” should be admissible. See, e.g.. Buhrie v.
State, 697 P.2d 1374 (Wyo. 1981); State v. Smith, 247
Ga. 612, 277 S.E. 2d 678 (1981). Such divergence is not,
however, uncommon. The State of Ohio does, in fact,
provide for the admission of expert testimony con-
cerning the unique state of mind of an abused woman in
a self defense context where such testimony is offered by
an examining psychiatrist. See State v. Thomas, 13 Ohio
App. 3d 211, 468 N.E. 2d 763 (1983). That Ohio does
not permit the testimony of a social worker who has
never met with the accused does not violate a federally
secured right and is thus not properly the subject of
habeas corpus petition.

CONCLUSION

For all the aforementioned reasons, the judgment of
the Court of Appeals should be affirmed.

Respectfully submitted,

ANTHONY J. CELEBREZZE_ JR.
Attorney Genera/ of Ohio

RICHARD DAVID DRAKE
Assistant Attorney Genera/
Counsel of Record

State Office Tower

30 East Broad Street, 10th Floor
Columbus, Ohio 43215

(614) 466-2980

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

| hereby certify that the requisite number of copies
of the foregoing Brief for Respondent has been forwarded
to petitioner, Kathy Thomas, through the office of her
counsel, Christopher D. Stanley, Attorney at Law, 902
Rockefeller Building, Cleveland, Ohio, 44113, via the
U.S. mail, the day of June, 1985. | further
certify that all parties required to be served has been
served. Petitioner's address is the Ohio Reformatory for
Women at Marysville, Ohio.

RICHARD DAVID D AKE
Assistant Attorney Genera/

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1258%3A7. Public record. Not legal advice.