Shadow Judges: Uncovering Judicial Power Delegation in the District Courts

Abstract

Prisoners bring over twenty percent of the civil cases filed in federal district courts. This litigation implicates civil rights and habeas corpus. Prisoners’ civil litigation can protect individual liberties and even require that an incarcerated person be set free. Because most prisoners (around 93%) proceed pro se in their federal civil litigation, they are already at a disadvantage. In addition to being unrepresented, prisoner plaintiffs suffer in other ways. Local rules, general orders, and even district courts’ job postings suggest that when a case is brought by a pro se prisoner, judicial tasks that must be preformed in the case, from administration to adjudication, are delegated to non-judicial pro se staff. As a result, an incarcerated plaintiff’s case, brought in the same district court as a non-incarcerated plaintiff’s, may be decided by a court employee who works as part of the court’s “pro se staff,” while a non-incarcerated plaintiff’s case will be decided by a magistrate or district court judge. The Supreme Court’s recent Wellness International decision drew attention to delegation of Article III claims to non-Article III judges in the bankruptcy realm. There, the Court rigorously weighed the impact of the structural error caused by delegation to judges who do not enjoy fixed salaries or life tenure. But delegation of the judicial power in the prisoner litigation context is still hiding in plain sight. This article is the first to consider the scope of the delegation to pro se staff, and the separation of powers concerns caused by delegation of the judicial power to pro se staff. It argues that local procedure has enabled the delegation, and that it has gone too far. Local procedure crafts rules for prisoner litigation that conflict with federal law. When federal courts overreach in this manner, their rulemaking exceeds the limited rulemaking authority Congress has delegated to the judiciary. Moreover, the local procedure violates federal policy, which generally disfavors allowing non-judicial actors to perform judicial tasks. The article concludes with recommendations about how to solve the delegation problem. The local procedure and the pro se staff it creates could be eliminated. Congress alone would be left with the responsibility to create additional procedure for prisoner litigation, or to refrain from doing so. A more moderate approach would publicize the identity of pro se staff as well as the nature of the work the staff undertakes. At a minimum, pro se staff should be brought out of the shadows.