PART 52-PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES

Sec.

52.01 Civil proceedings: Special master, pretrial, trial, appeal.

52.02 Criminal proceedings: Pretrial, trial.

§ 52.01 Civil proceedings: Special master, pretrial, trial, appeal.

(a) Sections 636 (b) and (c) of title 28 of the United States Code govern pretrial and case-dispositive civil jurisdiction of magistrate judges, as well as service by magistrate judges as special masters.

(b) It is the policy of the Department of Justice to encourage the use of magistrate judges, as set forth in this paragraph, to assist the district courts in resolving civil disputes. In conformity with this policy, the attorney for the government is encouraged to accede to a referral of an entire civil action for

disposition by a magistrate judge, or to consent to designation of a magistrate judge as special master, if the attorney, with the concurrence of his or her supervisor, determines that such a referral or designation is in the interest of the United States. In making this determination, the attorney shall consider all relevant factors, including

(1) The complexity of the matter, including involvement of significant rights of large numbers of persons;

(2) The relief sought;

(3) The amount in controversy;

(4) The novelty, importance, and nature of the issues raised;

(5) The likelihood that referral to or designation of the magistrate judge will expedite resolution of the litigation;

(6) The experience and qualifications of the magistrate judge; and

(7) The possibility of the magistrate judge's actual or apparent bias or conflict of interest.

(c)(1) In determining whether to consent to having an appeal taken to the district court rather than to the court of appeals, the attorney for the government should consider all relevant factors including—

(i) The amount in controversy;

(ii) The importance of the questions of law involved;

(iii) The desirability of expeditious review of the magistrate judge's judgment.

(2) In making a determination under paragraph (c)(1) of this section the attorney shall, except in those cases in which delegation authority has been exercised under 28 CFR 0.168, consult with the Assistant Attorney General having supervisory authority over the subject matter.

[Order No. 2012–96, 61 FR 8473, Mar. 5, 1996]

§ 52.02 Criminal proceedings: Pretrial, trial.

(a) A judge of the district court, without the parties' consent, may designate a magistrate judge to hear and determine criminal pretrial matters pending before the court, except for two named classes of motions; as to the latter, the magistrate judge may conduct a hearing and recommend a decision to the judge. 28 U.S.C. 636(b)(1) (A), (B).

(b) When specially designated by the court to exercise such jurisdiction, a magistrate judge may try, and impose sentence for, any misdemeanor if he has properly and fully advised the defendant that he has a right to elect "trial, judgment, and sentencing by a judge of the district court and *** may have a right to trial by jury before a district judge or magistrate judge,” and has obtained the defendant's written consent to be tried by the magistrate judge. 18 U.S.C. 3401 (a), (b). The court may order that proceedings be conducted before a district judge rather than a magistrate judge upon its own motion or, for good cause shown upon petition by the attorney for the government. The petition should note "the novelty, importance, or complexity of the case, or other pertinent factors ***". 18 U.S.C. 3401(f).

(1) If the attorney for the government determines that the public interest is better served by trial before a district judge, the attorney may petition the district court for such an order after consulting with the appropriate Assistant Attorney General as provided in paragraph (b)(2) of this section. In making this determination, the attorney shall consider all relevant factors including

(i) The novelty of the case with respect to the facts, the statute being enforced, and the application of the statute to the facts;

(ii) The importance of the case in light of the nature and seriousness of the offense charged;

(iii) The defendant's history of criminal activity, the potential penalty upon conviction, and the purposes to be served by prosecution, including punishment, deterrence, rehabilitation, and incapacitation;

(iv) The factual and legal complexity of the case and the amount and nature of the evidence to be presented;

(v) The desirability of prompt disposition of the case; and

(vi) The experience and qualifications of the magistrate judge, and the possibility of the magistrate judge's actual or apparent bias or conflict of interest.

(2) The attorney for the government shall consult with the Assistant Attorney General having supervisory authority over the subject matter in determining whether to petition for trial before a district judge in a case involving a violation of 2 U.S.C. 192, 441j(a); 18 U.S.C. 210, 211, 242, 245, 594, 597, 599, 600, 601, 1304, 1504, 1508, 1509, 2234, 2235, 2236; or 42 U.S.C. 3631.

(3) In a case in which the government petitions for trial before a district judge, the attorney for the government shall forward a copy of the petition to the Assistant Attorney General having supervisory authority over the subject matter and, if the petition is denied, shall promptly notify the Assistant Attorney General.

(5 U.S.C. 301, 18 U.S.C. 3401(f))

[Order No. 903-80, 45 FR 50564, July 30, 1980, as amended by Order No. 2012-96, 61 FR 8473, Mar. 5, 1996]

Subpart A-General Provisions

$55.1 Definitions.

As used in this part

Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act, 84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400, the Voting Rights Act Amendments of 1982, 96 Stat. 131, and the Voting Rights Language Assistance Act of 1992, Public Law 102-344, 106 Stat. 921, 42 U.S.C. 1973 et seq. Section numbers, such as "section 14(c)(3),” refer to sections of the Act.

Attorney General means the Attorney General of the United States.

Language minorities or language minority group is used, as defined in the Act, to refer to persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)).

Political subdivision is used, as defined in the Act, to refer to "any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." (Section 14(c)(2)). [Order 1246-87, 53 FR 735, Jan. 12, 1988, as amended by Order No. 1752-93, 58 FR 35372, July 1, 1993]

$55.2 Purpose; standards for measuring compliance.

(a) The purpose of this part is to set forth the Attorney General's interpretation of the provisions of the Voting Rights Act which require certain States and political subdivisions to conduct elections in the language of certain "language minority groups" in addition to English.

(b) In the Attorney General's view the objective of the Act's provisions is to enable members of applicable language minority groups to participate effectively in the electoral process. This part establishes two basic standards by which the Attorney General will measure compliance:

(1) That materials and assistance should be provided in a way designed to allow members of applicable language

minority groups to be effectively informed of and participate effectively in voting-connected activities; and

(2) That an affected jurisdiction should take all reasonable steps to achieve that goal.

(c) The determination of what is required for compliance with section 4(f)(4) and section 203(c) is the responsibility of the affected jurisdiction. These guidelines should not be used as a substitute for analysis and decision by the affected jurisdiction.

(d) Jurisdictions covered under section 4(f)(4) of the Act are subject to the preclearance requirements of section 5. See part 51 of this chapter. Such jurisdictions have the burden of establishing to the satisfaction of the Attorney General or to the U.S. District Court for the District of Columbia that changes made in their election laws and procedures in order to comply with the requirements of section 4(f)(4) are not discriminatory under the terms of section 5. However, section 5 expressly provides that the failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the enforcement of the changes.

(e) Jurisdictions covered solely under section 203(c) of the Act are not subject to the preclearance requirements of section 5, nor is there a Federal apparatus available for preclearance of section 203(c) compliance activities. The Attorney General will not preclear jurisdictions' proposals for compliance with section 203(c).

(f) Consideration by the Attorney General of a jurisdiction's compliance with the requirements of section 4(f)(4) occurs in the review pursuant to section 5 of the Act of changes with respect to voting, in the consideration of the need for litigation to enforce the requirements of section 4(f)(4), and in the defense of suits for termination of coverage under section 4(f)(4). Consideration by the Attorney General of a jurisdiction's compliance with the requirements of section 203(c) occurs in the consideration of the need for litigation to enforce the requirements of section 203(c).

(g) In enforcing the Act-through the section 5 preclearance review process, through litigation, and through defense of suits for termination of coverage

Attorney

under section 4(f)(4)—the General will follow the general policies set forth in this part.

(h) This part is not intended to preclude affected jurisdictions from taking additional steps to further the policy of the Act. By virtue of the Supremacy Clause of Art. VI of the Constitution, the provisions of the Act override any inconsistent State law.

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 53 FR 736, Jan. 12, 1988]

$55.3 Statutory requirements.

The Act's requirements concerning the conduct of elections in languages in addition to English are contained in section 4(f)(4) and section 203(c). These sections state that whenever a jurisdiction subject to their terms "provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable language minority group as well as in * * * English.

Subpart B-Nature of Coverage

855.4 Effective date; list of covered jurisdictions.

(a) The minority language provisions of the Voting Rights Act were added by the Voting Rights Act Amendments of 1975.

(1) The requirements of section 4(f)(4) take effect upon publication in the FEDERAL REGISTER of the requisite determinations of the Director of the Census and the Attorney General. Such determinations are not reviewable in any court.

(2) The requirements of section 203(c) take effect upon publication in the FEDERAL REGISTER of the requisite determinations of the Director of the Census. Such determinations are not reviewable in any court.

(b) Jurisdictions determined to be covered under section 4(f)(4) or section 203(c) are listed, together with the language minority group with respect to which coverage was determined, in the appendix to this part. Any additional

determinations of coverage under either section 4(f)(4) or section 203(c) will be published in the FEDERAL REGISTER.

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 53 FR 736, Jan. 12, 1988]

$55.5 Coverage under section 4(f)(4).

(a) Coverage formula. Section 4(f)(4) applies to any State or political subdivision in which

(1) Over five percent of the votingage citizens were, on November 1, 1972, members of a single language minority group,

(2) Registration and election materials were provided only in English on November 1, 1972, and

(3) Fewer than 50 percent of the voting-age citizens were registered to vote or voted in the 1972 Presidential election.

All three conditions must be satisfied before coverage exists under section 4(f)(4). 1

(b) Coverage may be determined with regard to section 4(f)(4) on a statewide or political subdivision basis.

(1) Whenever the determination is made that the bilingual requirements of section 4(f)(4) are applicable to an entire State, these requirements apply to each of the State's political subdivisions as well as to the State. In other words, each political subdivision within a covered State is subject to the same requirements as the State.

(2) Where an entire State is not covered under section 4(f)(4), individual political subdivisions may be covered.

§ 55.6 Coverage under section 203(c).

(a) Coverage formula. There are four ways in which a political subdivision can become subject to section 203(c).2

(1) Political subdivision approach. A political subdivision is covered if—

(i) More than 5 percent of its voting age citizens are members of a single language minority group and are limited-English proficient; and

(ii) The illiteracy rate of such language minority citizens in the political

1Coverage is based on sections 4(b) (third sentence), 4(c), and 4(f)(3).

2 The criteria for coverage are contained in section 203(b).

subdivision is higher than the national illiteracy rate.

(2) State approach. A political subdivision is covered if—

(i) It is located in a state in which more than 5 percent of the voting age citizens are members of a single language minority and are limitedEnglish proficient;

(ii) The illiteracy rate of such language minority citizens in the state is higher than the national illiteracy rate; and

(iii) Five percent or more of the voting age citizens of the political subdivision are members of such language minority group and are limited-English proficient.

(3) Numerical approach. A political subdivision is covered if—

(i) More than 10,000 of its voting age citizens are members of a single language minority group and are limitedEnglish proficient; and

(ii) The illiteracy rate of such language minority citizens in the political subdivision is higher than the national illiteracy rate.

(4) Indian reservation approach. A political subdivision is covered if there is located within its borders all or any part of an Indian reservation—

(i) In which more than 5 percent of the voting age American Indian or Alaska Native citizens are members of a single language minority group and are limited-English proficient; and

(ii) The illiteracy rate of such language minority citizens is higher than the national illiteracy rate.

(b) Definitions. For the purpose of determinations of coverage under section 203(c), limited-English proficient means unable to speak or understand English adequately enough to participate in the electoral process; Indian reservation means any area that is an American Indian or Alaska Native area, as defined by the Census Bureau for the purposes of the 1990 decennial census; and illiteracy means the failure to complete the fifth primary grade.

(c) Determinations. Determinations of coverage under section 203(c) are made with regard to specific language groups of the language minorities listed in section 203(e).

[Order No. 1752-93, 58 FR 35372, July 1, 1993]