The Organization and Functions of the Commissioner System

• Author: Frank P. Sanders
• Date: 01 September 1968
• DOI: 10.1177/106591296802100306
• Published date: 01 September 1968
• Subject Matter: Articles

THE ORGANIZATION AND FUNCTIONS OF THE
COMMISSIONER SYSTEM
FRANK P. SANDERS
University of Maryland
HE
UNITED STATES Commissioner system is an integral, but little
known part of the federal judicial system. The origin of the system goes
back as far as 1793. At that time Congress, acting under its constitutional
power to vest the appointment of inferior offices of the courts in the courts them-
selves,’ authorized the federal circuit courts to appoint &dquo;discreet persons learned in
the law&dquo; to take bail in criminal cases, and for the appearance of persons charged
with crimes.2 This power was expanded in 1842 to give the commissioners of the
circuit courts the powers of the state justices of the peace as to federal offenders.3
3
In 1896 the circuit court commissioners were abolished and the United States
Commissioners Act basically established the office as it exists today.5
APPOINTMENT AND TENURE
By law each district court is authorized to &dquo;appoint United States commis-
sioners in such numbers as it deems advisable.&dquo; In addition, provision is made for
the appointment of United States commissioners for certain national parks.&dquo;
The entire matter of the appointment and location of the United States com-
missioners is discretionary with the district court. The court determines where the
commissioner is to serve, the prime factor being the volume of judicial business.7
Although there are certain residency requirements for national park commis-
sioners,$ there are none for United States commissioners. The vast majority of
commissioners, however, live in or near their jurisdictional areas. A national park
commissioner must reside within the boundaries of the national park for which he
is appointed or at some place reasonably adjacent thereto designated by the Secre-
tary of the Interior with the approval of the court or courts which made the
appointment.
Each United States commissioner is appointed for a term of four years, subject
to reappointment.9 Commissioners are subject to removal by the court appointing
them, although there is no statute providing either causes or procedures for
removal. Removal actions may not, however, be either arbitrary or capricious. to
1
United States Constitution, Article II, section 2.
2
U.S. Statutes at Large, Vol. 1, p. 334 (1793).
3

Ibid., Vol. 5, p. 516 (1842).
4

Ibid., Vol. 29, p. 140, 184 (1896).
5
Excellent treatment of the development of the Office of United States Commissioner will be
found in the decisions in United States v. Allred, 155 U.S. 594; and United States v.
Moresca, 266 Fed. 713 (1920).
8

U.S. Code, Title 28, section 631a.
7
Paul Frederick Helfer, "The United States Commissioner — A Little Known Component of
the Federal Judicial System," Kentucky Law Journal, 52 (Winter 1964), 386.
8

U.S. Code, Title 28, section 635.
9

Ibid., section 631c.
10

In re Eaves, 30 Fed. 21.
420

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421
Removal proceedings are usually started by rule to show cause on a motion of a
United States attorney. The commissioner is allowed to defend himself and every
presumption of innocence, as in a criminal case, exists in favor of the accused
commissioner.&dquo;
There is no mandatory requirement for the appointment of commissioners
nor is it required that a commissioner be continued in office or replaced at the end
of his term. If the commissionership should fall vacant at any time the district
court may refrain from appointing a successor. A district court could deem it
advisable to appoint no commissioners, thus abolishing the office by local court
rule. This was actually done by the United States District Court for the Eastern
District of Michigan in 1946. 12 Today there are, however, four commissioners
appointed in this district.
The number of commissioners in office on June 30, 1965, was ’713, an increase
of 7 over the total a year earlier.13 There was at least one commissioner in each
United States Judicial District.
QUALIFICATION
There are no specific affirmative qualifications necessary for appointment as a
United States commissioner. The law simply provides that each district court
&dquo;shall appoint United States commissioners in such numbers as it deems advis-
able.&dquo; -14 The courts are, however, prohibited from appointing a person holding any
military or civil office or employment under the United States government or one
who is employed by any justice or judge of the United States.15 This prohibition
does not apply to a part-time referee in bankruptcy or to a clerk or deputy clerk of
a court of the United States whose appointment as a commissioner is approved by
the Director of the Administrative Office of the United States Courts.16 A
judge is
also prohibited from appointing as commissioner one who is related to him by
affinity or consanguinity within the degree of first cousin .17 A person is also pro-
hibited from holding the offices for two judicial districts at the same time. IS Where
a national park extends into two or more judicial districts, however, the appoint-
ment of the commissioner shall be made by the joint action of the district courts of
such districts.19
Despite the judicial nature of the office and the initial provision for appoint-
ment of persons &dquo;learned in the law&dquo; there is no specific requirement that the
person so appointed be a member of the bar or even have a legal background or
11
Norman J. Griffin, "United States Commissioners," Journal of the American Judicature
Society, 29 (August 1945), 58-59.
12
Arthur F. Lederle, "Abolish Unnecessary Court Appendages to Improve the Administration
of Justice," Journal of American Judicature Society, 36 (December 1952), 102.
13
Annual report of the Director of the Administrative Office of the United States Court for
fiscal year 1965.
14

U.S. Code, Title 28, section 631a.
15

Ibid., section 631b.
16

Ibid.
17

Anstill v. U.S., 58 Court of Claims 232, as quoted in Mills’ United States Commissioners’
Manual (Bush).
18
7 Comp. 230 as quoted in Mills’ United States Commissioners’ Manual (Bush).
19

U.S. Code, Title 28, section 631a.

---

422
education. Actually, the practice has been to appoint lawyers as commissioners
where possible .20 As of June 30, 1965, there were 713 United States commissioners
in office, of whom 28 reported they had no other occupation. Of the remaining
685 commissioners, 493 were practicing attorneys. In addition there were 69 clerks
or deputy clerks of the United States district court, four referees in bankruptcy and
three court reporters. 21 It can be assumed that these latter groups were either
lawyers or at least knowledgeable in judicial proceedings. The remaining 116
commissioners had a variety of miscellaneous occupations.
DUTIES
The Manual for United States Commissioners, prepared by a Committee of
the Judicial Conference in 1943 and revised by the Director of the Administrative
Office of the United States Courts, describes the commissioner as &dquo;a subordinate
magistrate who has certain independent judicial functions.&dquo; He is not a judge 22
nor is there any such thing as a &dquo;United States Commissioners’ Court.&dquo; 23 Various
court decisions do, however, refer to the office as &dquo;quasi-judicial&dquo; 24 and to the
proceedings as &dquo;quasi-judicial in nature.&dquo; 25 An evaluation of the position of the
commissioner in the federal judicial system leaves little doubt that he is, in effect,
performing judicial duties and possesses considerable independent judicial power. 26
In effect, United States commissioners are primarily committing magistrates
for federal courts. As such, they perform a variety of miscellaneous services, gen-
erally connected with the institution of criminal proceedings. United States com-
missioners have a responsibility for the issuance of both arrest2’ and search war-
rants .211 The commissioner is responsible for conducting preliminary examinations
to determine if persons arrested for federal crimes and brought before him should
be held for district court proceedings.29 He is authorized to set bail for persons
arrested for the commission of a non-capital federal crime.3° The importance of this
function has been recognized by the U.S. Supreme Court which termed its exer-
cise &dquo;a serious exercise of judicial discretion.&dquo;&dquo;
In addition to appointing United States commissioners, the district court may
confer jurisdiction on the commissioner to try and sentence persons who commit
petty federal offenses on federal reservations within the judicial district.32 All
national park commissioners possess such power by statute 33 and this jurisdiction is
20
Helfer, op cit.
21
Annual Report of the Director of the Administrative Office of the United States Courts for
fiscal year 1965.
22

Gray v. U.S., 9 Fed. 2d, 337, 338 (9th Circuit 1926).
23

Swanson v. U.S., 224 Fed. 2d, 795, 797 (5th Circuit 1955).
24

U.S. v. Zerbst, 111 Fed. Supp. 807, 810 (East District, S. C., 1953).
25

Kreeman v. U.S., 160 Fed. 2d, 69, 70 (9th Circuit, 1946).
26
Helfer, op. cit.
27
Federal Rules of Criminal Procedure. Rules 3, 4(a).
28

Ibid., Rule 41 (a), (c).
29

Ibid., Rule 5.
30

Ibid., Rule 46(a), (1) ; U.S. Code, Title 28, section 637.
31

Stack v. Boyle, 342 U.S. 1,4,11 (1951).
32

U.S. Code, Title 18, section 340 (a).
33
Ibid., Title 28, section 632.

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423
presently conferred upon over 80 per cent of the commissioners by the appropriate
district courts. In 1964 Congress authorized commissioners to try and sentence any
persons violating rules and regulations...