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After months of research and preparation, Texas Deputy Solicitor General Lisa Eskow will stand before the U.S. Supreme Court on Wednesday to argue that what she terms a “procedural gotcha” should not entitle a state prison inmate to a second trial in his federal civil rights suit against prison medical professionals. It will be Eskow’s first time to argue before the Supreme Court, although she has been a second chair in high court cases in which the state filed amicus briefs. It also will mark the first Supreme Court argument under the administration of Texas Attorney General Greg Abbott, who will sit at the counsel table with Eskow when she appears before the Court. Eskow petitioned the high court last summer to hear Roell, et al. v. Withrow to settle a conflict in the federal circuits on the validity of a party’s post-judgment consent to a trial before a U.S. magistrate judge. In its April 2002 decision in Withrow, the 5th U.S. Circuit Court of Appeals rejected post-judgment consent and held that consent must be given in writing before a trial. That ruling clashes with the views of the 7th and 11th Circuits, which allow post-judgment consent, the state’s brief said. The 5th Circuit’s position is also more rigid than the approach taken by the 9th Circuit, which gave credence to post-judgment written consent in certain limited circumstances in its 2001 decision in Kofed v. International Brotherhood of Electrical Workers, Local 48, the state said in the brief. The question posed in Withrow, Eskow says, is this: What kind of consent is required for a magistrate judge to have authority to act in a case? “Does someone have to go on the record and say the magic words, ‘I consent?’” Eskow asks. Jon Michael Withrow argued in his brief to the Supreme Court that a 1979 amendment to the Federal Magistrates Act requires all parties to consent before a magistrate judge may preside at a trial and enter a judgment. Withrow also argued in the brief that Federal Rule of Civil Procedure 73(b) requires that parties file consent forms within the period required by local rule. The local rules of the U.S. District Court for the Southern District of Texas, in Corpus Christi, where Withrow’s suit was tried, require all parties to file written consent before a magistrate judge can exercise authority in a case under the act, Withrow contended. “I don’t understand why they [the defendants] think that rule isn’t binding on them,” says Amanda Frost, who represents Withrow in the appeal. The state argued in its reply brief that intent can be inferred by a party’s litigation conduct. The defendants in Withrow inferred their consent when they filed a summary judgment motion and accepted the magistrate’s denial of that motion, the brief said. Frost, a staff attorney with the Public Citizen Litigation Group in Washington, D.C., says the state’s argument that parties can infer consent by participating gets into the morass of trying to figure out what the parties were thinking. “My rule is a clear, bright-line rule that I think Congress would have wanted,” she says. Public Citizen, a public interest organization, provides assistance to people who don’t have lawyers when their cases are before the Supreme Court, Frost says. According to his brief filed with the Supreme Court, Withrow sued Texas Department of Criminal Justice medical personnel in 1997, alleging that they were deliberately indifferent to his medical needs when he broke his ankle after falling out of his prison bunk two years earlier. “Withrow was taken to the prison infirmary, where he was given pain medication and a bandage,” the brief said. Withrow alleged in his brief that he had to walk around the prison on the injured ankle for three days before doctors ordered X-rays on it and that, despite undergoing surgery, he never has regained full use of the ankle. The state’s brief said U.S. District Judge Hayden Head of Corpus Christi, Texas, referred Withrow’s case to U.S. Magistrate Judge Janice Ellington. The inmate represented himself in the 1998 trial before Ellington, and the jury returned a verdict in favor of the defendants, the brief said. Withrow never raised consent as an issue until after the 5th Circuit questioned whether all parties had consented to having a magistrate judge preside over the proceedings, the state said in its brief. “I think it’s a trick,” says Greg Coleman, a former state solicitor general who heads the Austin, Texas, office of Weil, Gotshal & Manges. “A guy can go in, try his case, lose it and pull out his do-it-over pass, saying, ‘You didn’t consent.’” If the Supreme Court buys that argument, people either are going to be more careful when they give consent in cases being heard by magistrate judges or they’re going to decline to have magistrate judges handle their cases, Coleman says. Eskow says Congress authorized magistrate judges to conduct civil trials to help federal courts and parties in suits develop a more expedient and efficient way of handling cases. But it’s not efficient, she says, if cases have to be retried because mistakes are made and parties do not give pre-trial consent to having magistrate judges handle matters. After Withrow appealed the judgment, the 5th Circuit raised the consent issue and remanded the case to Head, who referred the matter to Ellington, the state said in the brief. In its brief, the state said two defendants — Dr. Joseph Roell and Petra Garibay, a licensed vocational nurse — consented to having the suit heard by a magistrate judge after the case was remanded. Roell, Garibay and Dr. James Reagan filed written consent in the district court expressly stating their consent to all the prior proceedings before Ellington, the state’s brief said. Only Reagan and Withrow consented prior to the trial, according to the brief. Ellington concluded that the belated consent by Roell and Garibay failed to meet the requirements of the Federal Magistrates Act of 1979, codified at 28 U.S.C. �636(c). Head adopted the magistrate judge’s report over the defendants’ objections. In his brief to the Supreme Court, Withrow alleged he was “completely unaware” that Garibay and Roell had not consented until the 5th Circuit notified him of that fact and expressed concern that “the defendants had engaged in gamesmanship.” Withrow alleged in the brief that the defendants delayed their consent so that, if they lost at trial, a claim that Ellington lacked jurisdiction could be raised. “We very much saw it as creating a heads I win, tails you lose proposition,” says Frost. This is not a case in which the defendants strategically engineered a referral defect in the hopes of hedging their bets on the jury verdict, the state said in its reply brief. Pre-trial consent was not given because of a series of mistakes, the brief said. A three-judge panel of the 5th Circuit sided with the inmate and vacated the judgment in Withrow, remanding the case to the federal court in Corpus Christi for a new trial. Requiring pretrial consent removes the potential for abuse, Judge Rhesa Hawkins Barksdale wrote for the unanimous panel, which included Judges E. Grady Jolly Jr. and Edith Jones. The state argued in its brief to the Supreme Court that the Magistrates Act specifies the need for parties to consent voluntarily to having a case heard by a magistrate judge but that Congress did not require consent to be given in a particular form. In its brief, the state also alleged that the 5th Circuit erroneously rested its decision rejecting post-judgment confirmatory consent on a misconception that � 636(c) consent is a jurisdictional issue. The state argued that statutory consent requirements implicate only the authority of the magistrate judge, not the subject-matter jurisdiction of the district court. Any defect in a � 636(c) referral is not a jurisdictional error that required the 5th Circuit to initiate an investigation on it own and to unnecessarily overturn jury verdicts and final judgments when no party to a proceeding has protested, the state contended. Eskow says if the 5th Circuit’s decision stands, cases in which a party failed to give consent prior to a trial will have to start all over. “It hits you that it’s just common sense there’s something wrong with that result,” she says. Prior to joining the OAG staff in May 2002, Eskow was an associate with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel in Austin. To prepare for arguments, the 37-year-old Eskow, a 1996 graduate of Stanford Law School, participated in two in-house moot arguments at the Texas Office of the Attorney General and a Feb. 20 moot argument at the Baylor University School of Law, with law professors serving as the justices. Eskow says the National Association of Attorneys General scheduled another moot argument on Monday in Washington, D.C., to help her prepare for her appearance before the Supreme Court. NAAG typically offers to set up moot arguments when lawyers from offices of state attorneys general argue before the court, she says. Her argument is evolving as she goes through the trial runs and hears the questions asked and responses given by the lawyers acting as justices, Eskow says. Says Eskow, “What you’re looking to do is engage the Court in an interactive discussion more than making a speech.”

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