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Magistrate Judges Are Effective, Flexible Judiciary Resource Judge Dennis Cavanaugh has chaired the Judicial Conference Committee on the Administration of the Magistrate Judges System since 2006. He was a U.S. magistrate judge for the District of New Jersey from 1993 to 2000, when he was appointed to the federal bench as a U.S. district judge in the District of New Jersey.


The Federal Magistrates Act celebrates its 40th anniversary this month. What did the Act accomplish?


The Federal Magistrates Act was enacted in 1968 to replace the United States commissioner system, which had been in place for about 175 years. Commissioners had been used in the courts to try petty See Interview on page 7


Newsletter of the Federal Courts

Vol. 40 Number 10 October 2008

Appropriations On Hold Until March 2009 Congress passed and the President has signed a Continuing Resolution (CR) to keep government funded and running through March 6, 2009. Congress did not finish work on the majority of appropriations bills before the fiscal year ended on September 30, 2008. The CR will fund agencies, including the Judiciary, at FY 2008 levels until March. Congress intends to work with the new Administration beginning in January to complete action on remaining appropriations bills as quickly as possible.

President Signs Bill Creating New Federal Rule of Evidence For years, attorneys had to spend countless hours reviewing millions of pages of documents in order to prevent an “attorney-client privileged� document from being accidentally released, driving up litigation costs for time spent on this exhaustive privilege review. The passage of S. 2450 by Congress changes that. The President signed the bill into law on September 19, 2008. Pub. L. No. 110-322 creates a new Federal Rule of Evidence, Rule 502, regarding disclosure of privileged or protected material, that limits waivers of the attorney-client privi-

lege and work-product protection to facilitate discovery and reduce its costs. According to Judge Lee H. Rosenthal (S.D. Tex.), chair of the Judicial Conference Committee on See Rule 502 on page 4

Calls for Help Answered by Visiting Judges ............................................................................................... pg. 2 Judiciary Improvements Bill Passes . ............................................................................................................. pg. 4 DSS Opens Data Warehouse ........................................................................................................................... pg. 5

Calls for Help Answered by Visiting Judges Sitting in his chambers in Anchorage, Alaska, Senior District Judge James K. Singleton has disposed of over 40 habeas corpus cases in the last six months—in the Northern District of New York. These are all time-consuming cases that may take over a week to review. “He has helped turn the tide for us,” said a grateful Clerk of Court Larry Baerman in the Northern District of New York, whose district is one of the most congested in the federal court system. Help also has come from Senior Judge Lyle E. Strom in the District of Nebraska who has done “a fantastic job,” according to Baerman, handling prisoner civil rights cases for the district. Strom and Singleton are visiting judges, two of over 60 court of appeals and district court judges who, so far this calendar year, have answered a request from a court for assistance in handling cases. “Sometimes districts need a judge to come in for reasons of conflict of interest—in which all judges in a given district or circuit are disqualified—or a natural emergency or a catastrophe, to help handle a temporary caseload increase, or clear backlogged cases. We can help one another,” said Judge J. Frederick Motz (D. Md.), chair of the Conference Committee on Intercircuit Assignments. “We have resources available in the federal courts with our senior and other judges who are willing to take intercircuit assignments. We owe it to the public to make the most effective use of those resources.” Last fiscal year, visiting judges taking intercircuit and intracircuit assignments in district courts terminated 8,172 civil cases and 603 crim-

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inal cases, and completed 167 trials. In the courts of appeals, visiting judges participated in disposing of 5,171 appeals. “I think the budget last year was about $1 million for all the visiting judge intercircuit and intracircuit assignments that were made,” said Motz, “which is really quite modest considering the work that was done.” Authority for the temporary assignment of federal judges to courts in other circuits or to special courts is vested in the Chief Justice. The intercircuit assignment process is initiated when the chief judge of the borrowing circuit submits a Certificate of Necessity to the Conference Committee on Intercircuit Assignments. A Consent to Assignment form is also submitted to the committee from the lending court. Upon receipt of both forms, the committee submits the request to the Chief Justice for his approval. In June 2008, the Committee on Intercircuit Assignments formalized policy on several existing practices. “The use of newly appointed judges for intercircuit assignments is discouraged,” said Motz, “particularly judges who have been appointed less than five years. The obvious reason for this is that when

a new judge comes on board he or she needs to learn the ropes at the court to which he or she was appointed.” There are exceptions to that rule. For example, a newly appointed judge who had been a U.S. Attorney was disqualified for a period of time from handling criminal cases in his own district. He volunteered to take an intercircuit assignment so he could take criminal cases in another district. The second change, formalized an existing practice that encourages senior judges to be considered first for intercircuit assignments rather than active judges. “Senior judges are a resource, which is particularly valuable to the districts in which they sit. But to the extent that they’re willing to do so, they are a national resource,” said Motz. Senior judges may consent to their own assignments, while active judges require the approval of their chief circuit judge. Senior or active, the committee is primarily interested in finding the right fit between the need of a particular court, and a judge who is available to go to that district. “In some instances, such as the border courts, obviously there’s a

need for judges to come and handle the overwhelming criminal docket, particularly immigration cases. If a judge isn’t interested in doing that, then he or she should take another intercircuit assignment.” Assignments to a court can be for a set period of time, with a variety of cases, or for an individual proceeding. But a visiting judge may not even need to leave his or her district or circuit to take cases. “In this day and age of improved technology, it is not necessary at all to go to the court,” said Motz. “With CM/ECF, we can access one another’s dockets quite easily and hearings can be held by teleconference or videoconference.” Judges have used courtroom video equipment to hold civil trials remotely, while, more commonly, a judge will use written orders, video conferences, or the assistance

of a magistrate judge to dispose of pretrial matters. Remote access also allows assigned judges to save time and money by limiting travel to short, impact visits, such as a “sentencing week,” or to hear stacked trials. Courts that have requested new judgeships may sometimes be reluctant to either lend judges or borrow judges in the belief that this may impair their chances of adding a new judgeship. “That is simply not the case,” said Motz. “Indeed, I know it’s the reverse. In addition to the statistical data used by the Committee on Judicial Resources (JRC) concerning new judgeships, the JRC considers whether the court requesting additional judgeships has used visiting judges.” The committee maintains a roster of judges willing to take intercircuit assignments. To supplement the current roster, judges will be

asked within the next few weeks to complete a new on-line profile with information on the kinds of cases that they might be interested in taking, and the period of time they might be willing to devote. This information will improve the roster’s usefulness to the committee and to courts. “This is an excellent program for everyone—for judges and for courts that either have a temporary crisis or a long-established need that hasn’t been fulfilled by a new judgeship,” said Motz. “Judges are available to help. Our committee is ready to assist. And courts shouldn’t be at all reluctant to call upon us to help them. For judges who would like to take an intercircuit assignment, it’s a great service to the courts that need their services. And it’s another horizon for judges to explore if they’re interested.”

Three AO Employees Honored for Exemplary Service Judge Roger L. Gregory (4th Cir.) (center) chair of the Judicial Conference Committee on the Administrative Office and AO Director James C. Duff (second from left) honored three AO employees, Stanley Sargol (photo left), Richard Seidel (second from right) and Ron Kendall (photo right) as recipients of the 2008 Administrative Office Exemplary Service Awards. Sargol created a staffing-predictor spreadsheet that provides important budget forecasting information and guidance to the courts; Seidel developed the emergency notification system (ENS) which securely stores emergency contact information, manages phone tree hierarchies, and provides an automatic system for notifying court employees; Ron Kendall successfully led the Circuit Rent Budget Working Group and was instrumental in negotiating a memorandum of understanding with GSA for a fair system of rental rate determinations. AO senior staff, judges, and court unit executives nominate recipients for the awards given for noteworthy achievements in supporting the federal courts.

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Rule 502 continued from page 1 Rules of Practice and Procedure, this is the first rule of evidence relating to privilege that Congress has enacted in the 30 years since the Rules Enabling Act was passed. For over a year, Rosenthal has sought passage of this legislation, working closely with Professor Daniel Capra, Evidence Rules Committee reporter and primary drafter of Rule 502. Rosenthal also noted the contributions of the AO’s Office of Legislative Affairs and Rules Support Office with whose help, “we were able to carry out the request of the Judicial Conference and achieve this important result.” Chair of the Senate Judiciary Committee, Senator Patrick Leahy (D-VT), introduced S. 2450 in the Senate with co-sponsor and ranking Judiciary Committee member Senator Arlen Specter (R-PA). In the House, Judiciary Committee Chair John Conyers Jr. (D-MI) with Representative Howard L. Berman (D-CA) and the Committee’s ranking member, Lamar Smith (R-TX), played key roles in passing the legislation. The bill, according to Leahy, had the support of the legal community. “It responds to the widespread complaint,” he said, “that litigation costs necessary to protect against

waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject-matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery.” Representative Sheila Jackson-Lee (D-TX), who introduced a similar bill in the House, focused on the impact of electronically stored documents and noted that “when vast amounts of documents are transmitted and stored electronically and can be searched and collected in the same manner, it is all too easy for a document containing privileged information to be overlooked, despite careful efforts to prevent it. Jackson-Lee said that both plaintiff and defense lawyers had indicated that S. 2450 will in fact “enhance their ability to represent their clients and to ensure that they may have the broadest based discovery possible.” After advising Congress about the problem, the Judicial Conference and its Rules Committees were asked by the House Judiciary Committee to consider amending the rules to limit privilege waiver. Rule 502 was submitted to Congress in 2007 after careful deliberation by the Conference Advisory Committee

Bill Passes with Judiciary’s Requested Improvements

changing times and circumstances, the Judiciary needs improvements to increase its efficiency and administrative operations,” said Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee. “With passage of this bill, the Senate has taken an important step to ensure that the federal Judiciary has the tools to keep up with the changes and challenges of the 21st century.” The bill contains five different provisions relating to jurors and juror service. It provides that:

The Judicial Administration and Technical Amendments Act of 2008—a bill that contains 18 court improvements endorsed by the Judicial Conference—has passed both Houses of Congress and was signed October 13 by the President as Pub. L. No. 110-406. “Our independent Judiciary is the envy of the world. Yet in these The Third Branch


October 2008

• a juror is eligible to receive a $10 supplemental fee after ten days

on Evidence Rules and study of the issue by the Committee on Rules of Practice and Procedure. “The Rules Committees studied the problem and concluded that the need for exhaustive preproduction privilege reviews could be significantly reduced if the risks of waiver were clarified and limited,” said Rosenthal. “New Evidence Rule 502 provides a consistent and predictable standard for determining the consequences of inadvertently disclosing privileged material, less onerous than under current law in some jurisdictions. While courts can, under present law, enter orders providing that disclosing privileged documents in discovery won’t waive the privilege, such orders are only enforceable as to the parties. Most importantly, such orders would be enforceable under Rule 502 as to third parties in any subsequent federal or state proceedings. The Rule’s added protections will help reduce the need for exhaustive, costly, and time-consuming preproduction review.” Unlike other rule changes, Congress had to affirmatively enact Rule 502 by legislation because the rule affects privilege. Congress passed Rule 502 in the exact form proposed by the Judicial Conference.

of service or a trial, rather than the previous requirement of 30 days; • a district court has the discretion to decide whether to bring into court those individuals who fail to respond to a jury summons, instead of having their appearance mandated by statute; • the maximum fine is increased for failure to respond to a jury duty summons and for lying on a questionnaire to avoid jury See Bill Passes on page 12

DSS Opens Data Warehouse The Judiciary’s new Decision Support System (DSS) puts a resultsbased, data-driven system at the fingertips of probation and pretrial services officers. It gives them access to a veritable warehouse of data with an array of tools to easily analyze and report the information in a way that improves decision making. The DSS project consolidates the information from the Probation/Pretrial Services Automated Case Tracking System (PACTS), used by all 94 districts, into the National PACTS Reporting Database. The NPR database produces all the nationally published statistical reports and operational workload statistics for probation and pretrial services offices. “Previously only portions of each district’s PACTS data were sent to the AO,” said Matt Rowland, who heads up DSS development at the AO. “It was a challenge to consolidate and report that data in a way that was useful to decision makers. With DSS, we bring in every single record from PACTS. That means we have millions of additional data elements and with new reporting technologies, we can slice and dice the data very easily. Plus, all the districts can see the data. They don’t have to wait for the AO to run reports. It’s there, on demand, whenever they want it.” Logging into Version I of DSS, users can view dashboards on clinical services, post-conviction supervision, pre-sentence reports, pretrial services, and workload. Dashboard is a term used for the Web-based display of data. Like a car’s dashboard, it shows how the machine is performing. For example, a probation officer may want to see the average Risk Prediction Index (RPI) score for offenders over a period of time, or the average cost of treat-

ment per offender. A few clicks of the mouse and the information is displayed in interactive graphs or tables. Data can also be filtered over time by race, offender’s criminal history score, by volume of work, and many other factors. Eventually, DSS will have mapping capabilities. A probation officer seeing a rise in, for example, methamphetamine cases, could look at the statistics for neighboring districts to see if have have experienced a similar increase. Whatever the information, it is available for all the districts to see. “DSS gives me the ability in a click to take the pulse of my district,” said Kathryn Jarvis, deputy chief probation officer in the Western District of Kentucky. “It tells me where my numbers are compared to the last quarter or the last fiscal year. I can compare where we stand in our circuit in terms of detention rates or cases received or anything like that.” “Our goal is to use DSS to look at trends and patterns and to see if what we’re doing is working,” said Barb Feril, deputy chief probation officer in the Eastern District of Michigan. “We can see what the average cost per client is per treatment and per quarter. Are we getting what we pay for when we compare

our results to other districts? Are we in line with them? How do our revocation rates compare within our circuit and nationally? I may want to look at the RPI, and the criminal history scores, and see if the treatment and types of supervision we select are making a difference.” Because Feril’s office is considering restructuring, they will also use DSS to see how positions are used in districts with similar workloads. Jarvis also plans to use DSS to identify districts that seem similar to the Western District of Kentucky in workload. “I can network with them, find out what they’re doing and how they’re addressing certain issues and workload,” she said. Feril’s and Jarvis’ districts are following a national trend to become results-driven. That was the recommendation of a 2004 study by the Urban Institute and IBM. The study recommended the development of an infrastructure and management approach focused on collecting, analyzing, and acting on outcome data. Key to this approach was a comprehensive outcome measurement framework. DSS delivers that framework. See DSS on page 6

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DSS continued from page 5 In addition to the dashboards, information is available in DSS in detailed standardized reports, and in ad hoc reports that allow users to drag and drop factors from different sources. “DSS’ strength” said Rowland “is in its ability to quickly show trends across multiple years, or at the national, circuit, district, and divisional office levels. If you are aware of the trends, you can make more informed decisions.” Jarvis noted that courts have always had their local PACTS reports to address operational, day-to-day requirements, but there also was a need to see the information from a higher organizational perspective. “Now,” she said, “DSS will help me in strategic planning, in looking at trends, and in staying proactive. It provides the larger picture. It’s a really powerful tool and I’m excited about using it.” Rowland and his colleagues at the AO are already looking at additional databases to enrich DSS. “Census information, the FBI’s reported re-arrest data and Bureau of Prison releases, all would enrich the DSS database, showing relationships between data,” said Rowland. “For decades, probation officers envisioned this kind of data mining,” he said, “but they didn’t have the technology. Now we do, and we have been able to take advantage of it thanks to the help of a number of people here at the AO, including those at the Systems Deployment and Support Division testing, training and support offices, many former and existing members of the Chief Probation and Pretrial Services Officers Advisory Group, the DSS Working Group, and the Judicial Conference Criminal Law Committee. So many things had to fall into place to make DSS happen, and it’s only going to get better.”

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Two Judges’ Service Mirrors 40-Year History of Federal Magistrate Judges System U.S. Magistrate Judge Peter Palermo in the Southern District of Florida remembers attending a 1971 orientation in Washington, D.C., at which Chief Justice Warren Burger entered the room and greeted a group of newly minted magistrates (their title back then) with “Good morning your honors.”

“I still enjoy the work,” Komives, 76, said. Palermo, 90, added, “It was a challenge, and remains a challenge. . . . The job has matured and evolved into something beyond our fondest dreams.” Both judges have served on recall for many years. Komives, who had served as an assistant U.S. attorney handling organized crime prosecutions, was familiar with the criminal case proceedings he initially was assigned—issuing warrants and presiding over arraignments and pretrial conferences. “It was a full schedule very early on,” he said.

U.S. Magistrate Judge Peter Palermo (S.D. Fla.)

“It was quite a thrill,” Palermo recalled. “He told us that the federal magistrate system could be the greatest innovation in the history of the federal court system— it all depended on us. He said, ‘We don’t know what your jurisdiction is. Keep going ‘til we tell you to stop.’” The Federal Magistrate Act of 1968, enacted 40 years ago this month, created U.S. magistrates as a new corps of judicial officers in the district courts, replacing the 175-yearold U.S. commissioners system. After a pilot project, the first magistrates began getting sworn in early in 1971. The act has been amended several times since, to confer greater authority and to change the office’s title to magistrate judge. Palermo and U.S. Magistrate Judge Paul Komives in the Eastern District of Michigan, who also took his oath of office in early 1971, have an intimate knowledge of the magistrate judges system. Both have served on the bench for its entire history.

U.S. Magistrate Judge Paul Komives (E.D. Mich.)

He eventually became active in the Federal Magistrate Judges Association (originally called the National Council of U.S. Commissioners and then the National Council of U.S. Magistrates), serving as its president for a year. Komives was also the first magistrate judge to serve as a member of a Judicial Conference committee, appointed by Burger in 1980 to the Committee on the Administration of the Magistrate Judges System. Palermo chuckles as he remembers the system’s modest beginning. “I had one desk, one chair, one secretary, and one courtroom deputy,” he said, adding that his initial annual salary was to have been $30,000 but turned out being $22,500.

I N T E R V I E W continued from page 1 offenses and conduct preliminary proceedings in criminal cases. The Act created a new judicial officer who could not only do the work of the commissioners, but also perform many other duties, helping the district courts cope with growing caseloads. And from the earliest years in office, the new judicial officers—magistrates, as they were called then—were recognized as valuable resources in civil as well as criminal cases.

Distribution of Magistrate Judge Positions 1971 - 2008 600






What is the role of magistrate judges today in the federal court system? How has it changed in 40 years?




The role of magistrate judges has evolved in a number of ways. First of all, Congress has acted repeatedly to enhance the authority of magistrate judges, to clarify their judicial status, and to improve the system’s overall effectiveness. In response to early challenges to the authority of magistrate judges to handle various types of proceedings, Congress amended the 1968 Act a number of times: in 1976 to explicitly authorize magistrate judges to conduct evidentiary hearings, and then in 1979, to expressly authorize them to enter final orders disposing of civil cases with the consent of the parties. Also, limited contempt authority was authorized in 2000. In addition to the direct effect of legislation specifically enhancing and clarifying the scope of magistrate judges’ authority, the federal courts have responded to the overall




Full-Time Magistrate Judge Positions





Part-Time Magistrate Judge Positions

growth in caseload by using magistrate judges to meet the particular demands of their changing caseloads. For example, in recent years many courts have assigned an increasing number of felony guilty plea proceedings to magistrate judges. Congress also has acted to improve the salary and retirement benefits of magistrate judges and to promote the recruitment and appointment of highly qualified individuals. In 1990, Congress changed the title from magistrate to United States magistrate judge, making it clear that these are judicial officers to be addressed as judge or magistrate judge. Magistrate judges are adjuncts to the Article III district judges. Fulltime magistrate judges serve an eight-year term and they may be reappointed for successive terms.



Combination of Clerk/Magistrate Judge Positions

They are appointed by the district judges in each district.


District courts utilize their magistrate judges in different ways. Why is that?


Probably one of the most significant aspects of the system is its flexibility. Congress granted broad statutory authority to magistrate judges, but it gave the district courts wide latitude as to their utilization to address local needs and conditions. District courts utilize magistrate judges differently for many reasons, including the varying caseload demands and the mixes of cases, differences in court culture, different views on the most effective role of magistrate judges, and See Interview on page 9

Time Line in the Evolution of the Magistrate Judges System


The Federal Magistrates Act (the Act) is signed into law by President Lyndon Baines Johnson on October 17.


Judicial Conference authorizes 83 full1970 The time magistrate positions, 450 part-time

The Judicial Conference establishes the magistrates system in five pilot districts: District of Columbia, New Jersey, Virginia Eastern, California Southern, and Kansas.

magistrate positions and 13 combination clerk-magistrate or referee in bankruptcymagistrate positions to replace over 700 commissioners.


By July 1, the magistrates system is fully operational, replacing the commissioner system in all district courts. The Third Branch


October 2008




Appointed: Helene N. White, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Sixth Circuit, August 12.

Senior Status: U.S. Court of Appeals Judge Kenneth F. Ripple, U.S. Court of Appeals for the Seventh Circuit, September 1.

Appointed: Paul G. Gardephe, as U.S. District Judge, U.S. District Court for the Southern District of New York, August 8.

Retired: U.S. Bankruptcy Judge David N. Naugle, U.S. Bankruptcy Court for the Central District of California, September 1.

Appointed: Stephen Joseph Murphy, III, as U.S. District Judge, U.S. District Court for the Eastern District of Michigan, August 18.

Retired: U.S. Magistrate Judge John W. Black, U.S. District Court for the Southern District of Texas, September 18.

Appointed: Cathy Seibel, as U.S. District Judge, U.S. District Court for the Southern District of New York, July 31.

Retired: U.S. Magistrate Judge Larry M. Boyle, U.S. District Court for the District of Idaho, September 27.

Appointed: Glenn T. Suddaby, as U.S. District Judge, U.S. District Court for the Northern District of New York, September 5. Appointed: Ivan Davis, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Virginia, September 22. Appointed: Benita Y. Pearson, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Ohio, August 29.

Resigned: U.S. Magistrate Judge George C. Kosko, U.S. District Court for the District of South Carolina, September 5. Deceased: U.S. Senior District Judge H. Dale Cook, U.S. District Court for the Northern District of Oklahoma, September 22. Deceased: U.S. Senior District Judge Barefoot Sanders, U.S. District Court for the Northern District of Texas, September 21.


Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION Linda Stanton CONTRIBUTOR Dick Carelli, AO Please direct all inquiries and address changes to The Third Branch at the above address or to

JUDICIAL BOXSCORE As of October 1, 2008 Courts of Appeals

Vacancies Nominees

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Vacancies Nominees

Courts with “Judicial Emergencies”

Up-to-date information on judicial vacancies is available at http://www.

23 16 13

I N T E R V I E W continued from page 7

Matters Disposed of by U.S. Magistrate Judges

The Duties of Magistrate Judges

During the 12-Month Period Ending September 30, 2007

Last fiscal year, U.S. magistrate judges disposed of a total of 948,086 matters in the courts. The chart illustrates how their workload contribution to the U.S. district courts breaks down. The largest number of matters are felony preliminary proceedings, which include search and arrest warrants, summonses, initial appearances, preliminary examinations, arraignments, detention hearings, and bail reviews. Felony pretrial matters disposed of by U.S. magistrate judges include motions, evidentiary hearings, pretrial conferences, probation/supervised release hearings, and guilty plea proceedings. Prisoner litigation includes reports and recommendations in state and federal habeas corpus cases, civil rights cases, and evidentiary hearings. Other civil matters include motions, pretrial conferences, settlement conferences, evidentiary hearings, Social Security appeals, and special masterships. Magistrate judges also handle civil consent cases, which may include a trial, and misdemeanor/petty offense cases.

Felony Preliminary Proceedings Other Civil Matters Felony Pretrial Misdemeanor/Petty Offenses Prisoner Litigation Civil Consent Miscellaneous Matters

sometimes to benefit from the particular skills of incumbent magistrate judges. In New Jersey, for example, one of the primary roles of our magistrate judges is conducting settlement conferences, and they’ve become very effective in settling cases. There’s no ideal or specific model for magistrate judge utilization, however, the Judicial Conference and the Magistrate Judges Committee do encourage extensive utilization of magistrate judges. In fact, the Committee has summarized its views in a paper called “Suggestions for the Utilization of Magistrate Judges,” which we make available to judges and others in the district courts.


Do the district courts have sufficient magistrate judges? Has the Judiciary’s cost-containment efforts affected the need for magistrate judges?


I believe there are sufficient magistrate judges in most courts. Basically, the districts make a request when they believe that their caseload and other factors call for more magistrate judges. Once the AO’s Magistrate Judges Division receives a request for a new magistrate judge position, an attorney there conducts a survey of the district by visiting the district to discuss the matter with various See Interview on page 10

Time Line in the Evolution of the Magistrate Judges System


The Act is amended to authorize magistrates to hear and determine non-case-dispositive motions, and to hear case-dispositive motions and prisoner cases, and issue findings and recommended dispositions.


The Act is amended to authorize magistrates to try civil cases with consent of the parties and to order entry of judgments, to expand their criminal jurisdiction to include all misdemeanor cases, to establish a merit selection process for magistrates and to authorize law clerks for magistrates.

Justice appoints the first magistrate to 1980 Chief serve on a Judicial Conference committee. Act is amended to authorize 1986 The the recall of retired magistrates.

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I N T E R V I E W continued from page 9 judges and others in the court. They talk to the chief judge, other district judges, and the magistrate judges about utilization, caseload information including the court’s per judgeship statistics, and other topics affecting the court, including court governance. They see just how the court operates and then evaluate the court’s request based on Judicial Conference criteria to determine whether to recommend the requested position. That survey is submitted to our committee and then I, as chair, assign each request to a committee member, and that judge reports on the request to the whole committee. We look at this with a strict eye to the criteria that we know the court has to meet. Then, after full discussion, we make a determination whether we should recommend to the Judicial Conference that it approve the new position. In 2004, when we were facing an unprecedented budget crisis, the Judiciary launched a comprehensive cost-containment campaign, and our committee—at that time under former chair Judge Nina Gershon (E.D.N.Y. )—responded to the mandate for cost containment. We continue to do so today. Under normal circumstances, we don’t consider new magistrate judge positions at our December meetings; we only consider them at our June meetings. But of course, our job is not merely to do our part to control the budget, it is also to meet the needs of the Judiciary, and although

we certainly look at each request with a stringent application of the criteria that justify the needs, if a district needs and justifies a new position, we certainly recommend that it be approved. While the number of requests for additional magistrate judge positions has declined significantly in the past few years, the number of magistrate judges overall continues to grow as the result of the growth in the district courts’ caseloads, as well as the increased recognition by district judges of the role that magistrate judges play and the value they are to the courts.


Congress hasn’t passed an omnibus judgeship bill since the early 1990s. With few new Article III judgeships, are magistrate judges filling the gaps in workload?


Of course the Judiciary doesn’t have control over the creation of Article III judgeships. As a result, the creation of magistrate judge positions is essentially a self-help mechanism available to the federal Judiciary. However, magistrate judges and district judges are not fungible. Magistrate judges’ authority is constrained by constitutional and statutory limits. For example, magistrate judges don’t have felony trial

Judge Dennis M. Cavanaugh (D.N.J.)

authority. They can fully adjudicate a civil case, but only upon consent of the parties. So while magistrate judges can’t, and shouldn’t, take the place of district judges, they can and do serve to supplement each court’s available judicial resources.


In some of the border courts, the number of immigrationrelated misdemeanor cases has skyrocketed. What has been the impact on the magistrate judges in these districts?


Certainly the impact of the recent increased prosecution of misdemeanor cases in U.S. courts

Time Line in the Evolution of the Magistrate Judges System


The Act is amended to link the salary of a full-time magistrate to 92 percent of the salary of a district judge. A new retirement is system established providing a full salary annuity at age 65 with 14 years of service.

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The title of office is changed by statute to United States magistrate judge.

The Act is amended to eliminate the consent requirement in most petty offense cases to permit oral consent in Class A misdemeanor cases and mandate that all appeals of magistrate judge decisions in civil consent cases be to the courts of appeals.

on the Mexican border has been tremendous. In the first six months of 2008, in the five southwestern border courts, magistrate judges disposed of over 32,000 misdemeanor immigration cases. That’s almost as many as they disposed of in all of 2007. In several locations, magistrate judges are processing up to one hundred immigration defendants at a time, conducting initial appearances, plea proceedings, and sentencing proceedings for those defendants at one court sitting. The huge growth in the misdemeanor workload, along with continued growth in the number of felony preliminary proceedings handled routinely at these locations, has resulted in several border courts asking for authorization of additional magistrate judges. The Magistrate Judges Committee has already recommended authorizing two of these additional positions in one district and will be considering several additional requests from other border courts at our upcoming meetings.


A magistrate judge and a bankruptcy judge now attend Judicial Conference sessions. What role do magistrate judges play in court governance at the local, circuit, and national levels?


A magistrate judge and a bankruptcy judge were first invited to attend the Judicial Conference in a non-voting, observer capacity a few years ago by the late

Chief Justice Rehnquist, and Chief Justice Roberts has continued the practice. The current magistrate judge representative is Magistrate Judge Robert B. Collings (D. Mass.). The Federal Judicial Center Board includes a magistrate judge member and the majority of Judicial Conference committees have at least one magistrate judge member. Most circuit judicial councils now invite a magistrate judge to participate in their meetings as a non-voting representative. In their own districts, many magistrate judges have been invited to attend judges’ meetings; they are appointed to court committees; and otherwise share in governance and policy-making activities. The Magistrate Judges Committee strongly favors magistrate judge involvement and participation in court governance activities. Like everyone else, magistrate judges want to be kept apprised of what is going on in the Judiciary. There’s a lot of administrative work in running the federal court system, and I think magistrate judges have a lot to offer at all levels. I know there are discussions about courtroom sharing and other things that will affect magistrate judges, and it’s very important for district judges to hear what magistrate judges have to say about these issues because we don’t always have the same perspective on the district level. Like anything else, the more people and different perspectives involved, the better the decision. They are an indispensable part of the Judiciary, and they have a lot to add.


What do you see for the future of the magistrate judges system?


Within statutory and constitutional parameters, I believe that magistrate judges will continue to be authorized to exercise a broad range of authority. Innovation in the utilization of magistrate judges will probably, and hopefully, continue. It will be driven by increasing caseloads and the need to maximize the effectiveness of magistrate judge utilization overall. I’m hopeful that we can make strides towards greater diversity in the magistrate judge system, which the Magistrate Judges Committee strongly encourages. I also believe the stature and responsibilities of the office of magistrate judges will continue to attract very highcaliber applicants. And I expect that magistrate judges will continue to play an important role as an effective and flexible judicial resource in addressing critical workloads and challenges, as for example, the way magistrate judges have been heavily utilized to meet the massive influx of criminal cases in the southwest border courts that we just discussed.

In Camera roundtable looks at magistrate judges in the federal courts today. View the video at MagistrateJudges.wmv.

Act is amended to expand magistrate judge contempt authority 2000 The to eliminate the consent requirement in all petty offense cases and to expand magistrate judge authority in cases involving juveniles. Judicial Conference agrees to invite one magistrate judge, 2004 The selected by the Chief Justice, to attend Judicial Conference sessions in a non-voting capacity.

11 The Third Branch


October 2008

Bill Passes continued from page 4 duty from $100 to $1,000 and a potential penalty of community service is added; • the maximum civil penalty is increased from $1,000 to $5,000 for an employer who retaliates against an employee serving on jury duty, and a potential penalty of community service is added; and • a district court is not required to hold a public drawing for the selection of names for jury wheels, a function now performed by computers, but a public notice must be posted explaining the selection process. Other provisions in the legislation will: • establish a mechanism to increase the case compensation

maximums for representation of Criminal Justice Act defendants in non-capital cases by the same percentage as any increases in the hourly compensation rates; • allow a circuit chief judge to delegate to any senior circuit judge the review of CJA vouchers in excess of the statutory maximums; • update a 1948 statute to allow the assessment against the losing party of the costs of electronic versions of certain items listed in the statute; • update a 1939 statute to officially include magistrate judges among the judges who may be invited to attend circuit judicial conferences; • clarify the availability of intermittent confinement and community confinement as possible conditions of supervised release; and

THE THIRD BRANCH Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544


• authorize the Director of the Administrative Office to provide goods and services to pretrial defendants and clarifiy similar authority for postconviction offenders. “S. 3569 is necessary to improve the functioning of the U.S. courts, which will ultimately benefit the country and the American people,” said Representative Lamar Smith (R-TX), the ranking member of the House Judiciary Committee. “This bill’s passage was the result of a lot of hard work by the AO’s Legislative Affairs staff,” said AO Director James C. Duff. “The bill’s provisions will help make the Judiciary more efficient, more accountable, and more public-service oriented.”






2008-10 Oct  

Newsletter of the U.S. Courts

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