THIRDNewsletter

of the

Federal

Courts

Vol. 40

Number 10

October 2008BRANCH

INSIDE

THE

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

See Interview on page 7 See Rule 502 on page 4

I N T E R V I E W

Appropriations On Hold Until March 2009Congress passed and the President has signed a Continuing Resolu-

tion (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 privi-leged” document from being acciden-tally released, driving up litigation costs for time spent on this exhaus-tive 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

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. magis-trate 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.

Q:The Federal Magistrates Act celebrates its 40th

anniversary this month. What did the Act accomplish?

A: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

The Third Branch n October 2008

2

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 disqual-ified—or a natural emergency or a catastrophe, to help handle a tempo-rary caseload increase, or clear backlogged cases. We can help one another,” said Judge J. Frederick Motz (D. Md.), chair of the Confer-ence Committee on Intercircuit Assignments. “We have resources available in the federal courts with our senior and other judges who are willing to take intercircuit assign-ments. 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 termi-nated 8,172 civil cases and 603 crim-

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 Inter-circuit 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 assign-ments 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

The Third Branch n October 2008

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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 anoth-er’s dockets quite easily and hear-ings 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 reluc-tant 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 Judi-cial Resources (JRC) concerning new judgeships, the JRC considers whether the court requesting additional judge-ships has used visiting judges.”

The committee maintains a roster of judges willing to take intercir-cuit 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 judge-ship,” said Motz. “Judges are avail-able 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 ServiceJudge Roger L. Gregory (4th Cir.) (center) chair of the Judicial Conference Committee on the Administrative Office and AO Direc-tor 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 Ser-vice Awards. Sargol created a staffing-predic-tor spreadsheet that provides important bud-get forecasting information and guidance to the courts; Seidel developed the emergency notification system (ENS) which securely stores emergency contact information, man-ages phone tree hierarchies, and provides an automatic system for notifying court employ-ees; Ron Kendall successfully led the Cir-cuit Rent Budget Working Group and was instrumental in negotiating a memorandum of understanding with GSA for a fair sys-tem of rental rate determinations. AO senior staff, judges, and court unit executives nomi-nate recipients for the awards given for note-worthy achievements in supporting the fed-eral courts.

The Third Branch n October 2008

Rule 502 continued from page 1

See Bill Passes on page 12

4

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 contribu-tions of the AO’s Office of Legisla-tive Affairs and Rules Support Office with whose help, “we were able to carry out the request of the Judicial Conference and achieve this impor-tant 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 legis-lation.

The bill, according to Leahy, had the support of the legal commu-nity. “It responds to the widespread complaint,” he said, “that litigation costs necessary to protect against

waiver of attorney-client privi-lege or work product have become prohibitive due to the concern that any disclosure (however inno-cent 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 docu-ment containing privileged informa-tion 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 Confer-ence 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

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 signifi-cantly reduced if the risks of waiver were clarified and limited,” said Rosenthal. “New Evidence Rule 502 provides a consistent and predict-able 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 prepro-duction 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.

Bill Passes with Judiciary’s Requested Improvements

The Judicial Administration and Technical Amendments Act of 2008—a bill that contains 18 court improve-ments endorsed by the Judicial Confer-ence—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

changing times and circumstances, the Judiciary needs improvements to increase its efficiency and administra-tive 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:

•ajuroriseligibletoreceivea$10supplemental fee after ten days

of service or a trial, rather than the previous requirement of 30 days;

•adistrictcourthasthediscre-tion 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;

•themaximumfineisincreasedfor failure to respond to a jury duty summons and for lying on a questionnaire to avoid jury

The Third Branch n October 2008

5See DSS on page 6

DSS Opens Data Warehouse

The Judiciary’s new Decision Support System (DSS) puts a results-based, 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 Proba-tion/Pretrial Services Automated Case Tracking System (PACTS), used by all 94 districts, into the National PACTS Reporting Data-base. 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 consoli-date 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, when-ever they want it.”

Logging into Version I of DSS, users can view dashboards on clin-ical services, post-conviction super-vision, pre-sentence reports, pretrial services, and workload. Dashboard is a term used for the Web-based display of data. Like a car’s dash-board, it shows how the machine is performing. For example, a proba-tion 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 capabili-ties. 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 avail-able 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 proba-tion officer in the Eastern District of Michigan. “We can see what the average cost per client is per treat-ment 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 treat-ment and types of supervision we select are making a difference.”

Because Feril’s office is consid-ering 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 recom-mendation 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 measure-ment framework. DSS delivers that framework.

The Third Branch n October 2008

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DSS continued from page 5 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.”

“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-year-old U.S. commissioners system. After a pilot project, the first magis-trates 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 inti-mate knowledge of the magistrate judges system. Both have served on the bench for its entire history.

“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.

He eventually became active in the Federal Magistrate Judges Association (originally called the National Council of U.S. Commis-sioners and then the National Council of U.S. Magistrates), serving as its president for a year.

Komives was also the first magis-trate 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 remem-bers the system’s modest beginning. “I had one desk, one chair, one secre-tary, and one courtroom deputy,” he said, adding that his initial annual salary was to have been $30,000 but turned out being $22,500.

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 divi-sional 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 offi-cers 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.”

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

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

The Third Branch n October 2008

Distribution of Magistrate Judge Positions1971 - 2008

600

1971 1976 1981 1986 1991 1996 2001 2006 2008

500

400

300

200

100

0

Full-Time Magistrate Judge Positions Part-Time Magistrate Judge Positions Combination of Clerk/Magistrate Judge Positions

7

See Interview on page 9

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.

Q:What is the role of magistrate judges today in the federal

court system? How has it changed in 40 years?

A: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 explic-itly 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 magis-trate judges’ authority, the federal courts have responded to the overall

growth in caseload by using magis-trate 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 magis-trate 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. Full-time magistrate judges serve an eight-year term and they may be reappointed for successive terms.

I N T E R V I E W continued from page 1

They are appointed by the district judges in each district.

Q:District courts utilize their magistrate judges in different

ways. Why is that?

A: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 effec-tive role of magistrate judges, and

Time Line in the Evolution of the Magistrate Judges System

1968The Federal Magistrates Act (the Act) is signed into law by President Lyndon Baines Johnson on October 17.

1969The Judicial Conference establishes the magistrates system in five pilot districts: District of Columbia, New Jersey, Virginia Eastern, California Southern, and Kansas.

1970 The Judicial Conference authorizes 83 full-time magistrate positions, 450 part-time magistrate positions and 13 combination clerk-magistrate or referee in bankruptcy-magistrate positions to replace over 700 commissioners.

1971By July 1, the magistrates system is fully operational, replacing the commissioner system in all district courts.

The Third Branch n October 2008

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THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

CONTRIBUTORDick Carelli, AO

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of October 1, 2008

Courts of Appeals

Vacancies 11 Nominees 10

District Courts

Vacancies 23 Nominees 16

Courts with“Judicial Emergencies” 13

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

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

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

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

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

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.

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

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

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

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

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.

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The Third Branch n October 2008

Q:Do the district courts have sufficient magistrate judges?

Has the Judiciary’s cost-containment efforts affected the need for magis-trate judges?

A: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

9

See Interview on page 10

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

Time Line in the Evolution of the Magistrate Judges System

sometimes to benefit from the partic-ular skills of incumbent magistrate judges. In New Jersey, for example, one of the primary roles of our magis-trate judges is conducting settlement conferences, and they’ve become very effective in settling cases.

There’s no ideal or specific model for magistrate judge utiliza-tion, however, the Judicial Confer-ence and the Magistrate Judges Committee do encourage extensive utilization of magistrate judges. In fact, the Committee has summarized its views in a paper called “Sugges-tions for the Utilization of Magistrate Judges,” which we make available to judges and others in the district courts.

1976The 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.

1979 1980The Act is amended to authorize magistrates to try civil cases with consent of the parties and to order en-try 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.

Chief Justice appoints the first magistrate to serve on a Judicial Conference committee.

1986 The Act is amended to authorize the recall of retired magistrates.

The Duties of Magistrate Judges

Last fiscal year, U.S. magis-trate judges disposed of a total of 948,086 matters in the courts. The chart illustrates how their work-load contribution to the U.S. district courts breaks down.

The largest number of matters are felony preliminary proceed-ings, which include search and arrest warrants, summonses, initial appearances, preliminary exami-nations, arraignments, detention hearings, and bail reviews. Felony pretrial matters disposed of by U.S. magistrate judges include motions, evidentiary hearings, pretrial conferences, probation/super-vised release hearings, and guilty plea proceedings. Prisoner litiga-tion includes reports and recom-mendations 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 ProceedingsOther Civil MattersFelony PretrialMisdemeanor/Petty OffensesPrisoner LitigationCivil ConsentMiscellaneous Matters

Matters Disposed of by U.S. Magistrate JudgesDuring the 12-Month Period Ending September 30, 2007

The Third Branch n October 2008

10

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 infor-mation 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 Judi-cial Conference criteria to deter-mine 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 discus-sion, 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 comprehen-sive 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 posi-tions 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 justi-fies 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 recog-nition by district judges of the role that magistrate judges play and the value they are to the courts.

Q:Congress hasn’t passed an omnibus judgeship

bill since the early 1990s. With few new Article III judgeships, are magis-trate judges filling the gaps in work-load?

A:Of course the Judiciary doesn’t have control over the creation

of Article III judgeships. As a result, the creation of magistrate judge posi-tions is essentially a self-help mecha-nism available to the federal Judi-ciary. However, magistrate judges and district judges are not fungible. Magistrate judges’ authority is constrained by constitutional and statutory limits. For example, magis-trate judges don’t have felony trial

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.

Q:In some of the border courts, the number of immigration-

related misdemeanor cases has skyrocketed. What has been the impact on the magistrate judges in these districts?

A: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

1988 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.

1990 1996The title of office is changed by statute to United States magistrate judge.

The Act is amended to eliminate the consent require-ment 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.

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

The Third Branch n October 2008

11

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 misde-meanor 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 proceed-ings, 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 loca-tions, 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.

Q: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:A magistrate judge and a bankruptcy judge were first

invited to attend the Judicial Confer-ence 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 Confer-ence 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 repre-sentative. In their own districts, many magistrate judges have been invited to attend judges’ meetings; they are appointed to court commit-tees; and otherwise share in gover-nance 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 magis-trate judges, and it’s very important for district judges to hear what magis-trate 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 Judi-ciary, and they have a lot to add.

2000

2004

The Act is amended to expand magistrate judge contempt authority to eliminate the consent requirement in all petty offense cases and to expand magistrate judge authority in cases involving juveniles.

The Judicial Conference agrees to invite one magistrate judge, selected by the Chief Justice, to attend Judicial Conference sessions in a non-voting capacity.

Q:What do you see for the future of the magistrate judges

system?

A:Within statutory and consti-tutional 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 case-loads 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 high-caliber applicants. And I expect that magistrate judges will continue to play an important role as an effec-tive 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 http://www.uscourts.gov/newsroom/2008/MagistrateJudges.wmv.

FIRST CLASS MAILPOSTAGE & FEES

PAIDU.S. COURTS

PERMIT NO. G-18

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Bill Passes continued from page 4

THE THIRD BRANCHAdministrative Office of the U.S. CourtsOffice of Public AffairsOne Columbus Circle, N.E.Washington, D.C. 20544

OFFICIAL BUSINESSPENALTY FOR PRIVATE USE $300

duty from $100 to $1,000 and a potential penalty of community service is added;

•themaximumcivilpenaltyisincreased 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

•adistrictcourtisnotrequiredto 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:

•establishamechanismtoincrease 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;

•allowacircuitchiefjudgetodel-egate to any senior circuit judge the review of CJA vouchers in excess of the statutory maximums;

•updatea1948statutetoallowthe assessment against the losing party of the costs of electronic versions of certain items listed in the statute;

•updatea1939statutetoofficiallyinclude magistrate judges among the judges who may be invited to attend circuit judicial conferences;

•clarifytheavailabilityofintermit-tent confinement and community confinement as possible condi-tions of supervised release; and

•authorizetheDirectorofthe Administrative Office to provide goods and services to pretrial defendants and clarifiy similar authority for post-conviction 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 Judi-ciary more efficient, more account-able, and more public-service oriented.”