• Clearing the Bench, Part 2
  • February 6, 2015
  • Law Firm: Alston Hunt Floyd Ing Attorneys At Law A Law Corporation - Honolulu Office
  • In a previous post, we discussed the dismal prospect of losing an Article III judgeship in the District of Hawai`i by the year 2017 in Clearing the Bench, Part 1.  U.S. District Court Judge Susan Oki Mollway and U.S. Magistrate Judge Barry Kurren covered the topic before the Federal Bar Association - Hawai`i chapter.

    The judges also talked about the potential loss of a magistrate judgeship by the same deadline.  While that scenario is thankfully a little less complicated, it is somewhat similar.  There is a judge (Judge Kurren) who will soon be eligible for retirement.  If he stays for another term, the spot will be preserved. But if he retires, his position may be lost to the bench.

    Magistrate judges are not lifetime appointees.  They serve for eight-year terms.  When a magistrate judge’s term expires and he or she is not reappointed to another term, then there is a vacancy in that position.  Until recently, vacancies did not create much of an issue, and district courts could fill them with new judges.  Unlike district court judges, whom the president nominates and the senate approves, the district courts themselves appoint magistrate judges in a statutorily-guided process.  Recently, however, magistrate judge vacancies have been subject to new nationwide scrutiny of the necessity of magistrate judgeships.

    The Court anticipates that it will have issues obtaining reauthorization for Judge Kurren’s position when it becomes vacant because it ran into the same problem a few years ago when Judge Kobayashi went from a magistrate judgeship to a district judgeship.  When there is a vacancy in a magistrate judge position, a commission of the federal judicial conference must reapprove the seat before it is filled.  That is no longer an easy process, and the commission has been examining in detail the court’s need for the position.  When a vacancy occurred when Judge Kobayashi became an Article III judge, the magistrate judgeship was reauthorized by only one vote on the Commission.  Given that there is already quite a high ratio of magistrate judges to Article III judges on the District of Hawaii, and that the District’s docket is not particularly busy right now, there is a substantial risk that the commission will not reauthorize the position.  At this point it is likely that the Commission would decide the issue in June 2016.

    If Judge Kurren does not retire and seeks another eight-year term, there will not be a vacancy that raises these issues.  That scenario, however, would mean that Judge Kurren has to commit to another term that would begin when he is 65 years old, and he will also forego tax benefits that he would otherwise realize by retiring.  Judge Kurren also has an option of taking a semi-retirement status that would allow the court to recall him from time to time to alleviate its caseload.  If he decides to do so, however, it lowers the likelihood that the Commission will reauthorize the vacancy to be filled by a new full-time magistrate judge.

    On the (somewhat) bright side, if the Court’s docket gets much busier in a few years, it is an easier (but not easy) process for obtaining another magistrate judgeship than an Article III position.  In any case, by about this time next year, the Judicial Conference will decide the fate of the magistrate judge position.