By Hon. Jennifer L.K. Haemmerle

The phone rings at about 2:00 a.m. In response to the groggy, “Hello?,” comes one word… “Judge….” That’s all she needs to know; this is not a personal call but a request for a search warrant. Throughout the wee hours of the morning on any given day, weekend, or holiday, somewhere in Idaho a magistrate judge is up and awake conducting business as usual. In that regard, most parties don’t even know that a judge is already exercising judicial review and discretion over some issue that will affect his or her life.

“Got up, rolled out of bed, dragged a comb across my head”[i]

Any day can start with that call, which launches the Idaho magistrate judge into a day that will require her to respond to a vast variety of legal issues, civil and criminal, urgent and benign, that present themselves across the 44 counties and 95 benches that are the world of the judges of the Idaho Magistrate Division.

The Elephant in the Courtroom

The Idaho magistrate judge is the proverbial elephant encountered by the six blind men. As retold in the poem “The Blind Men and The Elephant” by John Godfrey Saxe,[ii] each man touched a different part of the elephant – the side, tail, trunk, tusk, ear, and knee. Based upon individual perception, each man determined that the elephant was a wall, rope, snake, spear, fan, or tree. The story illustrates that each person perceives his own truth based upon his own experience. In the same way, the party appearing before the magisterial elephant on one day may only perceive one facet of the magistrate bench, but the day holds many different encounters for the judge. To mix metaphors, the magistrate judge is a work horse, not a one trick pony.

First, consider that the blind men have never encountered an elephant before. So is the case with most people who find themselves in a courtroom. For many litigants, a case before the magistrate will be the first and often the only time that they are present in a courtroom. Even when the magistrate is hearing a matter in which the parties are represented by counsel who are well familiar with the courtroom, it is a new, challenging, and even intimidating experience for the party. The atmosphere is formal, the proceeding adversarial and unfamiliar, and there is an individual in a black robe (usually) who will render a decision that may affect how often a father sees his children, how much jail time a mother convicted of DUI must serve, or whether the decedent’s will was validly executed.

For each of these individuals, the magistrate judge is just that part of the elephant – the decider of custody, imposer of the sentence, and interpreter of the will. But these parts, and many more, are combined to make up the magistrate bench.

“Forget everything you have seen in television and the movies.”[iii]

During the week, the judge could start her daily docket with arraignments – the first appearance for dozens of defendants with misdemeanor charges arising from alleged violations of Idaho statutes or county and municipal code. Charges of every nature from misdemeanor vehicular manslaughter to a dog nuisance complaint must proceed through the same arraignment process.  Encounter any magistrate in the state, and she will be able to recite the penalty for dozens of criminal offenses.

 The rote recitation of rights and penalties is a far cry from the exciting pace of the TV crime drama. But this process, day after day, is critical to confirming constitutional rights – appointment of counsel for the indigent and setting of bond and pre-trial release.[iv] Hopefully, it is the thoughtful exercise of discretion on pre-trial release that prevents further crimes and protects people, including the defendant, from potential harm.

That same morning, the magistrate will also be the first judge to preside over the most serious of offenses in the state. Most citizens associate felony trials with district court but overlook that the majority of persons charged with felonies first appear before the magistrate. Sometimes that felon appears in court based on the very search warrant authorized by the magistrate in the middle of the night. It is not unusual that the only evidentiary hearing in a felony case is the preliminary hearing before the magistrate. A well heard preliminary hearing by a magistrate judge may help counsel focus on issues for resolution before the district court.

For many individuals, these appearances on infractions, misdemeanors, and felonies may be the first time they have been in a courtroom. It is often the first time they have encountered the protections of due process that are afforded to all of us under the Constitutions of the United States and the State of Idaho. For those who come before the magistrate for criminal proceedings, the judge starts out as the solid side of the elephant – the wall that stands firm to ensure constitutional rights are afforded to them.

“My object all sublime, I shall achieve in time – to let the punishment fit the crime”[v]

As part of the criminal docket morning, the magistrate judge moves to the tusk of the elephant. When considering the important task of imposing a criminal sentence, the judge must be keen in discernment and firm in conviction. Fortunately, the criminal sentencing and attendant interaction with the public gives the magistrate an opportunity to be more than just the judge who imposed a sentence. For many judges, the criminal sentencing docket is also the opportunity to provide tools, support, and encouragement as well as the sharp end of punishment when appropriate.

Whatever tools the magistrate judge choses, the ultimate goal at sentencing is to protect society and guide the defendant back onto the path of a law-abiding citizen.

“A hundred suspicions don’t make a proof”[vi]

On criminal law day, the magistrate will also preside over “motions to suppress.” Magistrates issue decisions that inform and shape the interpretation of search and seizure laws in the state, which have lasting and reverberating effect. The magistrate’s ruling on a suppression issue is often the rope that reigns in arbitrary police conduct or confirms that law enforcement’s detention of a defendant was supported by facts and the applicable constitutional standards. A cool and calculated ruling on a motion to suppress is essential for constitutional protections guaranteed to all citizens.

The docket of a magistrate judge, like the elephant’s trunk, is versatile and diverse. Administrative rules list an expansive case load assigned to the jurisdiction of the magistrate judge.[vii] Jurisdiction spans every element of the human condition from mental health to housing and from divorce to death. Collections, custody, juvenile proceedings, jury trials, drinking and driving, probate, and paternity are all in the magistrate judge’s bench docket. During any given lunch break, the magistrate turns her attention to the ever-present Odyssey queue (the “Q”). A scroll through the Q may reveal orders for suspension of driving privileges in “refusal” hearings, default proceedings in collection actions, requests for scheduling conferences and trial settings,  orders and letters for the probate of wills, and reports to review in guardianship cases. Immediately after dealing with the Q, the magistrate is prepping for the next hearing, maybe an eviction trial, small claims case, or divorce. The judge often wonders if all will be accomplished by the end of the day.

“There is no such thing as an open and shut custody case.”[viii]

Family law can present the greatest of challenges for the magistrate. Most family law judges and attorneys concur with the opening lines of Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.”[ix]  To be sure, most families in domestic relations cases, with guidance from court and counsel, resolve their differences and move forward amicably and with respect. It is a minority of cases that present the emotionally charged and legally challenging issues that require litigation. But those cases, when before the judge, demand full attention. The family law day for the judge will include temporary custody and support orders. Jurisdictional challenges under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) invite the intriguing prospect of a phone call to the judge in another state to discuss the merits of competing jurisdictional challenges.

Any family law day can also start with hearing civil protection orders. The protection of children and adults who have been victimized and controlled by domestic violence or stalking is a paramount concern to the court. But such protection must be within the scope of the law. The magistrate judge must be able to explain to a frustrated and agitated applicant why the law does not provide relief in his or her situation.

In the same day, the judge may hear a trial on separate property tracing from a comingled stock account, request for spousal maintenance, the determination of how to divide the family holiday decorations, or permission to relocate with a child to another state. For a brief and focused period of time, the magistrate becomes an expert on that family. The judge then digests the facts and applies those facts to law, which vests the judge with wide discretion. The Solomon-like approach to cut the baby in half is not available in practice when addressing custody or the division of property. When the judge leaves her office at the end of the day, she hopes she exercised her discretion well, discerning the best interests of the child and equitable division of the assets.

“To listen well is as powerful a means of communication and influence as to talk well.”[x]

Almost without exception, litigants believe that being listened to is as important or more important than the outcome of their litigation experience. This is particularly true for self-represented litigants. A party with an attorney can count on his attorney to explain the proceeding before, during, and after the hearing. A self-represented litigant must rely on his own exchange with the court at a hearing. Confirming that a judge understands, but disagrees, with the position of a party helps that party and the judge move through the process. People have a sort of ownership in the magistrate court; it is the people’s court.  The magistrate judge gives dignity and humanity to the people before her by taking the time to listen and explain the rule of law.

In Idaho, the magistrate probate docket is truly the “cradle and grave” practice. TV shows aside, the terms “people’s court” and “family law” move into a different realm when the judge must address long simmering issues that probate can present. Decedent’s estates, wills, trusts, guardianships, and conservatorships fall under the probate code. Most people know only one thing of probate – it is something to avoid. But for magistrate judges, probate is a rich area of the bench full of human drama, surprise, and emotion.

“Death is not the end. There remains the litigation over the estate.”[xi]

A magistrate with a probate docket for the day may be required to assess testamentary capacity or address the validity of a handwritten will. The judge that hears a probate dispute one day will next decide whether grandparents are entitled to appointment of guardianship for their grandchild. There is satisfaction in helping parents of a young man with developmental disabilities attain guardianship for their son and in measuring the limitation appropriate for the exercise of that guardianship.

Attendant with the probate code and its dealings with our mortality are the adoption statues. In these rare moments, the court is part of the creation of a family. Adoptions are often the most rewarding part of a magistrate’s day.

On the other hand, the saddest and hardest of days come a few chapters apart in the same code book, as magistrates are also called upon to preside over the Child Protection Act cases. These cases may end in litigation over termination of parental rights, the weightiest of cases a magistrate may hear. There are also good days when a magistrate can dismiss a case after the parents have taken the steps in their case plan to learn skills for protection of their child.

The magistrate judge’s service in the protection of society does not end with the bench and the clock. Before or after regular court hours, many judges preside over treatment courts. Treatment courts, including DUI courts, drug courts, mental health courts, and domestic violence courts are designed to help identify, address, and improve or resolve the underlying social justice problems such as emotional trauma and mental health issues that bring a party into contact with the court system through criminal behavior. Some judges also have “attendance courts,” designed to help address social justice issues in families that may manifest when a child is not getting to school on a regular basis. In this regard, the judge and her court are like the tree that one blind man perceived the elephant to be. A strong trunk provides support and strength, and the branches reach out to cover many Idahoans who participate in such programs throughout the state.

The day for the magistrate ends with another visit to the Q. Many magistrates stay late into the evening working on decisions, preparing for the hearings in the day to come, reading briefs, confirming penalties, and reviewing affidavits. Once home, she makes sure her phone is by the bedside, waiting for the next call.

“I saw you from across the bar. Stay there.”[xii]

It would be remiss to not address the effect of coronavirus upon the day-to-day lives of the magistrate judges and the parties that appear before them.  Ask almost any judge, and she will tell you that she became a magistrate because she wanted to serve the people in the community. She will also tell you that interaction with the parties, counsel, and colleagues are the best part of the job.   The computer screen, while invaluable to move the court process forward during the pandemic, is simply no substitute for true interpersonal communication. We miss the attorneys, the parties, and the rich texture of the personal relationships in the Idaho bar.

But the magistrate judges are still here – stick around you may see one.

“I saw one once,” said Piglet.  “At least I think I did,” he said. “Only perhaps it wasn’t.”

“So did I,” said Pooh, wondering what a Heffalump was like.

“You don’t often see them,” said Christopher Robin, carelessly.

“Not now,” said Piglet. “Not at this time of year,” said Pooh.[xiii]

While the actual sighting in person of a magistrate judge may be a rare thing these days, there is no doubt that, like the heffalumps, we are around.

Hon. Jennifer L.K. Haemmerle is the Judge of the Magistrate Division for Blaine County, Idaho. Judge Haemmerle graduated from the University of Idaho in 1985 with a bachelor’s degree and in 1989 from the University of Idaho College of Law. Judge Haemmerle was appointed as a judge by the Fifth Judicial District Magistrate Commission in October 2014 and sworn in on January 2, 2015. She currently is a member of the Misdemeanor Sentencing Alternatives Committee and the Guardianship and Conservatorship Committee and still a Vandal.

[i] The Beatles, Sgt. Pepper’s Lonely Hearts Club Band, (Capitol Records 1990) (1967). 

[ii] John Godfrey Saxe, The Blind Men and the Elephant (1872).

[iii] Philadelphia (Clinica Estetico 1993).

[iv]  I.C.R 46, 46.2 (Bail or Release on Own Recognizance; No Contact Orders).

[v] Arthur Sullivan and W. S. Gilbert, The Mikado (1885).

[vi] Fyodor Dostoevsky, Crime and Punishment (1866).

[vii] I.C.A.R 5, 5.1.

[viii] Kramer vs. Kramer (Columbia Pictures 1979).

[ix] Leo Tolstoy, Anna Karenina (1878).

[x] John Marshall, former Chief Justice of the United States Supreme Court.

[xi] 8 The Collected Works of Ambrose Bierce 365 (1911).

[xii] Internet MEME, “#Social Distancing Pick Up Lines” (2020).

[xiii] A. A. Milne, Winne-the-Pooh (1926).