To Be or Not To Be: That is the Answer

By Hon. Scott E. Axline

In Shakespeare’s play, Hamlet, Prince Hamlet starts a soliloquy by uttering these words:  “To be, or not to be. That is the question:…”  As we approach the 50th anniversary of the inception of the Magistrate Court system in Idaho I thought it might be beneficial for some if we look at exactly what it takes to become a Magistrate Judge and why someone would want “to be” a Magistrate.


Magistrate judges in Idaho as we know them now were first established by the Idaho Legislature on January 11, 1971. Prior to 1971 the court system in Idaho, with the exception of District Judges and the Supreme Court, which are both established by the Idaho State Constitution, was made up of a hodgepodge of local judges including probate judges, justices of the peace, police court judges, town judges, and traffic court judges, just to name a few. Some were attorneys, but many were not.  Those who were not attorneys were “lay judges.” These were the judges the vast majority of citizens involved in the courts actually come into contact with.  My own estimate is that 90 percent of the people who went to court were dealing with this hodgepodge of local Judges.  The change in 1971 bringing them all under one umbrella really was a monumental change in the courts of Idaho relative to the lower-level judges, because it changed what was required to be a judge and clearly defined what the judge could do.  Prior to this time, many, if not most, of the lower judicial positions were part-time positions. If a person was an attorney, she/he could also perform judicial functions to supplement their income and provide a service to the community. If they were a lay judge their judicial function could supplement their income from their regular job. On January 11, 1971 that changed.  On that date, pursuant to Idaho code section 1-103, “all probate courts, Justice of the peace courts, and police courts shall cease to exist….”

The Magistrate division of the District Court is established and defined in Idaho code section 1-2201, et seq.  The qualifications to become a Magistrate are set forth in section 1-2206:  a candidate must be at least 30 years of age; they must be a citizen of the United States; they must have been a legal resident of the state of Idaho for at least two continuous years immediately preceding their appointment; they must have been in good standing as an active or judicial member of the Idaho State Bar for at least two continuous years immediately preceding their appointment; and they must have held a license to practice law or held a judicial office in one or more jurisdictions for at least five continuous years immediately preceding their appointment.

The old system was thus put “to sleep”, if you will, in the hope, the “dream”, of what the new Magistrate Division could be for the State of Idaho and its citizens.


What may not be readily apparent is that to even consider being a Magistrate Judge, absent extraordinary circumstances not relevant to this discussion, a person must have graduated from high school (12 years of school), received an undergraduate degree (four years of school), graduated from law school (three years of school), passed the State Bar exam (which when I took it was a three-day exam), been admitted to practice law and held that ability and responsibility for at least five years. So, if one sails straight through, a person has to have 19 years of schooling, pass a multi-day exam, and keep their head above water in the practice of law for at least five years, a total of 24 years.

Of course, they must also be at least 30 years of age, which most will be, or will be close to, by the time they meet the rest of the criteria. That being said, the vast majority of Magistrates appointed in the State of Idaho are well past 30 years of age and have practiced law for a lot more than five years. Once a person has reached these milestones they can then throw their hat into the ring to be appointed as a Magistrate Judge. That “ring” is the Magistrate Commission.  Pursuant to Idaho code section 1-2203, the Magistrate Commission of each Judicial District is made up of the Chairman of the Board of County Commissioners of each county in the judicial district, the Mayors of three municipalities in the judicial district which are appointed by the Governor, two qualified electors residing within the Judicial district which are also appointed by the Governor, the Administrative Judge of the district, two attorneys nominated by the District Bar Association in each district and appointed by the Idaho State Bar, a Magistrate Judge in the district, and the County Clerk in the district to be appointed by the administrative District Judge.  A daunting group to be sure. 

As part of the process of going before the Magistrate Commission, the State Bar sends out a survey to all attorneys and also makes it available to the general public regarding each of the candidates who has applied.  That number varies each time but has been as high as almost 30 applicants.  The surveys are returned anonymously to the commission and include the comments and assessment of each candidate by members of the Bar and the public who may like or dislike the candidate for whatever reason. Most Magistrate Commissions then take those responses and come up with a “short list” of candidates to be interviewed.  The candidates also will have to provide information about themselves, including financial information, legal history, work history, education background, and Bar complaints against them, just to name a few.

So the candidate, along with all the other candidates who have made the “short list”, goes before this commission and is interviewed, which entails telling the commission a little about themselves and why they want to be a judge and answering questions put to them by the individual commission members, some of these questions may be prompted by comments made in the anonymous survey.  At the end of the interview process the Commission goes into executive session and discusses the candidates and votes. Once they have a majority vote, the candidate they picked is informed they have been selected to be a Magistrate Judge. This process would be harrowing enough if that were the end of it, but it is not. 

Pursuant to Idaho code section 1-2205 (C) the decision of the Magistrate Commission may be disapproved by a majority of the District Judges in the district within 30 days.  And the new Magistrate Judge is on “probation” for 18 months following her/his appointment during which time she/he may be removed from office without cause by majority vote of the commission. During this 18 month probationary period many of the Magistrate Commissions have the new Magistrate go through a review process every six months, during which the State Bar will send out another survey so the attorneys and people in the community can again make anonymous comments, good and bad, and rate the new judge on her/his performance.

During this same period of time the new judge is required to attend two multi-day “New Judge Orientation” courses at the Idaho Supreme Court. They must also attend a two-week course at the National Judicial College in Reno, Nevada.  If they make it through all of that, the Magistrate then has to face an election every four years to determine if he/she will be retained in office or will to go back into the private sector and start all over trying to build up a client base.

After the Commission notifies them of their appointment, the candidate has a short period of time, probably around 60 days, to wind up their legal practice, which in many cases means several hundred cases and clients, and, if they don’t live in the County where they will be seated, sell their home in their current county, purchase a home in their new county, and move their family.

Most, if not all, of the candidates coming out of the private sector will be taking a pretty significant pay cut, particularly if they have more than the 5 year minimum of experience.  The longer they have practiced law and the more experienced they are, both of which will make them better judges, the greater the likelihood they will be taking a pay cut and the greater the pay cut will be.  Oh, and let us not forget that, pursuant to Article V. Section 17,  of the Idaho Constitution and I.C. § 59-502, if the Judge cannot get a decision out in 30 days his/her pay is withheld until it is completed.

The candidates truly do “suffer the slings and arrows” in pursuit of their dream of becoming a Magistrate Judge.


And, while a candidate may only practice in one or two areas of the law in their private practice, from the first day on the job, which in most cases is before they have attended the New Judge orientation or the Judicial College, they are thrown into “a sea of troubles.”  They are required to know almost every area of the law since they may well be hearing cases in the following areas:  Civil cases under $10,000.00, whether contract, personal injury, or otherwise, evictions (including forcible entry, forcible detainer, and unlawful detainer), collections, the probate of wills and administration of estates of decedents, minors and incompetents (which can involve millions of dollars), guardianships, termination of parental rights, all actions for change of name, all proceedings for divorce, separate maintenance or annulment, including orders to show cause, hearings and issuance of restraining orders; including all child support and maintenance proceedings, all Domestic Violence and Protection Order proceedings, all habeas corpus proceedings, including all habeas corpus proceedings involved in a criminal proceeding or conviction, juvenile justice cases, misdemeanor cases (including D.U.I. and battery, etc.), infractions, arraignment court, proceedings pertaining to warrants for arrest or for searches and seizures; mental commitment proceedings, and proceedings for the preliminary examination to determine probable cause, commitment prior to trial or the release on bail of persons charged with criminal offenses, just to name a few.

A Magistrate Judge can, and often does, go from deciding where children will live in a family law case in the morning to deciding who will go to jail in a criminal case in the afternoon.  From presiding over an adoption one day to terminating parental rights the next.  From deciding if someone was actually speeding to deciding if there is probably cause to bind a defendant over to the District Court on a First Degree Murder charge which may carry the death penalty, to deciding who gets to inherit millions of dollars in an estate.  They literally have to know it all.

And they have to know it all the time.  A Magistrate Judge will usually be assigned “on call” duties, which means they review all the requests for warrants and new felony criminal complaints and also arraign defendants on new criminal charges.  And they do this on top of their regular calendar of cases during the day.  And when “on call,” they have to be available in the middle of the night for warrants for blood draws and search warrants, etc. and also be available on weekends to review new cases and determine bond amounts.  If they are a judge in a one judge county they have these duties 24/7/356.  If they are a judge in a multi-judge county they usually rotate these duties.

Magistrate Judges are the first line of defense against “the sea of troubles” citizens find themselves in, whether by their own doing or not.


So one can see that “to be or not to be” is not really the question, it is the answer. For if a person is asking themselves whether they want to be a Magistrate Judge or not, the answer is more than likely “…not to be.” For the vast majority of Magistrate Judges, if not all of them, there really was no question of whether they wanted to be a Magistrate Judge, they already knew that. They apply because they know that is what they want to do and they serve because they love the job and they want to give back to the community that they live in.

That is the answer.

Judge Scott E. Axline has been a magistrate judge in Bannock County, Idaho since January 4, 2013. He covers cases in the Sixth Judicial District and has also been appointed by the Idaho Supreme Court to hear cases in the Seventh Judicial District. He and his wife, Jackie, have four children and 11 1/2 grandchildren.