By Sarah Clemens

Nearly 50 years after the decision in Reed v. Reed, are Idaho women treated equally under the law? A look at the history of gender equality in Idaho legislation and where the legal treatment of women stands suggests that Idaho has made progress repealing facially discriminatory laws. Yet, even absent patent discrimination, there remains latent inequality in both the historical laws that remain in effect and in newly proposed legislation.

Idaho’s History and Sally Reed

“[M]ales must be preferred to females[.]”[i] Today, this language runs afoul of the Fourteenth Amendment’s Equal Protection Clause, but before 1971, gender preferences in statutes were commonplace. Sally Reed learned this upon the tragic suicide of her minor son, Skip, when the probate judge appointed Sally’s ex-husband, Cecil, as administrator of Skip’s estate—denying Sally’s petition without a hearing. The story of Sally Reed is well known in Idaho, and because of Ruth Bader Ginsburg’s involvement in the case, the story of an Idaho woman denied the equal opportunity to act as the administrator of her deceased son’s estate is equally well known throughout the country.

Sally was qualified to administer Skip’s estate. She worked from home caring for disabled individuals, and she cared for her son when Cecil abandoned her and their young son. Cecil, on the other hand, was abusive, and Skip ultimately committed suicide in Cecil’s basement with his rifle.[ii] Even so, under Idaho’s law, a preference was afforded Cecil based on gender to administer Skip’s estate.

Sally Reed appealed, employing Allen Derr and later receiving the assistance of Ruth Bader Ginsburg, who authored the brief to the United States Supreme Court. Sally Reed succeeded, knocking down the first of many barriers for gender equality that Ruth Bader Ginsburg would challenge to define gender as a suspect class.

Reed v. Reed no doubt changed how gender-based classifications were addressed under the law. Though the probate law at issue in Reed set the stage for gender equality across the U.S., Idaho’s history with gender equality was not so straightforward. Certainly, the probate law at issue in Reed was rewritten and many other gender-based classifications changed in Idaho during the 1970s. Yet even after Reed, legislation in Idaho continues to be drafted even today with gendered language, and the failure of some proposed legislation suggests that Idaho is not yet ready to proceed beyond the protections afforded women under Reed and its progeny.

Idaho has come a long way, and in many respects, has led the way, in enacting legislation that provides equal rights to women. That said, the path to equality for women in Idaho had a checkered past and the path that lays ahead remains long. For the many advancements that individual women made, many laws enacted throughout Idaho’s history have held women back.

No doubt one of the marked achievements for women’s rights in Idaho was the enfranchisement of women to vote. The Nineteenth Amendment to the United States Constitution recently celebrated its 100-year anniversary. In Idaho, however, women had gained the right to vote nearly a quarter-century earlier.[iii] In 1896, Idaho became the fourth state to grant women the right to vote, preceded only by Wyoming, Colorado, and Utah. Despite Idaho’s seemingly early recognition of women’s rights, the right to vote was not absolute. Poll taxes and literacy tests prevented minority men and women from voting for decades longer, and Native Americans were ineligible to vote at all until 1924.[iv]

In 1969 and 1972, the Idaho legislature passed two laws, Idaho Code §§ 18-7303[v] and 67-5909,[vi] both aimed at preventing discrimination on the basis of sex in employment practices. Even so, much of Idaho’s early legislation was aimed specifically at separating women on the basis of their sex. Consider this non-exhaustive timeline of legislation and case law during the late 1800s and early 1900s.

• 1800s – If a wife predeceased her husband, all community property passed to her husband, but if the husband predeceased his wife, she received half and the remaining half was disposed according to his wishes.[vii]
• 1887 – Women were granted the right to make a will by statute under Sec. 5725.[viii]
• 1899 – The Idaho Supreme Court affirmed there is no statutory right for women to make holographic wills and any will by a woman must be attested, witnessed, and proved.[ix]
• 1908 – Married women were not considered capable of committing crimes, except those punishable by death, if the woman was acting under the threat, command, or coercion of her husband.[x]
• 1919 – While married, the husband was considered to maintain absolute control over community property.[xi]
• 1924 – Women were not allowed to serve as jurors.[xii]
• 1932 – Idaho Code recognized that married women are not deprived of civil liberty to execute a contract, but a married woman may not have the same rights to enter into contracts as an unmarried woman.[xiii]

The timeline, though abbreviated, underscores the evolution of women’s rights in Idaho. As Reed v. Reed and later cases brought by Ginsburg before the Supreme Court demonstrated, discrimination on the basis of sex is unconstitutional, and Idaho’s place in that historic recognition remains vital. Yet just as Ruth Bader Ginsburg looked at Reed as the starting place for gender equality rather than a successful place to end the fight, Idaho’s treatment of women as equal remains far from complete.

In the Brief for Appellant filed before the United States Supreme Court in Reed v. Reed in 1972, Ruth Bader Ginsburg agued, “appellant was denied the right to qualify as the administrator of her son’s estate solely because of her sex.”[xiv] Nearly 50 years later, has Idaho attained the degree of gender equality that began Ruth Bader Ginsburg’s pursuit of intermediate scrutiny? Examining recent legislation and existing laws suggests the answer is: not quite.

Equal Rights Amendment

The same year the United Supreme Court issued its ruling in Reed, Idaho was in the news for a second potential step forward in women’s rights: the ratification of the Equal Rights Amendment.[xv] As one of the first states to ratify the amendment, the initial approval signaled a major step toward equal treatment for women under the law. Yet by 1979, Idaho voted to rescind its ratification, along with four other states. In committee minutes from the measure to rescind, then-Representative for Idaho Falls, Lenden Batmen stated, “[l]aws involving relationships between the sexes is an area where reasonable men may differ.”[xvi]

Despite the rescission, the amendment was reintroduced earlier this year by Representative Melissa Wintrow. Under the joint resolution, Wintrow’s proposal would amend Article 1 of Idaho’s constitution to provide for sex equality and prohibit inequitable treatment based upon gender. In opposition to the amendment, the Family Policy Alliance of Idaho released a statement that said, in part, the amendment would “prevent[] state and federal laws from making any distinctions based on sex.”[xvii] The statement went on to claim that if Idaho were to adopt the Equal Rights Amendment, “women could suddenly become eligible for the draft, and women’s federally funded shelters and prisons would have to allow men access.”[xviii] The bill to amend Idaho’s constitution ultimately failed to make it out of committee.

Gender-Neutral Legislation

The Equal Rights Amendment is not the only recent proposal before Idaho state legislators to address gender equality. In February 2016, Representative Wintrow also introduced House Bill 465, which would have amended Chapter 1, Title 73 of Idaho’s Code to add section 73-114B requiring that any new or amended sections to Idaho Code contain gender-neutral language.[xix] The bill received support from Representative Smith of Pocatello, which would also require that legislation use words such as “he/she” or “his/her” rather than masculine pronouns.

Though the bill narrowly received the votes necessary in committee to introduce it, the proposed change to the Idaho Code was met with significant resistance and advanced no further. And though this legislation would create an affirmative responsibility for lawmakers to draft all legislation in gender-neutral language moving forward, there have been some incremental changes to prior legislation. For example, for legislation that use the words “man/wife,” Idaho lawmakers have supplanted the gendered terms with the word “spouse.”

Gender-neutral language within the Idaho Code may seem inconsequential in the advancement of gender equality, but the use of gendered terms is precisely why Reed—and the plaintiffs from the other cases argued by Ginsburg—was disadvantaged; the language of the legislation separated out women for disparate treatment based solely on gender. This type of reform remains a focal point for change by many within Idaho’s legislature.

Both the Equal Rights Amendment and House Bill 465 are representative of a nationwide trend by state legislators to revise state statutes, state constitutions, and local codes to ensure the legislative language is gender neutral. To be clear, using gender-neutral terms in a statute does not automatically confer gender equality and equal rights upon women under the law. That said, the use of gender-neutral language is perhaps the first and easiest step that state legislators can take to remedy the representative disparities under the law, which is why many states have made significant efforts to revise state codes and local ordinances. Since 1983, Washington State has required gender-neutral language in all new pieces of legislation, and the state is also undertaking an extensive revision process to modify all existing state statutes dating back to Washington’s founding in 1854. Washington is not acting in isolation, however. In 2019, the city of Berkeley in California adopted an ordinance to remove gendered language from its municipal code.[xx] The city unanimously adopted the ordinance, which will cost the city $600 to update the language. Moreover, the National Conference of State Legislatures reports that nearly half of all states have sought to revise statutory language so that it is gender neutral.

Eliminating gendered language in legislation is a step forward, but the question necessarily turns to what impact merely modifying a statute from a masculine pronoun to gender-neutral language has on efforts to advance gender equality.

According to the National Women’s Law Center, the impact may be profound. “Words help shape our perception about what opportunities are available to women and men.”[xxi] Put simply, if women are not recognized in the language of the law, then society and the legal community may struggle to view women’s protections and rights under the law. And in some cases, the absence of gender-neutral language in the statute may bar relief, absent an appeal to a higher court. The examples of this principle are reflected through the cases that Ruth Bader Ginsburg argued during the 1970s.

Idaho Laws Moving in the Wrong Direction

Though gender-neutral language in Idaho legislation presents an important if not subtle avenue through which to advance gender equality, an equally important area is within the purpose of the legislation. Two bills recently enacted in the Idaho Legislature suggest that though the rights of women have progressed in many ways since Reed, in other ways pursuit of these rights remains an area of concern.

Consider Idaho’s Medical Consent and Natural Death Act. Idaho Code section 39-4510 authorizes any “competent person” to execute a living will. Section 39-4509 defines the statement of policy for the legislation:

The legislature recognizes the established common law and the fundamental right of competent persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn. The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits.[xxii]

Yet while this legislation explicitly recognizes that any competent person has a fundamental right to control decisions pertaining to medical care, section 39-4510 provides that pregnant women may not enact a living will. A lawsuit is pending to challenge the language excluding pregnant women from the statute on the basis the bill discriminates on gender. The lawsuit, originally filed in 2018, was brought by Legal Voice and Compassion & Choices on behalf of four Idaho women. The groups argue that women do not lose their constitutional rights because they are “diagnosed as pregnant,” which is language from the statute. In late 2019, a federal court rejected a motion by the State to dismiss the case. The case remains pending.[xxiii]

More recently, Idaho took an affirmative—if not currently hypothetical—step toward impeding a woman’s fundamental right to privacy related to legislation that would criminalize abortion.[xxiv] Governor Little signed the law in March of this year and it would become effective should the United States Supreme Court overturn Roe v. Wade. As it stands, the bill makes no exceptions for a woman seeking an abortion in cases of incest or rape and permits the prosecution of doctors who would perform abortions.

ConclusionReed vs. Reed changed the legal landscape for women in Idaho and throughout the nation; the case served as a starting point for Ruth Bader Ginsburg to argue that sex discrimination should be viewed as a suspect class. In many ways, nearly 50 years later, Reed remains just that: a starting point. Though the treatment of women under the law is markedly different now than it was in 1971, many women still do not see themselves as equally protected. And some women would be forgiven for questioning whether Idaho’s legislation is advancing the treatment of women, or whether it is retreating to a time when women did not have the right to privacy for abortion or the right to decide on end-of-life of care. Idaho has come a long way. It has further to go.

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[i] Reed v. Reed, 404 U.S. 71, 73 (1971).

[ii] Emily Martin, Reed v. Reed at 40: A Landmark Decision, Nat’l Women’s Law Ctr. (Nov. 16, 2011), https://nwlc.org/blog/reed-v-reed-40-landmark-decision/.

[iii] Kathy Barnard, Women’s Suffrage Right to Vote Came Early in Idaho, Lewiston Tribune (Jul. 3, 1990), https://lmtribune.com/feature/womens-suffrage-right-to-vote-came-early-in-idaho/article_d6e0296a-ba14-59fe-87e4-2789689dcf38.html.

[iv] Donna Yule, Even 100 years after the right to vote, women still fighting for rights, Idaho Statesman (Jan. 16, 2020), https://www.idahostatesman.com/article239242533.html.

[v] Idaho Code Ann. § 18-7303 (West 1972) (recognizing the denial of the right to work based on sex as discrimination).

[vi] Idaho Code Ann. § 67-5909 (West 2005).

[vii] Luis Acosta, Inheritance Laws in the Nineteenth and Twentieth Centuries,Library of Cong. (Mar. 2014), https://www.loc.gov/law/help/inheritance-laws/historical-inheritance-laws.pdf.

[viii] Scott v. Harkness, 6 Idaho 736, 736, 59 P. 556, 556 (1899).

[ix] Id. at 736, 59 P. at 557.

[x] Idaho Code Ann. §§ 17-201(7), 17-807 (1932).

[xi] C.S.§ 4668 (1919).

[xii] State v. Kelley, 39 Idaho 668, 668, 229 P. 659, 661 (1924).

[xiii] Idaho Code Ann. §28-101 (1932).

[xiv] Reed v. Reed, 1971 WL 133596, at *8 (U.S., 2004).

[xv] Betsy Russell, A look back at Idaho’s role in the ERA ratification saga, Post Register (Dec. 16, 2019), https://www.postregister.com/news/government/a-look-back-at-idaho-s-role-in-the-era/article_6b4c6b1d-9770-5473-a889-ec749517b68f.html#:~:text=In%201972%2C%20Idaho%20was%20among,31%2D4%20in%20the%20Senate. 

[xvi] Betsy Russell, Utah’s Recent Ratification of Equal Rights Recalls Idaho’s History, Spokesman Review (Dec. 15, 2019), https://www.spokesman.com/stories/2019/dec/15/eye-on-boise-utahs-recent-ratification-of-equal-ri/.

[xvii] Stephanie Curry, Erasing Women—The ERA, Family Policy Alliance of Idaho, https://familypolicyalliance.com/issues/tag/era/ (last viewed Oct. 18, 2020).

[xviii] Id.

[xix] H.B. 465, 61st Leg. (Idaho 2016).

[xx] Caitlin O’Kane, City to ban gendered language like “manhole,” “manpower” and “firemen,” CBS News (Jul. 18, 2019), https://www.cbsnews.com/news/berkeley-california-to-ban-gendered-language-like-manhole-manpower-and-firemen/.

[xxi] Brian Peteritas, Gender-Neutral Language Written into State Laws,Governing (Apr. 2013),https://www.governing.com/topics/politics/gov-gender-neutral-language-rewritten-into-state-laws.html.

[xxii] Idaho Code Ann. § 39-4509 (West 2012) (emphasis added).

[xxiii] Rebecca Boone, Idaho sued over pregnancy exclusion in advanced directive law,Assoc. Press (May 31, 2018),https://apnews.com/article/824dae6a669147cd88d53c0e690adf09.

[xxiv] S.B 1385, 65th Leg. (Idaho 2020).

By David W. “Tony” Cantrill

I have been executive director of the Idaho Judicial Council for nearly 5 years and have practiced law for 45 years before that, so I do have some idea of what it’s like. The method for selection of magistrates is far different than selecting district court judges.

The Idaho Judicial Council interviews every applicant, asks for input from members of the bar, and goes deep into an applicant’s background. There are about 50 district court judges in the state. By contrast, there are about 100 magistrate judges in Idaho. The magistrate judges are the work horses of the state, in the sense that they preside over family law, probate, and misdemeanors cases, as well as civil cases of less than $10,000.

The selection of magistrate is overseen by the Magistrates Commission. Every county is allowed one magistrate. The range at present is one to twenty-three. Each district has a magistrate commission and there are seven districts statewide.

Idaho Code § 1-2203 provides that the Magistrates Commission be made up of (1) the chairman of the board of county commissioners of each county in the district or a member of such board as designated by the chairman, (2) the mayors of three municipalities, one of whom shall be the mayor of a city with more than 10,000 population, (3) two qualified electors in the district to be appointed by the governor, (4) the administrative district judge of the district, (5) two attorneys nominated by the county clerk and appointed by the administrative judge, (6) a magistrate judge, and (7) a county clerk from within the district. The attorneys may serve up to 6 years. There are other requirements, but they do nothing to limit or expand the membership of the commission.

A unique aspect of the Magistrates Commission is that it does not interview every applicant, rather only those it believes are viable. There were some who felt that in the earlier days of court reform, the selection was biased in favor of who you knew–but I can assure you that is no longer true.

After a new magistrate is selected and sworn in, he comes under the umbrella of the Judicial Council and I meet him for the first time. Even then it may be some time before we talk. I have found the new magistrates to be courteous, hard-working individuals who for the first time are confronted with the Code of Judicial Conduct, simple in its format but devilishly difficult in application. Almost universally, the question of disqualification arises. A judge has a duty to preside over cases when possible, but increasingly there are some who are married to lawyers and how do they handle that? It’s not easy but we always make accommodations. What about ex-law partners? The guideline is one year but it can be longer or shorter depending on the situation. Ada County with about 60 lawyers in the criminal division alone is far different than Lewis county with maybe one.

Overall, my work with judges has been pure pleasure. They listen and act accordingly. We do not socialize but instead acknowledge that we both have a job to do and want to do it well. Discipline is most unpleasant and will have to wait for another day. It does occur but on a very infrequent basis. Lastly, most of what I do is confidential and we can’t have it any other way. The overwhelming complaints are frivolous and only arise because the complaint lost. But I can tell you this, if a judge violates the Code and requires discipline in some form it will happen no matter who it is.

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David W. “Tony” Cantrill is an Idaho native and resides in Boise, Idaho. He was born and raised in Pocatello. Mr. Cantrill graduated from Pocatello High School, received his Bachelor of Arts from Idaho State University in 1966 and received his Juris Doctorate in 1970 from the University of Idaho College of Law. He was in the Army, including the reserves from 1963-69. In 1970, Mr. Cantrill entered private practice in Boise concentrating in litigation. He has tried cases in five states and almost every county in the state of Idaho. Mr. Cantrill is a member of the Idaho State Bar, American Inns of Court, Defense Research Institute, Idaho Association of Defense Counsel, and is a Fellow of the American College of Trial Lawyers. He has been married to his wife, Susan, for 49 years, has three children and numerous grandchildren. Mr. Cantrill joined the Idaho Judicial Council as its Executive Director in December of 2015.

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.

“TO SLEEP, PERCHANCE TO DREAM”

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.

“WHETHER ‘TIS NOBLER IN THE MIND TO SUFFER THE SLINGS AND ARROWS”

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.

“OR TO TAKE UP ARMS AGAINST A SEA OF TROUBLES”

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.

“ ‘TIS A CONSUMMATION DEVOUTLY TO BE WISHED”

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.

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By Hon. Michael J. Oths

The Idaho Magistrate Judges Association (IMJA) is the voice of Idaho’s limited jurisdiction court judges.  IMJA, through its officers, has been invited to address the Judiciary Committee of each branch of the Legislature on an annual basis.  In years past, the IMJA has compiled demographic data about its membership, for the benefit of the Legislative committees.  This article borrows from that research and provides a demographic history of Idaho’s Magistrates.

Idaho currently has 95 Magistrate Judges.  As you will find out next in Judge Axline’s article, in order to be appointed, candidates must be lawyers of at least five-years’ experience, at least 30 years old, and a resident and lawyer in Idaho for at least the last two years.

When the Magistrate division was created, however, being a lawyer was not a requirement.[i] Many of the early Magistrates were laypeople, including some who had previously been Justices of the Peace or Police Court Judges.[ii]   In fact, of the 60 original Magistrates appointed in 1971, 40 were non-lawyers.

In 1982, the Legislature amended the statute to provide that, going forward, all Magistrates must be lawyers.  By 1990, only six lay Magistrates remained in Idaho.

The last lay Magistrate to retire was the legendary Judge Mildred McClure, who served until 2001.  Judge McClure was first elected as Probate Judge from Dubois in 1962 and eventually was one of the first Magistrates in the Seventh District.

Seventh District Magistrate Linda Cook was the first woman lawyer appointed to the bench, taking her seat in 1976.  When First District Magistrate Debra Heise took her seat in January 1985, only a handful of women lawyers had been appointed, including Judge Cook, Judge Karen Vehlow, Judge Darla Williamson, and Judge Patricia Young.

As recently as January 2015, of the 50 senior[iii] Magistrates in Idaho, only six were women, comprising 12% of that segment of the bench.  As of this writing, 40 of the 50 senior Magistrates are men, meaning women are 20% of that more experienced group.  Conversely, 38% of the newer half of the Magistrate division are women.  These numbers are generally reflective of the overall Idaho State Bar.  Currently, women comprise 30% of the Idaho State Bar and 27% of the Magistrate bench.  Considering that it is rare for lawyers with fewer than 10 years’ experience to be appointed, it is noteworthy that 26% of lawyers admitted for at least 10 years are women, almost exactly the same percentage found on the Magistrate bench.

It is also interesting to study where Magistrates were before they became judges.  The last known demographic study was conducted in 2015, and showed the following:

• 52% were in private practice immediately before appointment to the bench
• 30% were county prosecutors
• 6% were city attorneys
• 5% were deputy Attorneys General
• 4% were “other”
• 3% were public defenders

The median current tenure for active Magistrates in Idaho is just under seven years since appointment.  Only 16% of Magistrates have been on the bench for more than 15 years.

Taking a snapshot of turnover on the bench is also revealing.  Of the 50 senior Magistrates as of January 2015, only 17 are still in that role.  Five have been appointed as District Judges, one is deceased, and 27 have retired.

The make-up of the magistrate bench has changed over the years, from mostly non-lawyers originally and only men, to a dedicated group of lawyers who serve as magistrates and reflect the gender demographics of the Idaho State Bar.

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[i] The initial qualification was that the person have a high school diploma or a G.E.D equivalency.  Idaho Code §1-2206(2).

[ii] In Moscow, the Police Court Judge was traditionally a third-year law student.  Veteran Caldwell lawyer Herb Rettig was the Police Court Judge while enrolled at U of I, and said that the spot was a plum part-time job for law students.

[iii] As used in this article, “senior” refers to years on the bench, not age, and it refers to active judges, not to retired judges on senior status.