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September 12, 2002


The opinion of the court was delivered by: Hedges, United States Magistrate Judge.



Anthony R. Mautone ("Mautone") is a part-time United States magistrate judge sitting in the District of New Jersey. On March 18, 2002, Mautone was substituted in as counsel for defendant New Jersey Transit Rail Operation, Inc. Thereafter, plaintiff Gerard Dembowski made an informal application to disqualify Mautone. I denied that application pursuant to Order filed on March 6, 2002. In doing so, I relied on the "Conflict-of-Interest Rules for Part-time Magistrate Judges."

Plaintiff has now made what he styles an "in limine" motion to have the trial of this civil action transferred out of the District of New Jersey or, in the alternative, to disqualify Mautone. The motion has been referred to me by Judge Hayden. I have considered the papers submitted in support of and in opposition to the motion.*fn1 There was no oral argument. Rule 78.


Basis for the Motion

Plaintiff has a rather curious basis for his motion. Plaintiff "now concedes" that Mautone is authorized to sit as a part-time magistrate judge and to engage in the private practice of law in the District where he sits. Plaintiff then argues that, "this situation creates, at the very minimum, the appearance of gross impropriety." Paragraph 3, Motion. According to plaintiff; the trial judge may "subconsciously favor Mr. Mautone and make rulings that benefit he and his client." Paragraph 4, Motion. Plaintiff also argues that, if a juror somehow learns that Mautone is a part-time magistrate judge, "it is very possible that the juror will give undo [sic] and unwarranted credence to defendant's case, and to the credibility to [sic] its witnesses, because the defendant is represented by a member of the judiciary." Paragraph 5, Motion. Plaintiff concludes his argument with the following:

While * * * it is conceded that Mr. Mautone is neither acting improperly or illegally because he is acting in accordance with federal statute, it is none the less, respectfully submitted that the statute permitting a part-time United States Judge to represent clients in the same judicial district where he serves a judicial function, is unconstitutional.
The Constitution of the United States, Amendments V and XIV, guarantee every citizen the due process of law. The courts of the United States have consistently held that this constitutes the right of citizens to have fundamentally fair and impartial judicial proceedings.
For the reasons set forth above, particularly the possibility of subconscious decisions favorable to the defendant and its counsel because of its counsel position as a member of the federal judiciary, and/or partiality of a juror for the defendant if it learns that it is being represented by a member of the federal judiciary, plaintiff cannot receive a fundamentally fair and impartial trial in the District of New Jersey so long as Mr. Mautone is representing the defendant. [Paragraphs 6-8, Motion].

The Position of Part-time United States Magistrate Judge

The Federal Magistrates Act, 28 U.S.C. § 631 et seq. ("the Act"), authorizes the creation of both full-time and part-time United States magistrate judges. The Guide to Judiciary Policies and Procedures ("Guide"),*fn2 discusses the latter position in Volume III, Chapter X, Part C(3)(J), in pertinent part, as follows:

The Federal Magistrates Act states a preference for the creation and maintenance of a system of full-time magistrate judge positions. Sec 28 U.S.C. § 633 (a)(3). Where there is insufficient judicial business to make a full-time magistrate judge position "feasible or desirable' at given locations, the Act authorizes the Judicial conference to establish part-time magistrate judge positions. While the Federal Magistrates Act authorizes the district courts to assign a full range of duties to part-time magistrate judges, the work of most part-time magistrate judges is generally limited to: (1) the conduct of preliminary proceedings in criminal cases, such as the issuance of warrants and the conduct of initial appearances; and (2) the trial of petty offenses and other misdemeanors, particularly those arising on federally-administered lands, such as military installations and national parks and forests.
In determining whether, and to what extent, to assign duties under 28 U.S.C. § 636 (b) and (c) to part-time magistrate judges, consideration should be given to: (1) the application of the pertinent conflict-of-interest rules for part-time magistrate judges; and (2) the amount of compensation which has been authorized by the Judicial Conference for the individual part-time magistrate judge positions in the district. A part-time magistrate judge who is assigned "additional duties" under section 636(b) or who conducts civil consent trials under section 636(c) may not appear as counsel in any case, civil or criminal, in the district court for which the magistrate judge is appointed. In addition, the Federal Magistrates Act states that a part-time magistrate judge is authorized to try civil cases only if the chief judge of the district court certifies that no full-time magistrate judge is reasonably available in accordance with guidelines established by the judicial council for the circuit.

Consistent with the Guide, Mautone presides over criminal and quasi-criminal matters which occur on federal installations in the State of New Jersey. He normally sits at these installations. Mautone is not assigned any "additional duties" under Section 636(b) or (c).

The Act distinguishes between full-time and part-time magistrate judges in their "character of service." 28 ...

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