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Federal judges make unprecedented decision to oust Utah magistrate

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Senior city attorney Evelyn Furse, representing Salt Lake City, appears before Judge Robert Hilder at the Matheson Courthouse on Wednesday, Feb. 9, 2011.

In this file photo, Evelyn Furse appears in court representing Salt Lake City on Feb. 9, 2011. Furse, now a federal magistrate, will not retain her seat on the bench after judges in U.S. District Court for Utah declined to reappoint her to a second term.

Francisco Kjolseth

SALT LAKE CITY — A federal magistrate in Salt Lake City won’t retain her seat on the bench after judges in U.S. District Court for Utah declined to reappoint her to a second term in an unprecedented decision.

The vote to not keep Magistrate Judge Evelyn Furse is a first for a federal court in Utah and apparently in the six states that make up the 10th Circuit Court of Appeals. Furse will serve out the remainder of her eight-year term that expires April 30, 2020.

The court has not made public the reasons for her dismissal.

Reached by telephone in her office, Furse said it was best that she not comment.

University of Utah law professor and former federal judge Paul Cassell did not want to comment on the reappointment issue one way or the other, but noted that the decision is very unusual and magistrate judges are almost invariably reappointed.

Magistrate judges serve at the pleasure of district judges, who are appointed by the president for life. Magistrates handle misdemeanor crimes, conduct preliminary proceedings in criminal cases, including arraignments and detention hearings, and oversee settlement conferences in civil cases and other duties assigned by district judges.

Federal rules call for district judges to take a preliminary vote on whether to consider reappointing a magistrate. If the court decides to reappoint, it creates a merit selection panel of lawyers and community members to evaluate the magistrate.

The court must post a notice online or in a local publication soliciting comments from lawyers and the public. The panel reviews the comments, which are kept secret, and considers other evidence regarding the incumbent’s character, judgment, legal ability, temperament and commitment to equal justice under the law. The panel may also interview the magistrate judge.

In Furse’s case, the district judges initially voted to reappoint her before creating the panel. The panel, after reading the comments and interviewing Furse, submitted a report to the judges and recommended reappointment.

The judges, however, voted against keeping her for a second term. The judges’ reasons are confidential and there is no appeals process, said Mark Jones, U.S. District Court clerk in Utah

“It’s just a decision district judges make in reviewing their record,” Jones said.

There are 11 federal district judges in Utah, including seven senior judges, and five magistrate judges.

Members of law enforcement criticized Furse for releasing state prison parolee Cory Lee Henderson from federal custody a few weeks before he shot and killed Unified police officer Doug Barney and wounded officer Jon Richey in January 2016.

Furse ordered Henderson to the Fortitude Treatment Center, a halfway house in Salt Lake City, after his arrest on federal drug and firearms charges. Henderson walked away from the center and later killed Barney in a shootout after a traffic accident. Police shot and killed Henderson.

Furse heads the Federal Judicial Center’s Magistrate Judges Education Advisory Committee. She also regularly conducts training on pretrial release and detention in criminal cases for both the the center and the Administrative Office of the Courts.

The Utah Bar Association is scheduled to give Furse its Professionalism Award at its fall forum Nov. 14-15.

Before becoming a judge, Furse worked as senior attorney in civil litigation for Salt Lake City. She also worked as a law clerk for now retired Utah Supreme Court Justice Christine Durham and for several law firms.

Utah will replace two magistrate judges when Furse’s term expires. Chief Magistrate Judge Paul Warner is retiring next spring.

The 10th Circuit Court of Appeals covers Utah, Colorado, Kansas, Wyoming, New Mexico and Oklahoma.