As the newest judge on the U.S. Court of Appeals for the 1st Circuit, Maine lawyer William Kayatta Jr. has joined his colleagues in tackling  cases from New England and Puerto Rico, the court’s areas of jurisdiction.
But unlike his colleagues, Kayatta is also spending part of his time handling a knotty dispute over water rights between Kansas, Nebraska and Colorado, far from the 1st Circuit’s turf.
That’s because, in a rare if not unprecedented move, Kayatta is continuing to serve as the U.S. Supreme Court’s special master in the water litigation, even as he takes on his share of the caseload as a judge on the Boston-based appeals court.
Kayatta, who was appointed as special master while in private practice in 2011, has kept the position with the apparent approval of Chief Justice John Roberts Jr. and 1st Circuit Chief Judge Sandra Lynch. In the Senate questionnaire he filled out in January as a nominee to the 1st Circuit, Kayatta stated his intention to continue as special master with their consent, "if the action is not completed at the time I join the court." Kayatta declined to be interviewed for this story.
Special masters act as the eyes and ears of the high court in so-called "original jurisdiction" cases – disputes between states, usually over borders or water rights, in which the Supreme Court is the tribunal of first, not last, resort. Because there is no trial or appellate record for the high court to review, the court appoints a special master to gather and analyze the facts and make recommendations to the justices – which the states involved can then contest.
Until 1980, special masters were often drawn from the ranks of senior or retired judges or justices. Justices Charles Evans Hughes, Tom Clark and Stanley Reed served as special masters after their tenures on the Supreme Court, as did senior circuit judges Wade McCree and Jean Breitenstein, among others.
But experts in the field could not recall an active, sitting Article III judge serving simultaneously as a Supreme Court special master in the modern era, if ever – especially a judge beginning his tenure. "This seems like a unique situation," said Joseph Zimmerman, a political scientist at the University at Albany, State University of New York, who authored a book on the court’s original jurisdiction cases. "It is surprising, given the current workload of judges."
In the last three decades, with growing appeals court caseloads, senior judges have been in demand to help their courts reduce backlogs, so have not been appointed by the Supreme Court to serve as special masters.
Most special masters now come from private practice or academia. Pierce Atwood, the Portland, Maine law firm where Kayatta was a partner until joining the 1st Circuit, has dominated this legal niche in recent years, with seven appointments as special master going to Pierce Atwood partners Vincent McKusick, Ralph Lancaster Jr. and, in 2011, Kayatta.
Kayatta can manage both his judicial and special master duties "with one arm tied behind his back," said Lancaster, his former law firm colleague.
The water dispute Kayatta is handling has been on the high court’s docket in some form since 1998. McKusick was the first special master in the case, ending his service when a settlement was reached in 2003. But in 2010, Kansas filed a new complaint against Nebraska, reviving the dispute. The court appointed Kayatta as special master in April, 2011.
The controversy involves the use of water from the Republican River, which originates in Colorado, flows into Kansas, then Nebraska, and back again into Kansas.
Since his appointment as special master, according to the Supreme Court docket, Kayatta and his firm have been paid $605,441 in fees and costs. That amount is divided among the three states, with Kansas and Nebraska paying 40 per cent each and Colorado 20 per cent. The latest order for payment was issued by the high court on April 15, but covers work done between August 2012 and March 7 this year, just before Kayatta was sworn in as a judge.
In Kayatta’s final fee motion to the Supreme Court, dated March 7, Kayatta said he had spent 350 hours on the case since the previous August, and was billing his time at $490 an hour – less than his standard rate as a practitioner, which was $550 an hour. He told the court that once he joined the 1st Circuit, "any further work I perform in this action will not result in any further fees to the parties." He predicted he would issue a final report on the case in September.
Judicial ethics expert Stephen Gillers at New York University School of Law sees no problem in Kayatta’s dual service, especially if he has stopped receiving fees from the states. "It is odd to have a circuit judge serve as a special master, but that alone does not cause me concern, and efficiency argues in favor of continuing the appointment after Kayatta took his seat," said Gillers.
Fees became a minor issue for Charles Evans Hughes in 1930. He had served as the court’s special master in a Great Lakes dispute in the late 1920s, during the gap between his tenure as associate justice and chief justice. The question of how much he should be paid for his work as special master came up after he became chief justice in 1930. Hughes left the court’s conference room so that his colleagues could decide on his fee "unembarrassed by his presence," according to Merlo Pusey’s 1951 biography of Hughes. His brethren set Hughes’ fee at $30,000, which he accepted.
Kayatta’s decision to stay on as special master appears to be sitting well with the parties to the Republican River dispute. "One advantage is that he now has a federal paycheck" and won’t be reimbursed for his working hours by the states, said John Draper of Montgomery & Andrews in Santa Fe, New Mexico, who represents Kansas in the litigation. "That’s a nice present to the parties."
Tony Mauro can be contacted at email@example.com.