Idaho’s judiciary is under attack. Lawyers must defend the rule of law

My message to the Idaho State Bar Association and all other dedicated to the rule of law in Idaho:

During the final throes of the 2023 legislative session, I heard a startling and disquieting comment from a person closely involved in working on legislation affecting the judiciary. It was that the courts had “no friends in the Legislature.” For the second year in a row, salaries for district and appellate judges were not increased commensurate with other state employees, several unwarranted changes were made to the Idaho Judicial Council and other changes that threatened the non-partisan nature of judicial selection were under serious consideration. It was a wake-up call. It became clear that lawyers and other citizens committed to the rule of law must stand up and work toward protecting the independence, competence and impartiality of the Idaho judicial system.

The Supreme Court had a good rapport with legislative leaders during most of my tenure on the Court. Those leaders generally responded to the recommendations of the Court regarding judicial selection and administration. Leaders like former Senators Bart Davis, Denton Darrington and Brent Hill and House Speaker Bruce Newcomb were committed to judicial independence and the need to adequately compensate judges. That rapport began slipping away with the retirement of those leaders and has largely disappeared in the last couple of years.

Several factors have played a part in the Legislature’s change of attitude besides those retirements. Some legislators simply dislike judges who don’t agree with them. Many confuse the federal court with our state courts, blaming state judges for decisions on hot-button constitutional issues that federal judges are called upon to make. Many legislators do not have a clear understanding of the role the judiciary plays in our system of checks and balances. Nothing is more galling to them than a court decision overturning a legislative enactment.
Legislators were particularly enraged by the Supreme Court’s 2021 decision striking down their statute that made it practically impossible for the people to pursue an initiative or referendum. The Court issued a well-reasoned opinion affirming the constitutional right of Idahoans to make laws they want when the Legislature refuses to act. Legislators retaliated in 2022 by denying cost-of-living pay raises for our judges. The decision was frequently mentioned by legislators, both off and on the floor.

The Legislature voted 7% cost-of-living pay increases for most state employees last year, including court staff members, but failed to provide any increase for Idaho judges. Legislators did approve a bill that made substantial changes to the selection process for district and appellate court judges, tying it to a judicial pay increase for judges. The bill would have increased high court salaries by only 2%. The Governor vetoed the bill because of obnoxious changes to the judge selection process. Even though legislators could have passed a separate pay raise for judges, they refused to act.

Legislative observers thought the lawmakers would correct their ill treatment of judges in the 2023 session, but that was not in the cards. This January, Rep. Bruce Skaug, Chairman of the House Judiciary Committee, said the judges “were robbed” last year, but the Legislature took no action to require the robbers to provide restitution. The Legislature did approve a pay increase for judges this year, boosting pay for Supreme Court Justices by 3%, while all other state employees got 4%. It was another signal of legislative disapproval. Court of Appeals judges received a 4.5% increase, district judges got 4.7% and magistrate judges got 8.2%.

Legislators disregarded the salary separation that the Court deems essential to encourage recruitment of judges for district court positions. This year’s pay bill reduced the separation between district and magistrate judges from $12,000 to $8,000. District court judges generally have more experience, have a heavier caseload, work longer hours and must face the prospect of a contested election every four years. Those factors require a larger salary separation between them and magistrates as a recruitment incentive. Since 2018, an average of 7 applicants applied for 20 district court openings, while magistrate judge openings from 2010 to 2021 averaged twice as many applicants. Only 4 lawyers applied for a district court slot in Ada County this year.

The Legislature has long been aware that recruitment for the district court has been hampered by the low statutory salaries. The current salary for Idaho’s district judges, who handle felonies and heavy-duty civil cases, ranks 49th in the nation, as compared to other states’ general jurisdiction judges. This year’s salary bill will just make it more difficult to get quality applicants to step forward for the district court.

With the 3% increase this year, Supreme Court Justices will make $165,212, which equates to about $79 per hour. In comparison, the Attorney General’s new Solicitor General is paid almost $82 per hour. The Legislature has paid upwards of $500 per hour for lawyers it has hired in the last several years to represent it in cases challenging some of its legislative enactments. District and appellate judges take a substantial pay cut to serve the people. They need to be compensated adequately if we hope to keep the remarkable judiciary that we currently have.

The decision of Justice Stegner to step down from the bench was likely related to the Legislature’s baleful treatment of the judiciary. My attention was called to an article posted on Facebook regarding his decision and the issue of inadequate judicial pay. It had drawn over 250 comments, most of which were insulting, disturbing or just plain wrong–such as, “where did all that money go when they defunded the cops.” Or, in a more troubling vein, “It’s better to retire now. Then be at the wrong end of the people’s second amendment. Of a judicial system for money not liberty and justice for all.” The comments reflected the ignorance and animus exhibited by many lawmakers.

Regardless of what legislators or their constituents may think, Idaho has a truly outstanding judiciary, thanks to procedures designed to ensure competent, non-partisan appointments. Magistrate judges are appointed to four-year terms by regional commissions and thereafter run in non-partisan retention elections within their judicial district. Idaho established the Idaho Judicial Council in 1967 to ensure a non-partisan selection process for district and appellate judges. It has been remarkably successful in producing highly-qualified, impartial jurists. Most district court and appellate judges are appointed by the governor, who selects from a list of 2-4 candidates screened and recommended by the Judicial Council. Those judges must then run for re-election in the low-turnout May primary to keep their position.

During his 12 years as Idaho Governor, Butch Otter appointed over 55 judges for Idaho’s judicial system–5 Justices of the Supreme Court, 5 judges for the Court of Appeals and over 45 district court judges. He regularly received praise from governors of other states for the high quality of Idaho’s judiciary, which Otter attributed to the Judicial Council selection process. Former Justice Roger Burdick received similar comments from chief judicial officers of other states during his 8 years as Idaho’s Chief Justice.

Despite the fact that nobody can find real fault with the way the Judicial Council has functioned or the results it has produced, the Legislature persists in its belief that the Judicial Council needs fixing. This year, the Supreme Court participated in fashioning a proposal to modify the Council, apparently out of concern about what might be produced if legislators were left to their own devices. The result was Senate Bill 1148, which eliminated the Bar’s ability to appoint two nonjudicial attorney members. The Bar will henceforth make three recommendations for each of those positions and the Governor will select among them. The legislation allows five of the nine members to be from the same political party, which injects an element of partisanship into the Council. Several other troublesome tweaks were made, but they are of lesser concern.

Much more concerning was Senate Bill 1157, which would have required judges to fill out their full elected term in order to take advantage of the Plan B retirement option. Plan B, as set out in Idaho Code section 1-2001(2)(b), allows a district or appellate judge to retire during their elected term, but still add to their retirement benefit. They agree to perform 60 days per year of judicial service, without pay, for five years. Their compensation is five years of accumulations to their retirement plan. That benefits taxpayers because retirement benefits are not paid out of the state’s general fund.

When the workload in a particular area exceeds the capacity of the local district judge, but there is not yet a need for a new full-time judge, Plan B is a great way to handle the additional work. Plus, when Plan B judges retire during their term, their replacements enter the system through the Judicial Council process, rather than the electoral process, ensuring that they are thoroughly vetted for competence, impartiality and proper judicial demeanor. The reason legislators want to make Plan B unavailable to judges who do not fill out their entire term, is to force new judges to enter the judiciary through the electoral process, rather than through the Judicial Council—a truly bad idea.

I entered the judicial system through the electoral process, which was fairly easy for me because I had previously run three bruising campaigns for political office. The Judicial Council was established to remove judiciary selection from the political arena. Judges should be impartial arbiters, not politicians. I’ve watched exceptional judges go through tough campaigns and it is painful just watching from the sidelines. If you look to states like Nevada, where judicial candidates slug it out in nasty campaigns fueled by hundreds of thousands of dollars from who knows where, it is an ugly spectacle. Even fewer Idaho attorneys who have proven their competence in the profession would be willing to seek a judicial position in mid-career, if they had to run in such an election.

Make no mistake, there will be some version of Senate Bill 1157 back before the Legislature next session. One of Idaho’s political parties has called for “the election of judges in a partisan election process.” That would cause serious injury to our court system and adversely impact the rule of law in Idaho.

With all of that being said, what can be done to protect the Idaho judiciary and our legal system? While the Idaho Bar can take positions on important issues in the legal arena, it has developed a consensus process for doing so. And it has not typically engaged in directly lobbying the Legislature, nor would that be well advised. The judiciary can offer advice to the Legislature on matters affecting the court system but, were it to engage in trying to influence votes, the effect would be counter-productive. Judges cannot be seen as trying to inject themselves into the legislative process.

If Bar members want judges who are chosen for their competence and who have the courage to scrupulously follow the law, they need to come to the defense of our marvelous judicial system. When the Legislature is considering bills to “rein in the courts,” lawyers should testify, contact their own legislators and others they may know, and speak out publicly to point out flaws in the legislation or how it would adversely affect the rule of law. We should help educate the public at large about the legal system. When legislators or others launch vicious attacks on the courts or individual judges, lawyers should speak out in the public arena to set the record straight. Lawyers can explain to their clients, legislators and community groups that Idaho courts make very few decisions on hot-button issues, but that every-day business and personal disputes are the bread and butter of our court system. Fair and impartial decisions in those matters must be handled by competently-selected, adequately-compensated, fair-minded jurists, instead of politicians in robes who need a job or have an agenda.

The legal profession cannot be a bemused bystander when the legal system is under attack. Judges cannot protect themselves or the judiciary as a whole. Those who make their living from the law and have a vital stake in the legal system have the responsibility to shoulder that burden.

I am establishing a network of attorneys and others dedicated to the rule of law, who will participate in educating legislators on legal issues affecting the judiciary. This effort is without the knowledge or support of the court system. I do not anticipate that it would take a significant commitment of time on anyone’s part. Those who wish to participate would receive alerts regarding important legislative measures relating to the courts or Judicial Council and suggested action to respond. Anyone knowing or having their legislator on the judiciary or state affairs committees of either house would be especially helpful. Just explaining to a legislator how a proposal may adversely impact the courts can help save the day. Most of these folks have little knowledge of the courts and how they operate. They often vote based on recommendations from interest groups. Lawyers have expertise and can have a real impact. They just need to be organized and willing to make a modest commitment of time during the legislative session.

Anyone interested in being part of the effort to stand up for the judicial system can contact me at [email protected]. My contact information is also in the Bar’s attorney directory. We can keep our court system intact by working together.

Jim Jones is a graduate of Northwestern University School of Law, class of 1967. He joined the Idaho State Bar that same year. He served 8 years as Idaho Attorney General (1983-1991) and 12 years on the Idaho Supreme Court (2005-2017).

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