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Idaho has an exemplary process for picking judges, why fix it?

Idaho Supreme Court - 2021
Otto Kitsinger
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Idaho Supreme Court building in Boise on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)

Why is there an effort in the final hectic throes of the legislative session to make material changes to the time-tested appointment process, writes guest columnist Jim Jones.

During his 12 years as Idaho governor, Butch Otter tells me he appointed 56 judges for Idaho’s judicial system – five justices of the Supreme Court, all of the current judges on the Court of Appeals and over 45 District Court judges. He regularly received praise from other governors for the high quality of Idaho’s judiciary, which Otter attributed to the selection process through the Idaho Judicial Council.

Idaho established the Judicial Council in 1967 to ensure a nonpartisan selection process for trial and appellate judges. It has been remarkably successful in producing highly-qualified, impartial jurists. Why, then, is there an effort in the final hectic throes of the legislative session to make material changes to the time-tested and proven appointment process? It should be mentioned at the outset that this opinion piece does not in any way speak for the Idaho court system and reflects just my own personal views.

Senate Bill 1382 first saw the light of day on March 7. It was thrown together without input from those who have long been involved in the judicial selection process and know how it works. The bill was sent to the Senate’s amending order on March 15, despite concerns raised by the Supreme Court. SB 1382 would have infused a measure of politics into the judge-selecting process, while slowing it down and discouraging interested lawyers from applying. No need to discuss the specifics because an even worse replacement materialized out of nowhere on March 16 and the received approval of the House Judiciary, Rules and Administration Committee the very next day.

Under current law, the State Bar (Idaho’s attorney licensing agency) appoints two lawyers and a district judge to the council and the governor appoints three non-attorney members, all six of which are subject to Senate confirmation. The chief justice serves as a seventh member.

Under the new bill, House Bill 782, the council would be increased from seven members to 11. The State Bar could no longer make appointments, but would recommend to the governor three different attorneys from four different practice areas – civil defense, civil plaintiff, criminal defense and criminal prosecution. The governor would appoint one lawyer from each of the four practice areas. Those behind this legislation envision a council consisting solely of litigators. The hundreds of Idaho lawyers doing anything else, including general practitioners in small towns across the state, could not serve. I would never have been eligible to serve on the council in my 55 years as an Idaho lawyer.

House Bill 782 makes a number of other unwise changes in the selection process, but they pale in comparison to the wide leap the bill then takes into potentially unconstitutional territory. It jumps from amending the Judicial Council statutes to raising salaries of judges, a matter generally handled in a separate bill pertaining to the workings and compensation of judges. HB 782 may well violate the single subject matter provision of Article III, section 16 of the Idaho Constitution, but that would be a matter for court determination if the Legislature approves this rashly conceived bill.

Perhaps worse than the possible constitutional infraction is the appearance of strong-arming the courts with the threat of refusing to raise judicial pay this year. Tying the two issues together in one piece of legislation conveys the impression of trying to silence the Supreme Court from voicing legitimate concerns regarding the effect of HB 782 on judicial recruitment. Certainly, the court is entitled to express its concerns about legislation that seemingly came out of nowhere from sponsors who did not consult with the Judicial Council or seek input from the court system. The message to the courts seems to be to shut up and take your lumps or your pay raise is out the window. Not exactly extortion, but …

The basic fact is that Idaho has been nationally recognized for the excellence of its judicial system, which is a function of the manner in which judges are selected. If the system is working well and producing great results, why in the world would we want to “fix” it?

House Bill 782 is a serious threat to our outstanding court system.