Guest Opinion: Free speech rules cost us a good look at court decisions


March 2, 2014 

The recently reported medical negligence case of Nield v. Pocatello Health Services raises critical issues regarding restrictions on First Amendment rights of lawyers and judicial candidates, which should concern all Idaho citizens. Such restrictions have long been justified by the “compelling” state interest in maintaining confidence in the impartiality of the judiciary.

In his dissent in Nield, Justice Daniel Eismann accuses three other justices of being “untruthful” and questions their impartiality. The Idaho Supreme Court has sanctioned at least one attorney for far less offensive statements.

In the late 1990s, Idaho attorney John Topp was publicly reprimanded for implying that a district court judge had decided a case based on the judge’s concern about its political ramifications. The court said this was a false statement of fact rather than a constitutionally protected opinion, essentially because Topp could not have known what was in the judge’s mind, and it appeared to others that the lawyer was aware of undisclosed facts leading to his conclusion. That case raised a deep concern that Idaho attorneys exercise First Amendment rights at their peril.

The Topp decision chills the ability of judicial candidates, who by definition are lawyers, to discuss candidly the important issue of impartiality with respect to sitting judges or justices whom they are opposing in judicial elections. The Topp decision is not the end of it. Idaho also has an ethical rule applicable to judicial candidates prohibiting them from “appearing to commit” themselves on any issue “likely to come before the court.” (Idaho maintains this rule despite the fact that such “announce clauses” were struck down by the U.S. Supreme Court as a per se violation of the First Amendment more than 10 years ago.)

Hence, a judicial candidate pointing out logical flaws in the Nield dissents’ analyses of the actual issue before the Idaho Supreme Court risks sanctions, should the court ultimately conclude that he “appeared” to have “committed” himself to an issue “likely” to come before it.

Make no mistake about it; the heat that is obvious from reading the Nield opinion smolders beneath every medical negligence case. The Topp case and Idaho’s ethical rules prevent judicial candidates from discussing their views on how special interests may have an effect on the outcome of medical negligence cases as a result of subtle political influence exercised upon the judicial appointment process.

Similarly, judicial candidates would risk sanctions under Idaho’s Code of Judicial Conduct by questioning whether the Nield dissenters’ interpretation of the law violates the Idaho and United States constitutions by applying an arbitrary and unreasonably strict standard to the admissibility of expert testimony that infringes upon the role of the jury. What constitutes the “appearance” of a “commitment” to a position is clearly in the mind of the beholder, adding vagueness to the constitutional problems with Idaho’s “announce clause.”

If learned attorneys cannot draw inferences of even unconscious bias from their study of patterns of judicial decisions and share their perceptions that some judges might trim their sails to the political winds of the times, who better can?

The Nield opinion raises concerns about the Idaho Supreme Court. Unfortunately, the Topp case and Idaho’s rules imposed upon judicial candidates virtually assure that they cannot speak openly about the issue of impartiality on Idaho’s Supreme Court, or perceived flaws in existing law. What is clear is that there is a problem with a system where those at the top indulge in unrestrained speech, but deny the full exercise of free speech to those they control through the attorney licensing process and those seeking judicial office.

Wm. Breck Seiniger Jr. is a Boise attorney who announced his intention to run for the Idaho Supreme Court on Wednesday.

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