Breck Seiniger says many of his fellow Idaho lawyers have turned against him since he raised questions about his opponent's handling of a 6-year-old Idaho Supreme Court ruling, but he said "the voters get it."
Incumbent Joel Horton says the issue - that he didn't recuse himself from a case that involved the employer of his 2008 campaign treasurer - isn't even "a gray area," in part because the court had informally reached a unanimous decision before the need for a campaign arose.
"I think it comes down to experience and competence," Horton told the Idaho Statesman. "That's what the voters ought to be looking at."
Both men say fairness in the state's highest court is a top issue, and both use sports analogies.
"For 20 years, all I've tried to do is call cases as fairly as I can," said Horton, who has 13 years on an Idaho District Court bench and seven on the Supreme Court. "I really view judging as umpiring. You call balls and strikes fairly; you don't root for one team or another.
"My opponent Breck Seiniger says root for the little guy ... but we're not supposed to root for the little guy or any guy."
Seiniger said "the playing field isn't as level as it should be."
"I think there has been a shift in our court over the years," the challenger said. "It has become more and more anti-plaintiff" and receptive to the powerful.
Seiniger said his role as a lawyer, handling mostly personal-injury litigation, is to represent average Idahoans and make sure they get a fair shake. Pretrial procedures have grown oppressive, he said, making it prohibitively expensive and time-consuming for people to pursue justice.
"They have the right to be heard by a jury," he said. "They may not have the right to win, but they have the right to be heard.
"Horton casts me as a personal injury lawyer who wants to tip the scales of justice, but I'm not favoring one side or another."
THE CASE IN QUESTION
Supreme Court justice is a nonpartisan position on the May 20 ballot that also hosts party primaries. Terms run six years.
Horton was appointed in 2007 and elected by a narrow margin in 2008.
In February of that year, the high court heard an appeal involving Simplot Corp. and a lawsuit by asparagus farmers. That March, Horton chose as his treasurer an old friend from law school, Dave Spurling, associate general counsel for Simplot (but not an attorney on the court case). Horton's written opinion in the case was released in May.
Horton said there was no conflict because the five justices had agreed on the ruling in February, before he learned he had a challenger and would need to campaign. That delay between decision and formal opinion is common, he said.
Seiniger calls that "rubbish," saying that justices can change their minds after the initial "straw poll" and even in the first few weeks after the opinion is published.
And he points to a Spokesman-Review article in which a judicial ethics expert from Indiana University said Horton should have disqualified himself because it could create a public perception of impropriety, something judges are cautioned against in their codes of conduct.
"I don't think the judge is being corrupt," law professor Charles Geyh told the Spokesman-Review, but "I don't think it's unfair of his opponent to call this out."
That calling out has taken the form of numerous public statements by Seiniger and prominent advertisements in the Statesman and other Idaho newspapers proclaiming a "Simplot Connection."
Asked whether hindsight might prompt him to act differently, Horton said: "The only reason I would do something different is that two opponents (Seiniger and 2008 challenger John Bradbury) have tried to bash me with it.
"Did I have an ethical duty to recuse myself? Absolutely not. In the gray areas, I recuse myself. In my opinion this doesn't come close to a gray area."
He noted that justices have "an ethical obligation to sit on the cases assigned to you ... unless there is a conflict."
"If there's a direct connection, it's a no-brainer, but this is a connection to somebody who has a connection to someone who has a connection," he said. "I don't think it should be an issue."
Horton's not alone in that opinion. Lt. Gov. Brad Little sent out a letter April 9 urging support for Horton in the wake of Seiniger's "mischaracterization" and impugning of the justice's integrity.
Seiniger received numerous emails and other communication from lawyers reviling his raising of the Simplot Co. case.
He figures that backlash is to blame for some bad scores for integrity in the Idaho State Bar's newly released survey gauging members' opinions of judicial candidates in contested races.
Sixty-eight of 390 responding attorneys gave Seiniger the lowest possible rating, "does not meet expectations," in the category of integrity and independence. His average rating in that category was 2.44 on a scale of 1 to 4, with an overall rating for four categories of 2.51. His highest rating was 2.7 for legal ability and experience.
Horton's average rating on the survey was in the "above average" column with 3.44, including 3.38 for integrity and 3.46 for legal ability and experience.
RACES AND ENDORSEMENTS
When Seiniger announced his run for the Supreme Court in March, he wasn't sure which of the two justices on the ballot he'd run against.
In fact, he says, he asked Secretary of State Ben Ysursa "in jest" whether he could run against both Horton and Warren Jones. Jones is unopposed.
Horton has released a long list of endorsements, including Gov. Butch Otter, Democratic governor candidate A.J. Balukoff, Little, Secretary of State Ben Ysursa, and 16 Idaho sheriffs and seven Idaho legislators.
Seiniger says he has sought no endorsements, calling them "more of a problem than they are a help."
"I think it violates the spirit of the thing," he said, holding up a list of Horton supporters. "If what you want to do is be completely impartial, do you really want a list like this?"
Horton said his experience "really gives me an advantage in evaluating the decisions that trial court judges make."
That's a great type of experience for the high court, he says, because the justices are regularly called on to evaluate trial judges' rulings and decide whether to uphold or overrule them.
Seiniger said his long and varied history as a defense and trial lawyer would make him a needed voice on the state's highest court, a justice with a history of representing individuals in hardship.
He says he doesn't know what his chances are in May, but even if he loses, he said he'll be happy about getting his message out.
Kristin Rodine: 377-6447