Elections

4 Idaho Supreme Court hopefuls look to replace Jim Jones

Idaho election: Interview with Clive Strong running for Idaho Supreme Court

Clive Strong, candidate for Idaho Supreme Court, talks about why he is running and his opinions on cameras in the courtroom.
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Clive Strong, candidate for Idaho Supreme Court, talks about why he is running and his opinions on cameras in the courtroom.

Idaho Court of Appeals Judge Sergio Gutierrez; Clive Strong, a veteran deputy attorney general; Curt McKenzie, a seven-term Republican state senator; and Robyn Brody, a Rupert attorney, are vying to replace Chief Justice Jim Jones, who announced he would retire after finishing his second six-year term on the high court.

The last time a Supreme Court race attracted more than two candidates was 1998. That year, former Idaho Attorney General Wayne Kidwell outpolled Boisean Mike Wetherell and Lowell Castleton, then a Preston magistrate, in the primary. Kidwell defeated Wetherell in a runoff — the last time that happened — in the November general election.

Wetherell and Castleton went on to become district judges. Kidwell served one term on the court and retired in January 2005. He was succeeded by Jones.

IT’S THE RÉSUMÉ

Choosing between the candidates in a judge’s race is often the most difficult for voters. Those running for office cannot talk about issues that may come before the court and typically say they’ll follow the Constitution and won’t legislate from the bench. Which isn’t all that helpful, since no one says they plan to create new laws through their rulings.

What the Supreme Court candidates do have are their résumés and endorsements from prominent people who hope you’ll pick a candidate based on their recommendations.

Gutierrez, 61, has served as a District Court and appellate judge for 23 years, the first and only Latino judge on the Idaho bench. He joined the state Court of Appeals in 2002 and is the only one of the four candidates with experience as a judge.

But Gutierrez is not particularly comfortable promoting himself.

“It’s really something out of my element to be more visible, to be more public, and you have to do that if you’re going to stand for election,” he told the Statesman Editorial Board during a recent interview.

The other three candidates acknowledge Gutierrez’s long service on the bench, but don’t believe that hinders their ability to serve ably on the high court.

“I think experience and reputation are the two things that are really important,” Strong said, emphasizing the candidates’ preclusion from publicly taking sides on issues.

Strong, 63, spent 27 of his 33 years with the Attorney General’s Office working on the Snake River Basin Adjudication, the largest case in state history, where more than 158,000 water rights were settled. That involved complex litigation and required vast organizational skills that he said he would bring to the Supreme Court.

He’s the only candidate to argue a case before the U.S. Supreme Court, which, Strong said, requires a “considerable skill set,” and the only candidate to argue 15 cases before the Idaho Supreme Court.

Brody, 46, said she would bring a different approach to the court because of her 20 years serving individuals and groups on a wide range of issues.

“The thing I bring to the bench is a perspective of being connected to the people, being connected to the decisions that are being made. I haven’t spent a lifetime on the bench. I call it the view from the trench, not the bench,” Brody said. “I think it helps to have somebody who has actually been doing the work, to have the practitioner’s perspective.”

McKenzie, 47, also operates his own law firm, in addition to his lawmaking duties with the Legislature.

“I’ve worked for the state as a prosecuting attorney. I’ve had major clients and cases where people didn’t have any money but I felt they had a just cause. I think that kind of experience is important,” McKenzie said.

FRIENDS IN HIGH PLACES

Gutierrez first came to Idaho to work for the Idaho Migrant Council in Nampa and to attend school at Boise State University, where he earned a bachelor’s degree in elementary education. He earned a law degree from the University of California Hastings School of Law and worked for Legal Aid Services and a private law firm before he was appointed to the 3rd District Court bench in Canyon County in 1993.

Guiterrez, like Brody, has not publicized his endorsements.

Strong has served as the longtime head of the Natural Resources Division at the Attorney General’s Office. He earned a bachelor’s degree in forestry and his law degree from the University of Idaho. He also has a master’s degree in law from the University of Michigan.

He has collected endorsements from former Democratic Gov. Cecil Andrus, former Republican Gov. Dirk Kempthorne and House Speaker Scott Bedke, R-Oakley.

McKenzie has represented the 13th District in the Idaho Senate since 2002. He serves as chairman of the Senate State Affairs Committee.

He earned a bachelor’s degree from Northwest Nazarene University and his law degree from the Georgetown University Law Center.

McKenzie raised some eyebrows when he hired his friend, former state Sen. John McGee, to help with his campaign. McGee resigned from the Legislature in 2012 after a female staffer accused him of sexual harassment and after a drunken driving incident.

McKenzie has endorsements from 34 members of the Idaho Legislature, including Senate Majority Leader Bart Davis and Senate Pro Tem Brent Hill, along with Canyon County Sheriff Kieran Donahue.

Brody earned a law degree and a master’s degree in international business from the University of Denver. She spent 13 years as an attorney in Twin Falls before moving in 2010 to Rupert, where she owns her own firm.

She has served as a mentor with the Trial Skills Academy, a lawyer training program, and also served as president of the Fifth District Bar Association and the Idaho Trial Lawyers Association. She was awarded the Idaho State Bar’s Professionalism Award in 2014.

John Sowell: 208-377-6423, @IDS_Sowell

Rating the Supreme Court candidates

Sergio Gutierrez and Robyn Brody received the highest marks among attorneys who responded to a survey from the Idaho Bar Association. They each received an overall mark of 3.58 out of 4 points. Clive Strong received a score of 3.27; Curt McKenzie received a rating of 1.90.

How is it done? The survey asks respondents to rate the candidates in four areas: integrity and independence; knowledge and understanding of the law; judicial temperament and demeanor; and legal ability and experience.

How do the ratings work? The four-point rating system allows for “exceeds expectations,” “above average,” “average” and “does not meet expectations.”

How did the candidates score?

▪  Gutierrez received his highest marks, 3.68, for judicial temperament and demeanor, and 3.62 for integrity and independence.

▪  Brody received ratings of 3.60 for knowledge and understanding of the law, and 3.59 for integrity and independence.

▪  Strong received ratings of 3.29 for legal ability and experience, and 3.27 each for integrity and independence, and judicial temperament and demeanor.

▪  McKenzie received ratings of 2.00 for knowledge and understanding of the law, and just 1.94 for judicial temperament and demeanor.

Who participates? A total of 581 attorneys completed the survey out of the 3,806 mailed out to bar members, a 15 percent return rate. The most responses, 311, came from the Fourth Judicial District, which includes Ada, Elmore, Boise and Valley counties. The ratings do not include responses from lawyers who said they did not know a particular candidate.

John Sowell

More election info

Whether you are voting early in person or by absentee ballot, or waiting to vote at the polls on May 17, you can find out more about the candidates with our online voter guide.

Not sure where to vote? Look it up via IdahoVotes.gov or the Ada or Canyon county election websites. You can also call Ada County Elections at 287-6860 or Canyon County Elections at 454-7562 to confirm your polling place.

Not registered to vote? You can register during early voting or on Election Day at your polling site.

Candidate Q&A

Sergio Gutierrez

Why do you want to serve on the Idaho Supreme Court?

I was struck by the fact there were no judges running. It allowed me to think about the importance of having an opportunity for the citizens to have someone with experience, with real trial and appellate experience. For me and east person who looks to contribute as a justice on the Supreme Court, it’s about elevating the integrity of the court in the way that you operate.

It’s a tremendous responsibility, because on the one hand, you have the decision-making responsibilities and then the administration responsibilities.

Why should I vote for you instead of your opponents?

The court is where people come to get help. The experience of someone, then, who understands how it works from day to day is important because you are then able to make changes, as need be, for court systems to be responsive to the citizens.

How one disposes of justice has as much to do with your personal experiences in life. I have a unique life experience to bring to the court as we look at what I frequently call widening the scope of the lenses of justice. That’s how I would differentiate myself from the other candidates.

With respect to the Idaho judiciary, what really works and what may need some work?

As I go out across the country to conferences, I hear and I see the things that are going on in other places. We have a good thing going here. One of the greatest things that has happened — and it’s not just the judiciary —it has been the support by the Legislature that has allowed the court system to go from a traditional operation to one that includes what is now called problem-solving courts. Those are now in existence in all regions of the state. It’s making a difference in people’s lives and impacting people’s lives and it’s been recognized at a national level.

The area where we need work is evidenced by a report that came out from a criminal justice commission that addresses our public defender system. There’s a responsibility that falls on the courts to address that. There’s a (2016 U.S. Supreme Court) case, Luis vs. United States, where Justice Stephen Breyer commented on the fact that only 27 percent of our country-funded public defender systems actually have the staffing of attorneys to handle the caseloads. That’s an area we need to work on.

Some recent Supreme Court decisions have included snide remarks aimed at other justices or at the lawyers or lower court judges involved in a case. How should the decisions be crafted to point out any errors they find without insulting anyone?

The tone of the opinion is important. The civility, the professionalism, those things have to be part of the opinion writing. It’s part of leadership to demonstrate that professionalism, that civility. The appellate judges have as much or even more responsibility than trial judges because what they do is not something that happens in the courtroom. It is something that is distributed in the bound books of our cases. If we cannot demonstrate what we’re asking the trial judges to do, in terms of judicial conduct as justices, then we’re failing.

Clive Strong

Why do you want to serve on the Idaho Supreme Court?

For the last 32 years, I’ve had one client: the state of Idaho and the 1.6 million people of Idaho. In that capacity, I’ve had the chance to work with Idahoans of all walks of life throughout the state. That’s been a real rewarding experience. I’ve worked with them on large and small matters to resolve disputes they’ve had.

I found it a gratifying work experience and I feel like I’d like to continue my public service on the court. Obviously, the purpose of the court is to solve people’s disputes. I think I have the skills and background necessary to do that.

What is your judiciary philosophy?

A lot of people try to pigeonhole people into particular judicial philosophies and I find that difficult for two reasons. One, if you put a label on somebody, the problem is the label is either overly inclusive or underly inclusive. The other issue is that it’s code to try and figure out a political leaning. On the court, you shouldn’t be looking at politics.

With that caveat, what I would say is my philosophy is one of judicial restraint. I look at the court as having a role, a limited role, when looking at the statutes and the way the constitution was written and interpreting it from the words as opposed to injecting my personal philosophy or any political leanings.

Some recent Supreme Court decisions have included snide remarks aimed at other justices or at the lawyers or lower court judges involved in a case. How should the decisions be crafted to point out any errors they find without insulting anyone?

You ought to be able to disagree without being disagreeable. I think it’s important to maintain civility and that was something I would really strive for on the Supreme Court if I was elected to the court. We put five individuals on court because we want a diversity of experience and background. And if we have a diversity of experience and background, I would hope they would collectively work together in a proper fashion to reach a consensus on an outcome.

If they’re unable to do so, it’s appropriate to respect the dissent and I don’t think they should be injecting personalities. The court extends far beyond this case or any other case and it’s important that we recognize that and bring respect to the institution. To the extent we’re criticizing one another, we disserve the court.

How do you respond to the question about the scope of your background? Although it’s lengthy, it’s fairly narrow. It’s not all-emcompassing.

You get a reputation for doing certain things, but they misapprehend the scope and the nature of my job. I’m chief of the Natural Resources Division and I represent five different state agencies. Those state agencies are just like any other client. They have issues that span the breadth and depth of practice. I’m currently working on a bankruptcy case. We’ve done contract cases. We’ve done bonding, trust law, we deal with issues with real estate transactions.

To the extent that I don’t know a particular area, I can learn that area. For example, my reputation is on water law. I never took a water law class, but I think I understand it pretty well now.

Curt McKenzie

Why do you want to serve on the Idaho Supreme Court?

When I was in law school, it was right by Capitol Hill, so we could go over there (to the U.S. Supreme Court). I was very intrigued by the court, but I never thought I’d have a chance to serve there.

I planned to serve no more than one more term in the state Senate. With the retirement of Justice Jones, it’s so rare that we have an open seat and a contested race without an incumbent. I thought this was the time if I was going to make it happen, so I filed and here I am.

If you were elected, what would be your judicial philosophy?

It would be applying the Constitution and constitutional statutes as they’re written, not trying to impose a personal philosophy to them. I think we have to be careful about looking beyond the text to find legislative intent. In Idaho, you have very limited committee minutes. The committee minutes don’t tell you why a senator voted for it or debate on the House floor even doesn’t tell what individual legislators were thinking.

I think it’s a useful background to have gone through that process to understand the need to be careful when you try and look at legislative intent.

With respect to the Idaho judiciary, what really works and what may need some work?

I think what has been working and what I would like to us continue to expand is the problem-solving courts. I’ve seen those on a first-hand basis. I’ve sat through drug court for hours, mental health court, veterans court, domestic violence court, are all very valuable tools for people. When people see that judges and prosecutors and staff are putting their time in to these courts, over and above their regular schedule a lot of the time, and rooting for people to be able to change their lives in fundamental ways, I think that is a huge sign for people that the courts are fair and open and accessible.

We have to constantly monitor the caseloads that the judges, the trail judges, have to make sure they’re able to handle the caseloads and the respond timely to the issues they’ve got to deal with. That’s not necessarily a problem, but it’s always going to be an issue for us. We’re always going to have to deal with that. As the population keeps growing, we need to make sure our courts are able to handle the growth of the population and the subsequent legal issues we have to respond to.

Some recent Supreme Court decisions have included snide remarks aimed at other justices or at the lawyers or lower court judges involved in a case. How should the decisions be crafted to point out any errors they find without insulting anyone?

I don’t think it’s my personality to be snide or rude and I’ve chaired a committee for 10 years now that’s had some of the most difficult social issues we see in the state and I’ve always tried to be polite to people. More than that, I’ve got a perspective that maybe the other candidates

I’ve tried over 20 jury trials to verdict and I understand the pressures that those attorneys and the judge are in in front of a jury, making split-second decisions. I’m very sympathetic to the trial bench. I’m sympathetic to attorneys that have solo practices and don’t have the time to spend on issues. My diverse background I think is helpful to understand to understand the attorneys and the people who are going to come before the bench.

Robyn Brody

Why do you want to serve on the Idaho Supreme Court?

I feel like after 20 years with a very diverse civil practice I feel like I’ve got something to offer, a perspective that I think that is important for the Idaho Supreme Court to have. Being someone who has represented a very broad range of people and a very broad range of areas is important. And having someone who speaks “small town” is important in Idaho. I understand that, as well.

I litigation of all types. I tell people I handle everything from the widow who comes in off the street and needs her marriage license and can’t figure out how to get that done to Social Security disability to complex real estate deals. I do simple estate planning for folks in my community who need that. I handle local school districts, a local hospital and several community health centers.

How would you describe your judicial philosophy?

When it comes to an appellate role, the job of the Idaho Supreme Court is to get the law right, to make sure they’re looking at the system as a whole. I think it’s careful. It’s deliberate. The court has to understand fundamentally the system of checks and balances. It has to respect the legislative rules.

At the same time, the court has to be willing to sometimes be brave and to act as an important check on the legislature in order to protect the fundamental rights of the people.

With respect to the Idaho judiciary, what really works and what may need some work?

As a whole, I think we have an excellent system. I think statewide we have a good system of judges and I don’t think we have the kinds of problems that sometimes make headlines throughout the rest of the country. I didn’t come seeking this position because I necessarily thought something was broken.

I see it as an opportunity and I think the opportunities that I see available to me and something that I bring that is a little bit different is that practitioner’s perspective, the people perspective

Some recent Supreme Court decisions have included snide remarks aimed at other justices or at the lawyers or lower court judges involved in a case. How should the decisions be crafted to point out any errors they find without insulting anyone?

I’ve heard similar comments from every attorney group that I’ve met with. And I’ve met with a lot of them. If you truly see a problem, something that would warrant the court doing something, then my view is do it. Call judicial counsel, call bar counsel. I don’t believe that legal opinions are the place to address those kinds of circumstances. There are other channels.

Those opinions last forever. If you have a have a young attorney who makes a mistake or a young judge who makes a mistake, I don’t think we need to put that out there for the next 200 years.

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