Idaho GOP’s bill increasing governor’s ‘influence over the judiciary’ draws objections
Nearing the end of the 2022 legislative session, Republican lawmakers are rushing through a bill that would transform the Idaho Judicial Council, a move opponents say would politicize the process for appointing judges.
Lawmakers expect to adjourn this week, but House and Senate GOP leaders say they first hope to pass House Bill 782, which would increase the number of gubernatorial appointments to the nonpartisan committee that vets and nominates candidates for judicial vacancies. The bill also would publicize survey feedback on candidates collected by the Idaho State Bar.
The changes would broaden the membership’s professional experience and increase transparency, according to supporters. Co-sponsor Rep. Greg Chaney, R-Caldwell, an attorney, told a House panel on Thursday that there’s a perception the council lacks a diversity of viewpoints.
“That perception is large enough to create a desire to make changes to the judicial council,” Chaney said.
Rep. Colin Nash, D-Boise, who opposed the proposal, said it would be a “tectonic shift” on par with a constitutional amendment, which requires a much higher level of concurrence, including from voters.
“The judicial council is widely respected in the legal community, for the professionalism that they exhibit in vetting and putting forth names to the governor for judicial appointments,” Nash, an attorney, told the Idaho Statesman. The executive branch’s “influence over the judiciary would be greatly increased by the proposed change in House Bill 782.”
The Idaho Judicial Council helped fill several vacancies last year, including two in the Third District, which covers Canyon County and five other counties in Southwest Idaho. A new Supreme Court justice was appointed as well. Three more district court vacancies will be filled by voters during the November election.
During a tense debate in the House on Friday — when the legislation passed on a 44-24 vote, despite bipartisan opposition — Majority Leader Mike Moyle, R-Star, said the process for nominating judges is already political. He said judges are retiring early rather than finishing their terms, so that their replacements can be appointed by the nonpartisan council before an election.
“That process helps establish incumbency,” Moyle said. “It helps make it easier for that judge, who’s picked by somebody else, to be elected. I have a concern with that.”
Bill favors elected official oversight
The Legislature created the Idaho Judicial Council in 1967 and the committee has operated nearly unchanged since. In 1990, the Legislature added an adjunct magistrate member, who joins the council when it considers an issue involving a magistrate judge.
Idaho is one of dozens of states with a nominating commission for judicial appointments. Other states, such as neighboring Oregon, Washington and Montana, allow governors to make appointments directly. The Montana Legislature abolished its Judicial Nomination Commission last year, after the committee had vetted candidates for nearly 50 years.
Idaho’s seven-member council is made up of the chief justice of the Idaho Supreme Court; one district judge; two attorneys selected by the Idaho State Bar, and confirmed by the Idaho Senate; and three laypeople, with no specialized legal experience, who are appointed by the governor and also confirmed by the Senate.
Similar to members of the Idaho Public Utilities Commission and the Idaho State Tax Commission, judicial council members have six-year terms.
“They’re staggered over a gubernatorial term so that you can’t just remake a commission or council overnight,” Nash said.
House Bill 782 would limit terms to four years and also add four people to the council: two more attorneys, a magistrate judge and a layperson. The governor would continue to appoint the lay members and also could reject the Idaho State Bar’s nominations, under the legislation being pursued by Republican leaders.
If passed and signed into law, the bill would allow the executive branch to gain oversight over eight of the 11 seats on the council.
Bill co-sponsor Sen. Abby Lee, R-Fruitland, emphasized that the Idaho State Bar is an unelected group that nominates judicial council appointments directly to the Senate.
“This an opportunity to improve transparency,” she said during a Thursday committee hearing.
Lee conceded that the Senate has not rejected a nomination from the State Bar during her three terms there.
Five former chief justices of the Idaho Supreme Court sent Chaney a letter stating that they support the current system, the Idaho Capital Sun reported. The March 11 letter was signed by retired judges Roger S. Burdick, Robert Bakes, Linda Copple Trout, Gerald Schroeder and Jim J. Jones.
Last month, Idaho Chief Justice G. Richard Bevan launched a special committee to study possible changes to the Idaho Judicial Council membership. Bevan invited top Republican officials to nominate people to join the committee.
“My fellow justices support a comprehensive study of judicial recruitment, including the Judicial Council processes, so we can identify all issues and a complete set of solutions,” Bevan wrote in a letter to Gov. Brad Little, Senate President Pro Tem Chuck Winder, R-Boise, and House Speaker Scott Bedke, R-Oakley. “We want to avoid piecemeal changes, which could inadvertently create unintended consequences on our recruitment and judicial selection process.”
Survey comments would be publicized
The Idaho State Bar solicits feedback from attorneys who have worked with judicial applicants. It shares the anonymous survey data — which includes ratings on integrity, temperament and other factors — with the judicial council.
The anonymous ratings are already public, but they don’t include comments from survey respondents. House Bill 782 would make the comments public, as well.
The bill compels the council to summarize the factors it considered when vetting an applicant in reports for the governor, which would become public record. Additionally, the council would be required to share comments with the applicants, if they request those.
Publicizing the information would allow applicants to know before an interview whether they’ll face certain questions, such as “allegations that they sniff coke and party,” Chaney told the House Judiciary and Rules Committee last week.
Others say the change would deter attorneys from providing honest feedback.
“This would deprive both the Judicial Council and the governor of some of the most important and valuable information relied upon to select the best candidates for judicial office,” Judge Jeff M. Brudie, executive director of the Idaho Judicial Council, wrote in a letter to lawmakers.
Judicial salary raises are also included in the bill, for district and magistrate judges, Supreme Court justices and appeals court judges.
‘Strange bedfellows’ back changes
Rep. Ron Nate, R-Rexburg, said he was surprised at the combination of groups that lobbied for a judicial council reform bill.
The Idaho Association of Commerce and Industry (IACI), which represents some of the state’s largest employers, supports House Bill 782, as does the Idaho Liability Reform Coalition, a tort reform lobbying group.
Idaho Liability Reform Coalition lobbyist and attorney Ken McClure said the appointment process is run by an “old boys club.”
The Idaho Freedom Foundation — which is often at odds with IACI-supported legislation — also gave the bill a positive score.
Nate on Friday quoted an adapted William Shakespeare phrase, “politics makes for strange bedfellows.” Nate, who served on the Idaho Judicial Council for one term, opposed the legislation.
“Politics never came into play,” he said of his council term. “It was always about who is the best candidate for judge.”
Lawmakers told the Statesman that they’re facing pressure from Republican leaders to support the legislation. Rep. James Ruchti, D-Pocatello, said he’s never seen the House GOP caucus work so hard to pass a bill.
“Every tactic you can think of that would be used if you want to get something passed was used,” said Ruchti, an attorney who opposed the legislation.
Moyle drew an objection during Friday’s debate when he told fellow legislators to “stop whining and vote for the bill.”
Some Republican legislators were disappointed by two recent state Supreme Court decisions. Last year, the court struck down a GOP-backed bill that would have made it more difficult for voters to get an initiative on the ballot. In January, the court rejected Republicans’ attempt to block a new legislative district map.
Rep. Gary Marshall, R-Idaho Falls, said Friday that the bill “does not fix the problems that it claims to fix” — the council bestowing incumbency on judicial appointments before an election.
“No one has ever shown to me that the judicial council has ever caused any problems,” Marshall said. “If there’s any reason for this bill, it must be political. Someone fears that our judges are too liberal or something. But I don’t know any Idaho judges that I would consider that way.”
The Senate Judiciary and Rules Committee cleared the bill Wednesday, sending it to the full Senate.
Editor’s note: This story was updated to clarify that survey ratings collected by the Idaho State Bar are already public. House Bill 782 would publicize survey comments, as well.
This story was originally published March 23, 2022 at 4:00 AM.
