By Sarah Clemens
Nearly 50 years after the decision in Reed v. Reed, are Idaho women treated equally under the law? A look at the history of gender equality in Idaho legislation and where the legal treatment of women stands suggests that Idaho has made progress repealing facially discriminatory laws. Yet, even absent patent discrimination, there remains latent inequality in both the historical laws that remain in effect and in newly proposed legislation.
Idaho’s History and Sally Reed
“[M]ales must be preferred to females[.]”[i] Today, this language runs afoul of the Fourteenth Amendment’s Equal Protection Clause, but before 1971, gender preferences in statutes were commonplace. Sally Reed learned this upon the tragic suicide of her minor son, Skip, when the probate judge appointed Sally’s ex-husband, Cecil, as administrator of Skip’s estate—denying Sally’s petition without a hearing. The story of Sally Reed is well known in Idaho, and because of Ruth Bader Ginsburg’s involvement in the case, the story of an Idaho woman denied the equal opportunity to act as the administrator of her deceased son’s estate is equally well known throughout the country.
Sally was qualified to administer Skip’s estate. She worked from home caring for disabled individuals, and she cared for her son when Cecil abandoned her and their young son. Cecil, on the other hand, was abusive, and Skip ultimately committed suicide in Cecil’s basement with his rifle.[ii] Even so, under Idaho’s law, a preference was afforded Cecil based on gender to administer Skip’s estate.
Sally Reed appealed, employing Allen Derr and later receiving the assistance of Ruth Bader Ginsburg, who authored the brief to the United States Supreme Court. Sally Reed succeeded, knocking down the first of many barriers for gender equality that Ruth Bader Ginsburg would challenge to define gender as a suspect class.
Reed v. Reed no doubt changed how gender-based classifications were addressed under the law. Though the probate law at issue in Reed set the stage for gender equality across the U.S., Idaho’s history with gender equality was not so straightforward. Certainly, the probate law at issue in Reed was rewritten and many other gender-based classifications changed in Idaho during the 1970s. Yet even after Reed, legislation in Idaho continues to be drafted even today with gendered language, and the failure of some proposed legislation suggests that Idaho is not yet ready to proceed beyond the protections afforded women under Reed and its progeny.
Idaho has come a long way, and in many respects, has led the way, in enacting legislation that provides equal rights to women. That said, the path to equality for women in Idaho had a checkered past and the path that lays ahead remains long. For the many advancements that individual women made, many laws enacted throughout Idaho’s history have held women back.
No doubt one of the marked achievements for women’s rights in Idaho was the enfranchisement of women to vote. The Nineteenth Amendment to the United States Constitution recently celebrated its 100-year anniversary. In Idaho, however, women had gained the right to vote nearly a quarter-century earlier.[iii] In 1896, Idaho became the fourth state to grant women the right to vote, preceded only by Wyoming, Colorado, and Utah. Despite Idaho’s seemingly early recognition of women’s rights, the right to vote was not absolute. Poll taxes and literacy tests prevented minority men and women from voting for decades longer, and Native Americans were ineligible to vote at all until 1924.[iv]
In 1969 and 1972, the Idaho legislature passed two laws, Idaho Code §§ 18-7303[v] and 67-5909,[vi] both aimed at preventing discrimination on the basis of sex in employment practices. Even so, much of Idaho’s early legislation was aimed specifically at separating women on the basis of their sex. Consider this non-exhaustive timeline of legislation and case law during the late 1800s and early 1900s.
- 1800s – If a wife predeceased her husband, all community property passed to her husband, but if the husband predeceased his wife, she received half and the remaining half was disposed according to his wishes.[vii]
- 1887 – Women were granted the right to make a will by statute under Sec. 5725.[viii]
- 1899 – The Idaho Supreme Court affirmed there is no statutory right for women to make holographic wills and any will by a woman must be attested, witnessed, and proved.[ix]
- 1908 – Married women were not considered capable of committing crimes, except those punishable by death, if the woman was acting under the threat, command, or coercion of her husband.[x]
- 1919 – While married, the husband was considered to maintain absolute control over community property.[xi]
- 1924 – Women were not allowed to serve as jurors.[xii]
- 1932 – Idaho Code recognized that married women are not deprived of civil liberty to execute a contract, but a married woman may not have the same rights to enter into contracts as an unmarried woman.[xiii]
The timeline, though abbreviated, underscores the evolution of women’s rights in Idaho. As Reed v. Reed and later cases brought by Ginsburg before the Supreme Court demonstrated, discrimination on the basis of sex is unconstitutional, and Idaho’s place in that historic recognition remains vital. Yet just as Ruth Bader Ginsburg looked at Reed as the starting place for gender equality rather than a successful place to end the fight, Idaho’s treatment of women as equal remains far from complete.
In the Brief for Appellant filed before the United States Supreme Court in Reed v. Reed in 1972, Ruth Bader Ginsburg agued, “appellant was denied the right to qualify as the administrator of her son’s estate solely because of her sex.”[xiv] Nearly 50 years later, has Idaho attained the degree of gender equality that began Ruth Bader Ginsburg’s pursuit of intermediate scrutiny? Examining recent legislation and existing laws suggests the answer is: not quite.
Equal Rights Amendment
The same year the United Supreme Court issued its ruling in Reed, Idaho was in the news for a second potential step forward in women’s rights: the ratification of the Equal Rights Amendment.[xv] As one of the first states to ratify the amendment, the initial approval signaled a major step toward equal treatment for women under the law. Yet by 1979, Idaho voted to rescind its ratification, along with four other states. In committee minutes from the measure to rescind, then-Representative for Idaho Falls, Lenden Batmen stated, “[l]aws involving relationships between the sexes is an area where reasonable men may differ.”[xvi]
Despite the rescission, the amendment was reintroduced earlier this year by Representative Melissa Wintrow. Under the joint resolution, Wintrow’s proposal would amend Article 1 of Idaho’s constitution to provide for sex equality and prohibit inequitable treatment based upon gender. In opposition to the amendment, the Family Policy Alliance of Idaho released a statement that said, in part, the amendment would “prevent state and federal laws from making any distinctions based on sex.”[xvii] The statement went on to claim that if Idaho were to adopt the Equal Rights Amendment, “women could suddenly become eligible for the draft, and women’s federally funded shelters and prisons would have to allow men access.”[xviii] The bill to amend Idaho’s constitution ultimately failed to make it out of committee.
The Equal Rights Amendment is not the only recent proposal before Idaho state legislators to address gender equality. In February 2016, Representative Wintrow also introduced House Bill 465, which would have amended Chapter 1, Title 73 of Idaho’s Code to add section 73-114B requiring that any new or amended sections to Idaho Code contain gender-neutral language.[xix] The bill received support from Representative Smith of Pocatello, which would also require that legislation use words such as “he/she” or “his/her” rather than masculine pronouns.
Though the bill narrowly received the votes necessary in committee to introduce it, the proposed change to the Idaho Code was met with significant resistance and advanced no further. And though this legislation would create an affirmative responsibility for lawmakers to draft all legislation in gender-neutral language moving forward, there have been some incremental changes to prior legislation. For example, for legislation that use the words “man/wife,” Idaho lawmakers have supplanted the gendered terms with the word “spouse.”
Gender-neutral language within the Idaho Code may seem inconsequential in the advancement of gender equality, but the use of gendered terms is precisely why Reed—and the plaintiffs from the other cases argued by Ginsburg—was disadvantaged; the language of the legislation separated out women for disparate treatment based solely on gender. This type of reform remains a focal point for change by many within Idaho’s legislature.
Both the Equal Rights Amendment and House Bill 465 are representative of a nationwide trend by state legislators to revise state statutes, state constitutions, and local codes to ensure the legislative language is gender neutral. To be clear, using gender-neutral terms in a statute does not automatically confer gender equality and equal rights upon women under the law. That said, the use of gender-neutral language is perhaps the first and easiest step that state legislators can take to remedy the representative disparities under the law, which is why many states have made significant efforts to revise state codes and local ordinances. Since 1983, Washington State has required gender-neutral language in all new pieces of legislation, and the state is also undertaking an extensive revision process to modify all existing state statutes dating back to Washington’s founding in 1854. Washington is not acting in isolation, however. In 2019, the city of Berkeley in California adopted an ordinance to remove gendered language from its municipal code.[xx] The city unanimously adopted the ordinance, which will cost the city $600 to update the language. Moreover, the National Conference of State Legislatures reports that nearly half of all states have sought to revise statutory language so that it is gender neutral.
Eliminating gendered language in legislation is a step forward, but the question necessarily turns to what impact merely modifying a statute from a masculine pronoun to gender-neutral language has on efforts to advance gender equality.
According to the National Women’s Law Center, the impact may be profound. “Words help shape our perception about what opportunities are available to women and men.”[xxi] Put simply, if women are not recognized in the language of the law, then society and the legal community may struggle to view women’s protections and rights under the law. And in some cases, the absence of gender-neutral language in the statute may bar relief, absent an appeal to a higher court. The examples of this principle are reflected through the cases that Ruth Bader Ginsburg argued during the 1970s.
Idaho Laws Moving in the Wrong Direction
Though gender-neutral language in Idaho legislation presents an important if not subtle avenue through which to advance gender equality, an equally important area is within the purpose of the legislation. Two bills recently enacted in the Idaho Legislature suggest that though the rights of women have progressed in many ways since Reed, in other ways pursuit of these rights remains an area of concern.
Consider Idaho’s Medical Consent and Natural Death Act. Idaho Code section 39-4510 authorizes any “competent person” to execute a living will. Section 39-4509 defines the statement of policy for the legislation:
The legislature recognizes the established common law and the fundamental right of competent persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn. The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits.[xxii]
Yet while this legislation explicitly recognizes that any competent person has a fundamental right to control decisions pertaining to medical care, section 39-4510 provides that pregnant women may not enact a living will. A lawsuit is pending to challenge the language excluding pregnant women from the statute on the basis the bill discriminates on gender. The lawsuit, originally filed in 2018, was brought by Legal Voice and Compassion & Choices on behalf of four Idaho women. The groups argue that women do not lose their constitutional rights because they are “diagnosed as pregnant,” which is language from the statute. In late 2019, a federal court rejected a motion by the State to dismiss the case. The case remains pending.[xxiii]
More recently, Idaho took an affirmative—if not currently hypothetical—step toward impeding a woman’s fundamental right to privacy related to legislation that would criminalize abortion.[xxiv] Governor Little signed the law in March of this year and it would become effective should the United States Supreme Court overturn Roe v. Wade. As it stands, the bill makes no exceptions for a woman seeking an abortion in cases of incest or rape and permits the prosecution of doctors who would perform abortions.
ConclusionReed vs. Reed changed the legal landscape for women in Idaho and throughout the nation; the case served as a starting point for Ruth Bader Ginsburg to argue that sex discrimination should be viewed as a suspect class. In many ways, nearly 50 years later, Reed remains just that: a starting point. Though the treatment of women under the law is markedly different now than it was in 1971, many women still do not see themselves as equally protected. And some women would be forgiven for questioning whether Idaho’s legislation is advancing the treatment of women, or whether it is retreating to a time when women did not have the right to privacy for abortion or the right to decide on end-of-life of care. Idaho has come a long way. It has further to go.
Sarah Clemens is a 3L law student at the University of Idaho College of Law. She is interested in practicing criminal law after completing a judicial clerkship upon graduation. In her free time Sarah enjoys fiction writing and spending time with her rescue animals.
[ii] Emily Martin, Reed v. Reed at 40: A Landmark Decision, Nat’l Women’s Law Ctr. (Nov. 16, 2011), https://nwlc.org/blog/reed-v-reed-40-landmark-decision/.
[iii] Kathy Barnard, Women’s Suffrage Right to Vote Came Early in Idaho, Lewiston Tribune (Jul. 3, 1990), https://lmtribune.com/feature/womens-suffrage-right-to-vote-came-early-in-idaho/article_d6e0296a-ba14-59fe-87e4-2789689dcf38.html.
[iv] Donna Yule, Even 100 years after the right to vote, women still fighting for rights, Idaho Statesman (Jan. 16, 2020), https://www.idahostatesman.com/article239242533.html.
[vii] Luis Acosta, Inheritance Laws in the Nineteenth and Twentieth Centuries,Library of Cong. (Mar. 2014), https://www.loc.gov/law/help/inheritance-laws/historical-inheritance-laws.pdf.
[viii] Scott v. Harkness, 6 Idaho 736, 736, 59 P. 556, 556 (1899).
[x] Idaho Code Ann. §§ 17-201(7), 17-807 (1932).
[xv] Betsy Russell, A look back at Idaho’s role in the ERA ratification saga, Post Register (Dec. 16, 2019), https://www.postregister.com/news/government/a-look-back-at-idaho-s-role-in-the-era/article_6b4c6b1d-9770-5473-a889-ec749517b68f.html#:~:text=In%201972%2C%20Idaho%20was%20among,31%2D4%20in%20the%20Senate.
[xvi] Betsy Russell, Utah’s Recent Ratification of Equal Rights Recalls Idaho’s History, Spokesman Review (Dec. 15, 2019), https://www.spokesman.com/stories/2019/dec/15/eye-on-boise-utahs-recent-ratification-of-equal-ri/.
[xix] H.B. 465, 61st Leg. (Idaho 2016).
[xx] Caitlin O’Kane, City to ban gendered language like “manhole,” “manpower” and “firemen,” CBS News (Jul. 18, 2019), https://www.cbsnews.com/news/berkeley-california-to-ban-gendered-language-like-manhole-manpower-and-firemen/.
[xxi] Brian Peteritas, Gender-Neutral Language Written into State Laws,Governing (Apr. 2013),https://www.governing.com/topics/politics/gov-gender-neutral-language-rewritten-into-state-laws.html.
[xxiii] Rebecca Boone, Idaho sued over pregnancy exclusion in advanced directive law,Assoc. Press (May 31, 2018),https://apnews.com/article/824dae6a669147cd88d53c0e690adf09.
[xxiv] S.B 1385, 65th Leg. (Idaho 2020).
By David W. “Tony” Cantrill
I have been executive director of the Idaho Judicial Council for nearly 5 years and have practiced law for 45 years before that, so I do have some idea of what it’s like. The method for selection of magistrates is far different than selecting district court judges.
The Idaho Judicial Council interviews every applicant, asks for input from members of the bar, and goes deep into an applicant’s background. There are about 50 district court judges in the state. By contrast, there are about 100 magistrate judges in Idaho. The magistrate judges are the work horses of the state, in the sense that they preside over family law, probate, and misdemeanors cases, as well as civil cases of less than $10,000.
The selection of magistrate is overseen by the Magistrates Commission. Every county is allowed one magistrate. The range at present is one to twenty-three. Each district has a magistrate commission and there are seven districts statewide.
Idaho Code § 1-2203 provides that the Magistrates Commission be made up of (1) the chairman of the board of county commissioners of each county in the district or a member of such board as designated by the chairman, (2) the mayors of three municipalities, one of whom shall be the mayor of a city with more than 10,000 population, (3) two qualified electors in the district to be appointed by the governor, (4) the administrative district judge of the district, (5) two attorneys nominated by the county clerk and appointed by the administrative judge, (6) a magistrate judge, and (7) a county clerk from within the district. The attorneys may serve up to 6 years. There are other requirements, but they do nothing to limit or expand the membership of the commission.
A unique aspect of the Magistrates Commission is that it does not interview every applicant, rather only those it believes are viable. There were some who felt that in the earlier days of court reform, the selection was biased in favor of who you knew–but I can assure you that is no longer true.
After a new magistrate is selected and sworn in, he comes under the umbrella of the Judicial Council and I meet him for the first time. Even then it may be some time before we talk. I have found the new magistrates to be courteous, hard-working individuals who for the first time are confronted with the Code of Judicial Conduct, simple in its format but devilishly difficult in application. Almost universally, the question of disqualification arises. A judge has a duty to preside over cases when possible, but increasingly there are some who are married to lawyers and how do they handle that? It’s not easy but we always make accommodations. What about ex-law partners? The guideline is one year but it can be longer or shorter depending on the situation. Ada County with about 60 lawyers in the criminal division alone is far different than Lewis county with maybe one.
Overall, my work with judges has been pure pleasure. They listen and act accordingly. We do not socialize but instead acknowledge that we both have a job to do and want to do it well. Discipline is most unpleasant and will have to wait for another day. It does occur but on a very infrequent basis. Lastly, most of what I do is confidential and we can’t have it any other way. The overwhelming complaints are frivolous and only arise because the complaint lost. But I can tell you this, if a judge violates the Code and requires discipline in some form it will happen no matter who it is.
David W. “Tony” Cantrill is an Idaho native and resides in Boise, Idaho. He was born and raised in Pocatello. Mr. Cantrill graduated from Pocatello High School, received his Bachelor of Arts from Idaho State University in 1966 and received his Juris Doctorate in 1970 from the University of Idaho College of Law. He was in the Army, including the reserves from 1963-69. In 1970, Mr. Cantrill entered private practice in Boise concentrating in litigation. He has tried cases in five states and almost every county in the state of Idaho. Mr. Cantrill is a member of the Idaho State Bar, American Inns of Court, Defense Research Institute, Idaho Association of Defense Counsel, and is a Fellow of the American College of Trial Lawyers. He has been married to his wife, Susan, for 49 years, has three children and numerous grandchildren. Mr. Cantrill joined the Idaho Judicial Council as its Executive Director in December of 2015.
By Hon. Scott E. Axline
In Shakespeare’s play, Hamlet, Prince Hamlet starts a soliloquy by uttering these words: “To be, or not to be. That is the question:…” As we approach the 50th anniversary of the inception of the Magistrate Court system in Idaho I thought it might be beneficial for some if we look at exactly what it takes to become a Magistrate Judge and why someone would want “to be” a Magistrate.
“TO SLEEP, PERCHANCE TO DREAM”
Magistrate judges in Idaho as we know them now were first established by the Idaho Legislature on January 11, 1971. Prior to 1971 the court system in Idaho, with the exception of District Judges and the Supreme Court, which are both established by the Idaho State Constitution, was made up of a hodgepodge of local judges including probate judges, justices of the peace, police court judges, town judges, and traffic court judges, just to name a few. Some were attorneys, but many were not. Those who were not attorneys were “lay judges.” These were the judges the vast majority of citizens involved in the courts actually come into contact with. My own estimate is that 90 percent of the people who went to court were dealing with this hodgepodge of local Judges. The change in 1971 bringing them all under one umbrella really was a monumental change in the courts of Idaho relative to the lower-level judges, because it changed what was required to be a judge and clearly defined what the judge could do. Prior to this time, many, if not most, of the lower judicial positions were part-time positions. If a person was an attorney, she/he could also perform judicial functions to supplement their income and provide a service to the community. If they were a lay judge their judicial function could supplement their income from their regular job. On January 11, 1971 that changed. On that date, pursuant to Idaho code section 1-103, “all probate courts, Justice of the peace courts, and police courts shall cease to exist….”
The Magistrate division of the District Court is established and defined in Idaho code section 1-2201, et seq. The qualifications to become a Magistrate are set forth in section 1-2206: a candidate must be at least 30 years of age; they must be a citizen of the United States; they must have been a legal resident of the state of Idaho for at least two continuous years immediately preceding their appointment; they must have been in good standing as an active or judicial member of the Idaho State Bar for at least two continuous years immediately preceding their appointment; and they must have held a license to practice law or held a judicial office in one or more jurisdictions for at least five continuous years immediately preceding their appointment.
The old system was thus put “to sleep”, if you will, in the hope, the “dream”, of what the new Magistrate Division could be for the State of Idaho and its citizens.
“WHETHER ‘TIS NOBLER IN THE MIND TO SUFFER THE SLINGS AND ARROWS”
What may not be readily apparent is that to even consider being a Magistrate Judge, absent extraordinary circumstances not relevant to this discussion, a person must have graduated from high school (12 years of school), received an undergraduate degree (four years of school), graduated from law school (three years of school), passed the State Bar exam (which when I took it was a three-day exam), been admitted to practice law and held that ability and responsibility for at least five years. So, if one sails straight through, a person has to have 19 years of schooling, pass a multi-day exam, and keep their head above water in the practice of law for at least five years, a total of 24 years.
Of course, they must also be at least 30 years of age, which most will be, or will be close to, by the time they meet the rest of the criteria. That being said, the vast majority of Magistrates appointed in the State of Idaho are well past 30 years of age and have practiced law for a lot more than five years. Once a person has reached these milestones they can then throw their hat into the ring to be appointed as a Magistrate Judge. That “ring” is the Magistrate Commission. Pursuant to Idaho code section 1-2203, the Magistrate Commission of each Judicial District is made up of the Chairman of the Board of County Commissioners of each county in the judicial district, the Mayors of three municipalities in the judicial district which are appointed by the Governor, two qualified electors residing within the Judicial district which are also appointed by the Governor, the Administrative Judge of the district, two attorneys nominated by the District Bar Association in each district and appointed by the Idaho State Bar, a Magistrate Judge in the district, and the County Clerk in the district to be appointed by the administrative District Judge. A daunting group to be sure.
As part of the process of going before the Magistrate Commission, the State Bar sends out a survey to all attorneys and also makes it available to the general public regarding each of the candidates who has applied. That number varies each time but has been as high as almost 30 applicants. The surveys are returned anonymously to the commission and include the comments and assessment of each candidate by members of the Bar and the public who may like or dislike the candidate for whatever reason. Most Magistrate Commissions then take those responses and come up with a “short list” of candidates to be interviewed. The candidates also will have to provide information about themselves, including financial information, legal history, work history, education background, and Bar complaints against them, just to name a few.
So the candidate, along with all the other candidates who have made the “short list”, goes before this commission and is interviewed, which entails telling the commission a little about themselves and why they want to be a judge and answering questions put to them by the individual commission members, some of these questions may be prompted by comments made in the anonymous survey. At the end of the interview process the Commission goes into executive session and discusses the candidates and votes. Once they have a majority vote, the candidate they picked is informed they have been selected to be a Magistrate Judge. This process would be harrowing enough if that were the end of it, but it is not.
Pursuant to Idaho code section 1-2205 (C) the decision of the Magistrate Commission may be disapproved by a majority of the District Judges in the district within 30 days. And the new Magistrate Judge is on “probation” for 18 months following her/his appointment during which time she/he may be removed from office without cause by majority vote of the commission. During this 18 month probationary period many of the Magistrate Commissions have the new Magistrate go through a review process every six months, during which the State Bar will send out another survey so the attorneys and people in the community can again make anonymous comments, good and bad, and rate the new judge on her/his performance.
During this same period of time the new judge is required to attend two multi-day “New Judge Orientation” courses at the Idaho Supreme Court. They must also attend a two-week course at the National Judicial College in Reno, Nevada. If they make it through all of that, the Magistrate then has to face an election every four years to determine if he/she will be retained in office or will to go back into the private sector and start all over trying to build up a client base.
After the Commission notifies them of their appointment, the candidate has a short period of time, probably around 60 days, to wind up their legal practice, which in many cases means several hundred cases and clients, and, if they don’t live in the County where they will be seated, sell their home in their current county, purchase a home in their new county, and move their family.
Most, if not all, of the candidates coming out of the private sector will be taking a pretty significant pay cut, particularly if they have more than the 5 year minimum of experience. The longer they have practiced law and the more experienced they are, both of which will make them better judges, the greater the likelihood they will be taking a pay cut and the greater the pay cut will be. Oh, and let us not forget that, pursuant to Article V. Section 17, of the Idaho Constitution and I.C. § 59-502, if the Judge cannot get a decision out in 30 days his/her pay is withheld until it is completed.
The candidates truly do “suffer the slings and arrows” in pursuit of their dream of becoming a Magistrate Judge.
“OR TO TAKE UP ARMS AGAINST A SEA OF TROUBLES”
And, while a candidate may only practice in one or two areas of the law in their private practice, from the first day on the job, which in most cases is before they have attended the New Judge orientation or the Judicial College, they are thrown into “a sea of troubles.” They are required to know almost every area of the law since they may well be hearing cases in the following areas: Civil cases under $10,000.00, whether contract, personal injury, or otherwise, evictions (including forcible entry, forcible detainer, and unlawful detainer), collections, the probate of wills and administration of estates of decedents, minors and incompetents (which can involve millions of dollars), guardianships, termination of parental rights, all actions for change of name, all proceedings for divorce, separate maintenance or annulment, including orders to show cause, hearings and issuance of restraining orders; including all child support and maintenance proceedings, all Domestic Violence and Protection Order proceedings, all habeas corpus proceedings, including all habeas corpus proceedings involved in a criminal proceeding or conviction, juvenile justice cases, misdemeanor cases (including D.U.I. and battery, etc.), infractions, arraignment court, proceedings pertaining to warrants for arrest or for searches and seizures; mental commitment proceedings, and proceedings for the preliminary examination to determine probable cause, commitment prior to trial or the release on bail of persons charged with criminal offenses, just to name a few.
A Magistrate Judge can, and often does, go from deciding where children will live in a family law case in the morning to deciding who will go to jail in a criminal case in the afternoon. From presiding over an adoption one day to terminating parental rights the next. From deciding if someone was actually speeding to deciding if there is probably cause to bind a defendant over to the District Court on a First Degree Murder charge which may carry the death penalty, to deciding who gets to inherit millions of dollars in an estate. They literally have to know it all.
And they have to know it all the time. A Magistrate Judge will usually be assigned “on call” duties, which means they review all the requests for warrants and new felony criminal complaints and also arraign defendants on new criminal charges. And they do this on top of their regular calendar of cases during the day. And when “on call,” they have to be available in the middle of the night for warrants for blood draws and search warrants, etc. and also be available on weekends to review new cases and determine bond amounts. If they are a judge in a one judge county they have these duties 24/7/356. If they are a judge in a multi-judge county they usually rotate these duties.
Magistrate Judges are the first line of defense against “the sea of troubles” citizens find themselves in, whether by their own doing or not.
“ ‘TIS A CONSUMMATION DEVOUTLY TO BE WISHED”
So one can see that “to be or not to be” is not really the question, it is the answer. For if a person is asking themselves whether they want to be a Magistrate Judge or not, the answer is more than likely “…not to be.” For the vast majority of Magistrate Judges, if not all of them, there really was no question of whether they wanted to be a Magistrate Judge, they already knew that. They apply because they know that is what they want to do and they serve because they love the job and they want to give back to the community that they live in.
That is the answer.
Judge Scott E. Axline has been a magistrate judge in Bannock County, Idaho since January 4, 2013. He covers cases in the Sixth Judicial District and has also been appointed by the Idaho Supreme Court to hear cases in the Seventh Judicial District. He and his wife, Jackie, have four children and 11 1/2 grandchildren.
By Hon. Michael J. Oths
The Idaho Magistrate Judges Association (IMJA) is the voice of Idaho’s limited jurisdiction court judges. IMJA, through its officers, has been invited to address the Judiciary Committee of each branch of the Legislature on an annual basis. In years past, the IMJA has compiled demographic data about its membership, for the benefit of the Legislative committees. This article borrows from that research and provides a demographic history of Idaho’s Magistrates.
Idaho currently has 95 Magistrate Judges. As you will find out next in Judge Axline’s article, in order to be appointed, candidates must be lawyers of at least five-years’ experience, at least 30 years old, and a resident and lawyer in Idaho for at least the last two years.
When the Magistrate division was created, however, being a lawyer was not a requirement.[i] Many of the early Magistrates were laypeople, including some who had previously been Justices of the Peace or Police Court Judges.[ii] In fact, of the 60 original Magistrates appointed in 1971, 40 were non-lawyers.
In 1982, the Legislature amended the statute to provide that, going forward, all Magistrates must be lawyers. By 1990, only six lay Magistrates remained in Idaho.
The last lay Magistrate to retire was the legendary Judge Mildred McClure, who served until 2001. Judge McClure was first elected as Probate Judge from Dubois in 1962 and eventually was one of the first Magistrates in the Seventh District.
Seventh District Magistrate Linda Cook was the first woman lawyer appointed to the bench, taking her seat in 1976. When First District Magistrate Debra Heise took her seat in January 1985, only a handful of women lawyers had been appointed, including Judge Cook, Judge Karen Vehlow, Judge Darla Williamson, and Judge Patricia Young.
As recently as January 2015, of the 50 senior[iii] Magistrates in Idaho, only six were women, comprising 12% of that segment of the bench. As of this writing, 40 of the 50 senior Magistrates are men, meaning women are 20% of that more experienced group. Conversely, 38% of the newer half of the Magistrate division are women. These numbers are generally reflective of the overall Idaho State Bar. Currently, women comprise 30% of the Idaho State Bar and 27% of the Magistrate bench. Considering that it is rare for lawyers with fewer than 10 years’ experience to be appointed, it is noteworthy that 26% of lawyers admitted for at least 10 years are women, almost exactly the same percentage found on the Magistrate bench.
It is also interesting to study where Magistrates were before they became judges. The last known demographic study was conducted in 2015, and showed the following:
- 52% were in private practice immediately before appointment to the bench
- 30% were county prosecutors
- 6% were city attorneys
- 5% were deputy Attorneys General
- 4% were “other”
- 3% were public defenders
The median current tenure for active Magistrates in Idaho is just under seven years since appointment. Only 16% of Magistrates have been on the bench for more than 15 years.
Taking a snapshot of turnover on the bench is also revealing. Of the 50 senior Magistrates as of January 2015, only 17 are still in that role. Five have been appointed as District Judges, one is deceased, and 27 have retired.
The make-up of the magistrate bench has changed over the years, from mostly non-lawyers originally and only men, to a dedicated group of lawyers who serve as magistrates and reflect the gender demographics of the Idaho State Bar.
Hon. Michael J. Oths is a past President of the Idaho State Bar and a certified “bar junkie.” Oths is a magistrate judge in Ada County. Prior to his appointment as a magistrate, Oths was Bar Counsel for the Idaho State Bar for 17 years. He received his J.D. from the University of Oregon School of Law.
[i] The initial qualification was that the person have a high school diploma or a G.E.D equivalency. Idaho Code §1-2206(2).
[ii] In Moscow, the Police Court Judge was traditionally a third-year law student. Veteran Caldwell lawyer Herb Rettig was the Police Court Judge while enrolled at U of I, and said that the spot was a plum part-time job for law students.
[iii] As used in this article, “senior” refers to years on the bench, not age, and it refers to active judges, not to retired judges on senior status.
By Hon. Rudolph E. “Rick” Carnaroli
Fifty years have passed since the State of Idaho’s first Magistrate Judges took the bench. The creation of the Magistrate Division of the District Court was the product of in excess of a decade of work throughout the 1960’s on statewide court reform. In 1960, the Idaho State Bar formally recommended court reform. In 1962, the voters of Idaho passed an amendment to the Constitution of the State of Idaho to enable legislative efforts to implement statewide court reform. Finally, in 1969, the Idaho Legislature completed its legislation to make the work of many become a reality. Among the advocates for court reform were members and leaders from the Idaho Judicial Branch, the Idaho Legislature, and the Idaho State Bar, as well as the residents of the State of Idaho who all wanted a better system of local justice.[i]
On January 11, 1971, the first Magistrate Judges took office. The Magistrate Divisions of the District Courts replaced the local “people’s courts,” which were the justice of the peace courts, the municipal courts, and the probate courts. A new lower court system under a more centralized management structure administered by the Idaho Supreme Court was open for business with the promise that it would better meet the needs of the times and Idaho citizens.
Serving Communities Better
One has to wonder if those who championed court reform could see beyond what they were working to create: a statewide lower court system better suited to serve all communities throughout Idaho. Did they foresee that the Magistrate Judges would become such an integral piece of the fabric of the Idaho Judiciary? After all, the Idaho Legislature created the Magistrate Division under its constitutional authority to create “inferior courts.” A better choice of words might have been “lower courts.”
Did they envision that the Magistrate Division would be much more than a division of “inferior courts” and that it would eventually receive the assignment to resolve approximately ninety percent of all Idaho’s case filings annually? Did they foresee that the Magistrate Division would eventually become the trial court to handle all of Idaho’s family law cases? The Magistrate Judges handle not only divorce and related proceedings, but also Child Protective Act cases, terminations of parental rights, adoptions, guardianship, and conservatorship proceedings.
Did they realize that someday, the Magistrate Division would be the gateway for almost all criminal cases filed in Idaho? With the exception of those cases that involve felony indictments handed down by a grand jury, every felony, misdemeanor, and infraction case commences in the Magistrate Division. The jurisdiction of the Magistrate Division has grown and Magistrate Judges are part of a well-trained corps of Idaho judges deciding significant issues on a daily basis.
One has to wonder if the champions of court reform viewed the newly created position of Magistrate Judge as a profession for many of the judges appointed to serve in the Magistrate Division. Service in the Magistrate Division has become a final career choice for many talented jurists, some of whom remained in office for decades and eventually retired as Magistrate Judges. It is fair to say that the majority have made the position of Magistrate Judge the final stop in their legal careers. In fact, some Magistrate Judges have served in excess of 30 years on the bench, including the Honorable Mark Riddoch who continues to serve Bonneville County after 37 years. Many Magistrate Judges have said that they truly believe they would not enjoy another judicial position as well or as much and most have found great satisfaction in service to their local communities.
Notable Idaho Magistrates
The Magistrate Division also boasts an impressive list of alumni. Five Idaho Supreme Court Justices and former Justices served their local communities as Magistrate Judges. Two Idaho Court of Appeals Judges have also served as Magistrate Judges. In addition, dozens of Magistrate Judges have transitioned from the Magistrate Division to positions as District Judges[TF1] .
Our outgoing Chief Justice Roger J. Burdick started his long and successful judicial career in 1981 as a Magistrate Judge in Jerome County. The first woman appointed to serve on the Idaho Supreme Court, former Chief Justice Linda Copple Trout began her judicial career as a Magistrate Judge in Nez Perce County. One of the first magistrate judges, former Chief Justice Gerald Schroeder, began his long judicial career in 1971 when his position as a probate court judge was absorbed into the Magistrate Division by court reform. His long judicial career as a Magistrate Judge, District Judge, and as a Justice has spanned five decades as he continues to serve as a Senior Judge for the Idaho Supreme Court.
Former Chief Justice Daniel T. Eismann started a nine-year appointment as a Magistrate Judge in Owyhee County in 1986. He transitioned to a District Judge position in 1995 and in 2000 he was elected to the Idaho Supreme Court where he served 17 years. The latest appointee to the Idaho Supreme Court who served as a Magistrate Judge was recently retired Justice Joel Horton. Justice Horton served as a Magistrate Judge in Ada County from 1994 to 1996 and served on the Idaho Supreme Court for 11 years until he retired in 2018.
In 1982, the Idaho Court of Appeals was born of legislative enactment. Our two former Magistrate Judges who served on the Idaho Court of Appeals are the Honorable Roger Swanstrom and the Honorable John Melanson. Judge Swanstrom served as one of the original Magistrate Judges from 1971 to 1973 after which he was appointed as a district judge for the Second District. Judge Swanstrom again took part in opening a new branch of the Idaho judiciary serving as one of the first three appointed members of the Court of Appeals from 1982 to1993. Judge Melanson served as a Magistrate Judge in Minidoka County from 2000 to 2009 and served the Court of Appeals from 2009 to 2017 serving as chief judge from 2015 to 2017.
Helping Modernize Idaho’s Justice System
As the Idaho court system has grown and evolved Magistrate Judges have contributed at almost all levels to assist the Idaho Supreme Court’s mission to administer a more modern justice throughout the state. The drug courts, or treatment courts are a prime example of a more modern justice.
In 1999, Idaho’s first drug court was started by former Chief Justice Eismann while he was serving as a District Judge in Ada County. In the years that followed, all seven of Idaho’s judicial districts established their own treatment courts. Idaho has since come to rely on treatment courts as an economic alternative to incarceration and a means by which the courts hold mentally ill and chemically dependent Defendants accountable for their crimes while providing them treatment in the community. While felony offenders most often comprise the treatment court rosters, many Magistrate Judges have served and continue to serve as treatment court judges delivering team-based drug, alcohol, and mental health treatment and services to criminal justice involved persons in their communities.
Magistrate Judges have taken seats at the table in both the administration of the Court and on the Idaho Judicial Council. Three of the four elected officers of the Magistrate Judges’ Association regularly participate as voting members of the Administrative Conference of the Courts. The Administrative Conference generally meets four times a year with “the responsibility [as members of] the Administrative Conference collectively, and … individually to make decisions in such a manner as to promote the effective administration of justice throughout the state of Idaho…”[ii] One Magistrate Judge serves as a non-voting member of the Idaho Judicial Council. The Idaho Judicial Council’s mission among other things, is to act pursuant to Constitutional and statutory authority to safeguard the integrity of Idaho’s entire judicial system, and to “administer the judicial vacancy, judicial discipline, and judicial incapacity system” pursuant to its rules.[iii]
Magistrate Judges also continue to serve in concert with the Idaho Legislature and departments of state government. For the past several years the Magistrate Judges’ Association has delivered informational presentations to the Idaho Senate Judiciary and Rules and the Idaho House of Representatives’ Judiciary and Rules Committees early in the Legislative Session. Magistrate Judges interface almost daily with the Idaho Department of Health and Welfare in matters involving child protection. Magistrate Judges like the Honorable Bryan Murray and the Honorable John Varin have help shaped more modern legislation in juvenile law and juvenile corrections working closely with the Idaho Legislature and the Idaho Department of Juvenile Corrections.
Magistrate Judges have been and are deeply involved in judicial education and work tirelessly as members of numerous committees for the Administrative Office of the Courts. Magistrate Judges participate fully in helping the Court develop better rules of procedure. For example, the Idaho Family Law Rules of Procedure were the product of the hands of many persons, Magistrate Judges, lawyers, and others, but at the point of the spear of this effort were two recently retired Magistrate Judges, the Honorable Russ Comstock and the Honorable David Day.
The Idaho State Bar also enjoys the benefit of volunteer service from many Magistrate Judges in various capacities, including but not limited to committee work and continuing legal education. In fact, the Magistrate Division recently provided leadership to the Idaho State Bar as the Honorable Michael Oths served three years as the first Magistrate Judge elected as an Idaho State Bar Commissioner.
The idea of celebrating the 50th anniversary of the Magistrate Division has been about four years in the making. We first vetted the idea of celebrating our 50th anniversary with the members of the Magistrate Judges Association and received nothing but positive response and support. We shared the idea with the Administrative Conference, the Administrative Office of the Court, and the Justices and received equally positive responses and offers of support. The next three years passed quickly and some of the original ideas we kicked around are no longer possible due to the outbreak of COVID-19 in our country and our state. However, a big push forward happened during the last several months with new ideas and renewed enthusiasm and now, we celebrate.
I would like to thank all who encouraged the Magistrate Judges Association to bring this celebration forward and all of those who contributed their support time and effort to mark this anniversary. Idaho Magistrate Judges, past and present, are a proud bunch. They should be. I would also like to thank all of the Magistrate Judges who mentored me along the way while I spent a truly enjoyable 13 years as a Magistrate Judge. Happy Anniversary to my friends and colleagues. The legacy you have built and continue to build deserves commemoration.
Hon. Rudolph E. “Rick” Carnaroli currently serves as a Sixth District Judge, appointed on January 5, 2018. He served as Sixth District Magistrate Judge, appointed October 1, 2004; co-founder and current Presiding Judge, Sixth District Veterans Court, 2012; Idaho Pro Bono Commission, 2008 to present; officer, Magistrate Judges’ Association, 2012-17; member of the Board of Commissioners of the Idaho State Bar, 2003-06; J.D. Willamette University, 1985; and B.A. Pacific University, 1980.
[i] Condensed from Justice for the Times, A Centennial History of the Idaho Courts, edited by Carl F. Bianci, Chapters 5, 6 and 7.
[ii] Rule 43a.(c) I.C.A.R. Administrative Conference.
[iii] Rule 1(a) and (b), Idaho Judicial Council Rules of Procedure.
By Kristin Bjorkman Dunn
At times it felt like it would never end. The year that seemed to span a decade. Yet here we are at the start of 2021. Is that a worldwide collective sigh of relief I hear?
Turning the calendar to a fresh page and a new year reminds us of the infinite possibilities that lie ahead. It brings with it the delight of untapped possibility. Like the brisk air on a cold winter morning, the newness is invigorating. What is around the corner for us in 2021? Hopefully an effective vaccine, gatherings with those we hold dear, and an end to Zoom meetings.
How do you approach the new year? Do you take stock of where your life journey has led? Do you sit with pen and paper and jot down a trajectory for the year (and years) ahead? Do you question if this will be the year you finally grow your own vegetables, take that French class, learn to paint, or explore topics you are passionate about? Whatever your approach, there is something about a new year that brings energy and a sense of hope.
In this moment of renewal, maybe you will find a unique way to find space for a daily ritual in your life. Perhaps you will connect with nature. Idaho is filled with breathtaking scenery where you can treat yourself to the view or go on a hike. Maybe you will carve out space to pause and to breathe and to be. Perhaps you look for ways to expand your perspective or commit to slowing down and savoring each moment. Maybe you will nurture your creative soul. It could be the year that you decide to be a mentor, check up on someone, and bring encouragement.
If you are in search for a way to stop work, change gears and connect with others and recharge, you might take inspiration from the Swedes. The Swedes practice Fika. Fika is a cake and coffee break which natives insist is something of an art. Fika refers to the pause – not just to enjoy the food and drink but to savor the moment itself. It is a social phenomenon, a legitimate reason to set aside a moment for quality time. Fika can happen at any time, morning as well as evening. And it happens not just once, but twice a day. It can be savored at home, at work, or in a café. It can be with colleagues, family, friends, or someone you are trying to get to know.
Despite all its hardships, 2020 was the year we slowed down, took a breath, and found good in the little moments. Moving into 2021, I will carry forward some of the moments from 2020 that seemed small, but made us feel big. I am referring to the feel good moments such as a walk in the park, reading more books, playing more board games, and the outpourings of empathy and generosity. Perhaps one of the dearest of all these moments for me is the time I had with my two teens. The pandemic brought me, my husband, and our son and daughter to the dining room table. It became our office and schoolroom. The kids completed their school instruction and my husband and I worked our respective jobs.
When the opportunity came to take a break from this work at the dining room table, our family shared laughs and watched the occasional TikTok from which the inspiration came for a family Olympics that included bowling with toilet paper rolls and slurping food without using our hands. Sometimes we took the dog for a walk around the neighborhood. This precious time and connection was a silver lining of living in a pandemic world. In 2021, I will continue to cherish however many more days the pandemic gifts to me with my two teens.
In addition to this gratitude that I carry forward into 2021, the words of Mahatma Gandhi, speak to me as I greet the new year. He said, “It’s the action, not the fruit of the action, that’s important. You have to do the right thing. It may not be in your power, may not be in your time, that there’ll be any fruit. But that doesn’t mean you stop doing the right thing. You may never know what results come from your action. But if you do nothing, there will be no result.” However you welcome 2021, I hope you find your own space. May you feel encouraged in the new year even if the landscape looks different than it ever has before.
Growing up, Kristin Bjorkman Dunn lived in several parts of Idaho. She called the towns of Salmon, Burley, and Moscow home. When she was finished with school, Kristin’s first job took her to Coeur d’Alene. Kristin now makes her home in Boise. In her spare time she can be found reading on her back patio, running on the greenbelt, or camping with her family.
By Hon. Jennifer L.K. Haemmerle
The phone rings at about 2:00 a.m. In response to the groggy, “Hello?,” comes one word… “Judge….” That’s all she needs to know; this is not a personal call but a request for a search warrant. Throughout the wee hours of the morning on any given day, weekend, or holiday, somewhere in Idaho a magistrate judge is up and awake conducting business as usual. In that regard, most parties don’t even know that a judge is already exercising judicial review and discretion over some issue that will affect his or her life.
“Got up, rolled out of bed, dragged a comb across my head”[i]
Any day can start with that call, which launches the Idaho magistrate judge into a day that will require her to respond to a vast variety of legal issues, civil and criminal, urgent and benign, that present themselves across the 44 counties and 95 benches that are the world of the judges of the Idaho Magistrate Division.
The Elephant in the Courtroom
The Idaho magistrate judge is the proverbial elephant encountered by the six blind men. As retold in the poem “The Blind Men and The Elephant” by John Godfrey Saxe,[ii] each man touched a different part of the elephant – the side, tail, trunk, tusk, ear, and knee. Based upon individual perception, each man determined that the elephant was a wall, rope, snake, spear, fan, or tree. The story illustrates that each person perceives his own truth based upon his own experience. In the same way, the party appearing before the magisterial elephant on one day may only perceive one facet of the magistrate bench, but the day holds many different encounters for the judge. To mix metaphors, the magistrate judge is a work horse, not a one trick pony.
First, consider that the blind men have never encountered an elephant before. So is the case with most people who find themselves in a courtroom. For many litigants, a case before the magistrate will be the first and often the only time that they are present in a courtroom. Even when the magistrate is hearing a matter in which the parties are represented by counsel who are well familiar with the courtroom, it is a new, challenging, and even intimidating experience for the party. The atmosphere is formal, the proceeding adversarial and unfamiliar, and there is an individual in a black robe (usually) who will render a decision that may affect how often a father sees his children, how much jail time a mother convicted of DUI must serve, or whether the decedent’s will was validly executed.
For each of these individuals, the magistrate judge is just that part of the elephant – the decider of custody, imposer of the sentence, and interpreter of the will. But these parts, and many more, are combined to make up the magistrate bench.
“Forget everything you have seen in television and the movies.”[iii]
During the week, the judge could start her daily docket with arraignments – the first appearance for dozens of defendants with misdemeanor charges arising from alleged violations of Idaho statutes or county and municipal code. Charges of every nature from misdemeanor vehicular manslaughter to a dog nuisance complaint must proceed through the same arraignment process. Encounter any magistrate in the state, and she will be able to recite the penalty for dozens of criminal offenses.
The rote recitation of rights and penalties is a far cry from the exciting pace of the TV crime drama. But this process, day after day, is critical to confirming constitutional rights – appointment of counsel for the indigent and setting of bond and pre-trial release.[iv] Hopefully, it is the thoughtful exercise of discretion on pre-trial release that prevents further crimes and protects people, including the defendant, from potential harm.
That same morning, the magistrate will also be the first judge to preside over the most serious of offenses in the state. Most citizens associate felony trials with district court but overlook that the majority of persons charged with felonies first appear before the magistrate. Sometimes that felon appears in court based on the very search warrant authorized by the magistrate in the middle of the night. It is not unusual that the only evidentiary hearing in a felony case is the preliminary hearing before the magistrate. A well heard preliminary hearing by a magistrate judge may help counsel focus on issues for resolution before the district court.
For many individuals, these appearances on infractions, misdemeanors, and felonies may be the first time they have been in a courtroom. It is often the first time they have encountered the protections of due process that are afforded to all of us under the Constitutions of the United States and the State of Idaho. For those who come before the magistrate for criminal proceedings, the judge starts out as the solid side of the elephant – the wall that stands firm to ensure constitutional rights are afforded to them.
“My object all sublime, I shall achieve in time – to let the punishment fit the crime”[v]
As part of the criminal docket morning, the magistrate judge moves to the tusk of the elephant. When considering the important task of imposing a criminal sentence, the judge must be keen in discernment and firm in conviction. Fortunately, the criminal sentencing and attendant interaction with the public gives the magistrate an opportunity to be more than just the judge who imposed a sentence. For many judges, the criminal sentencing docket is also the opportunity to provide tools, support, and encouragement as well as the sharp end of punishment when appropriate.
Whatever tools the magistrate judge choses, the ultimate goal at sentencing is to protect society and guide the defendant back onto the path of a law-abiding citizen.
“A hundred suspicions don’t make a proof”[vi]
On criminal law day, the magistrate will also preside over “motions to suppress.” Magistrates issue decisions that inform and shape the interpretation of search and seizure laws in the state, which have lasting and reverberating effect. The magistrate’s ruling on a suppression issue is often the rope that reigns in arbitrary police conduct or confirms that law enforcement’s detention of a defendant was supported by facts and the applicable constitutional standards. A cool and calculated ruling on a motion to suppress is essential for constitutional protections guaranteed to all citizens.
The docket of a magistrate judge, like the elephant’s trunk, is versatile and diverse. Administrative rules list an expansive case load assigned to the jurisdiction of the magistrate judge.[vii] Jurisdiction spans every element of the human condition from mental health to housing and from divorce to death. Collections, custody, juvenile proceedings, jury trials, drinking and driving, probate, and paternity are all in the magistrate judge’s bench docket. During any given lunch break, the magistrate turns her attention to the ever-present Odyssey queue (the “Q”). A scroll through the Q may reveal orders for suspension of driving privileges in “refusal” hearings, default proceedings in collection actions, requests for scheduling conferences and trial settings, orders and letters for the probate of wills, and reports to review in guardianship cases. Immediately after dealing with the Q, the magistrate is prepping for the next hearing, maybe an eviction trial, small claims case, or divorce. The judge often wonders if all will be accomplished by the end of the day.
“There is no such thing as an open and shut custody case.”[viii]
Family law can present the greatest of challenges for the magistrate. Most family law judges and attorneys concur with the opening lines of Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.”[ix] To be sure, most families in domestic relations cases, with guidance from court and counsel, resolve their differences and move forward amicably and with respect. It is a minority of cases that present the emotionally charged and legally challenging issues that require litigation. But those cases, when before the judge, demand full attention. The family law day for the judge will include temporary custody and support orders. Jurisdictional challenges under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) invite the intriguing prospect of a phone call to the judge in another state to discuss the merits of competing jurisdictional challenges.
Any family law day can also start with hearing civil protection orders. The protection of children and adults who have been victimized and controlled by domestic violence or stalking is a paramount concern to the court. But such protection must be within the scope of the law. The magistrate judge must be able to explain to a frustrated and agitated applicant why the law does not provide relief in his or her situation.
In the same day, the judge may hear a trial on separate property tracing from a comingled stock account, request for spousal maintenance, the determination of how to divide the family holiday decorations, or permission to relocate with a child to another state. For a brief and focused period of time, the magistrate becomes an expert on that family. The judge then digests the facts and applies those facts to law, which vests the judge with wide discretion. The Solomon-like approach to cut the baby in half is not available in practice when addressing custody or the division of property. When the judge leaves her office at the end of the day, she hopes she exercised her discretion well, discerning the best interests of the child and equitable division of the assets.
“To listen well is as powerful a means of communication and influence as to talk well.”[x]
Almost without exception, litigants believe that being listened to is as important or more important than the outcome of their litigation experience. This is particularly true for self-represented litigants. A party with an attorney can count on his attorney to explain the proceeding before, during, and after the hearing. A self-represented litigant must rely on his own exchange with the court at a hearing. Confirming that a judge understands, but disagrees, with the position of a party helps that party and the judge move through the process. People have a sort of ownership in the magistrate court; it is the people’s court. The magistrate judge gives dignity and humanity to the people before her by taking the time to listen and explain the rule of law.
In Idaho, the magistrate probate docket is truly the “cradle and grave” practice. TV shows aside, the terms “people’s court” and “family law” move into a different realm when the judge must address long simmering issues that probate can present. Decedent’s estates, wills, trusts, guardianships, and conservatorships fall under the probate code. Most people know only one thing of probate – it is something to avoid. But for magistrate judges, probate is a rich area of the bench full of human drama, surprise, and emotion.
“Death is not the end. There remains the litigation over the estate.”[xi]
A magistrate with a probate docket for the day may be required to assess testamentary capacity or address the validity of a handwritten will. The judge that hears a probate dispute one day will next decide whether grandparents are entitled to appointment of guardianship for their grandchild. There is satisfaction in helping parents of a young man with developmental disabilities attain guardianship for their son and in measuring the limitation appropriate for the exercise of that guardianship.
Attendant with the probate code and its dealings with our mortality are the adoption statues. In these rare moments, the court is part of the creation of a family. Adoptions are often the most rewarding part of a magistrate’s day.
On the other hand, the saddest and hardest of days come a few chapters apart in the same code book, as magistrates are also called upon to preside over the Child Protection Act cases. These cases may end in litigation over termination of parental rights, the weightiest of cases a magistrate may hear. There are also good days when a magistrate can dismiss a case after the parents have taken the steps in their case plan to learn skills for protection of their child.
The magistrate judge’s service in the protection of society does not end with the bench and the clock. Before or after regular court hours, many judges preside over treatment courts. Treatment courts, including DUI courts, drug courts, mental health courts, and domestic violence courts are designed to help identify, address, and improve or resolve the underlying social justice problems such as emotional trauma and mental health issues that bring a party into contact with the court system through criminal behavior. Some judges also have “attendance courts,” designed to help address social justice issues in families that may manifest when a child is not getting to school on a regular basis. In this regard, the judge and her court are like the tree that one blind man perceived the elephant to be. A strong trunk provides support and strength, and the branches reach out to cover many Idahoans who participate in such programs throughout the state.
The day for the magistrate ends with another visit to the Q. Many magistrates stay late into the evening working on decisions, preparing for the hearings in the day to come, reading briefs, confirming penalties, and reviewing affidavits. Once home, she makes sure her phone is by the bedside, waiting for the next call.
“I saw you from across the bar. Stay there.”[xii]
It would be remiss to not address the effect of coronavirus upon the day-to-day lives of the magistrate judges and the parties that appear before them. Ask almost any judge, and she will tell you that she became a magistrate because she wanted to serve the people in the community. She will also tell you that interaction with the parties, counsel, and colleagues are the best part of the job. The computer screen, while invaluable to move the court process forward during the pandemic, is simply no substitute for true interpersonal communication. We miss the attorneys, the parties, and the rich texture of the personal relationships in the Idaho bar.
But the magistrate judges are still here – stick around you may see one.
“I saw one once,” said Piglet. “At least I think I did,” he said. “Only perhaps it wasn’t.”
“So did I,” said Pooh, wondering what a Heffalump was like.
“You don’t often see them,” said Christopher Robin, carelessly.
“Not now,” said Piglet. “Not at this time of year,” said Pooh.[xiii]
While the actual sighting in person of a magistrate judge may be a rare thing these days, there is no doubt that, like the heffalumps, we are around.
Hon. Jennifer L.K. Haemmerle is the Judge of the Magistrate Division for Blaine County, Idaho. Judge Haemmerle graduated from the University of Idaho in 1985 with a bachelor’s degree and in 1989 from the University of Idaho College of Law. Judge Haemmerle was appointed as a judge by the Fifth Judicial District Magistrate Commission in October 2014 and sworn in on January 2, 2015. She currently is a member of the Misdemeanor Sentencing Alternatives Committee and the Guardianship and Conservatorship Committee and still a Vandal.
[i] The Beatles, Sgt. Pepper’s Lonely Hearts Club Band, (Capitol Records 1990) (1967).
[ii] John Godfrey Saxe, The Blind Men and the Elephant (1872).
[iii] Philadelphia (Clinica Estetico 1993).
[iv] I.C.R 46, 46.2 (Bail or Release on Own Recognizance; No Contact Orders).
[v] Arthur Sullivan and W. S. Gilbert, The Mikado (1885).
[vi] Fyodor Dostoevsky, Crime and Punishment (1866).
[vii] I.C.A.R 5, 5.1.
[viii] Kramer vs. Kramer (Columbia Pictures 1979).
[ix] Leo Tolstoy, Anna Karenina (1878).
[x] John Marshall, former Chief Justice of the United States Supreme Court.
[xi] 8 The Collected Works of Ambrose Bierce 365 (1911).
[xii] Internet MEME, “#Social Distancing Pick Up Lines” (2020).
[xiii] A. A. Milne, Winne-the-Pooh (1926).
By Lori Fleming
The following is a list of rule amendments approved by the Idaho Supreme Court between May 1, 2019, and May 5, 2020. The orders amending these rules can be found on the Idaho Supreme Court website at http://www.isc.idaho.gov/recent-amendments. Be sure to check the Idaho State Bar E-bulletin for your chance to comment on proposed amendments before adoption. Unless otherwise indicated, all amendments and new rules are effective July 1, 2020.
Idaho Appellate Rules
The Idaho Appellate Rules Advisory Committee is chaired by Chief Justice Roger Burdick.
Rule 23. Filing Fees and Clerk’s Certificate of Appeal – Waiver of Appellate Filing Fee. Idaho Appellate Rule 23 sets forth the filing fees the Clerk of the Supreme Court is required to charge for appeals and petitions. Consistent with the language of I.C. § 72-1375, the rule was amended to provide that individual claimants under the employment security law are exempt from paying any filing fees. The amendment took effect June 26, 2019.
Idaho Court Administrative Rules
The Idaho Court Administrative Rule 32 Advisory Committee is chaired by Chief Justice Roger Burdick.
Rule 32. Records of The Judicial Department – Examination and Copying – Exemption From and Limitations on Disclosure. Subsection (g) of Idaho Criminal Rule 32 lists a number of court records that are exempt from disclosure and currently provides that any willful or intentional disclosure of such records may be treated as contempt of court. The rule has been amended to also make the willful or intentional “accessing” of sealed or exempt court records subject to contempt. In addition, subsection (j)(6) of the rule, governing the cost of copying records, has been amended to provide that the cost to make a paper copy of any record filed in a case with the clerk of the district court “shall be determined by the clerk, and shall not exceed the amount specified in I.C. § 31-3201.”
Rules 37 and 38. Minimum Standards for Preservation, Destruction, or Disposition of Trial Court Records. Idaho Court Administrative Rules 37 and 38 have been amended to provide that the digital entry of court records into the court’s automated case management system (i.e., the scanning of court records into Odyssey) is sufficient to meet the preservation requirements of the rules. As amended, the rules clarify that, once a document has been digitally entered into Odyssey, it becomes part of the permanent court record and the paper copy may be disposed of unless specifically prohibited by rule. Rules 37 and 38 have also been amended to prohibit the destruction of any record that is required to be filed conventionally pursuant to Idaho Rules for Electronic Filing and Service 5(a), 5(c), 5(f), or 5(k). Examples of such records include original wills, demonstrative or oversized exhibits, sexually explicit images of a minor, and any other document or thing that cannot be scanned or otherwise converted to a digital format.
The following amendments to the Idaho Court Administrative Rules resulted from the work of the Guardianship and Conservatorship Committee, which is chaired by Judge Christopher Bieter.
Rule 54. Guardianships and Conservatorships. The rule was amended to require individuals seeking appointment as a guardian or conservator of a minor child to complete the Idaho Supreme Court’s online training course for guardians and conservators.
Rule 54.4. Visitor Reports. Subsection (d) of the rule was amended to require visitors in guardianship or conservatorship cases to complete and attach to their visitor reports a differentiated case management tool with monitoring recommendations. The differentiated case management tool is an assessment tool that is designed to identify those guardianship and conservatorship cases in which increased monitoring and allocation of resources may be required. The tool itself is a questionnaire that evaluates the applicability of certain risk factors to the specific case. Based upon the responses, the case is assigned to either a low, medium, or high monitoring track.
Rule 54.5. Idaho Department of Health and Welfare Evaluation Committee Reports. Consistent with the amendment to Rule 54.4 for visitor reports, subsection (c) of Idaho Court Administrative Rule 54.5 was amended to require the Idaho Department of Health and Welfare Evaluation Committee in guardianship or conservatorship cases to complete and attach to its committee reports a differentiated case management tool with monitoring recommendations.
Rule 54.6. Professional Guardian and Conservator Certification. As the population of Idaho grows, the need for professional guardians and conservators is expected to grow with it. Currently, persons who provide guardianship or conservatorship services for a fee are not required to have a professional license, show completion of any relevant education beyond the Idaho Supreme Court’s basic online training course, follow standard ethical guidelines, or otherwise prove they are competent to provide needed services to some of Idaho’s most vulnerable citizens. Consistent with I.C. § 31-3201G(3), which recognizes the importance of the adoption of standards of practice for guardians, the new Idaho Court Administrative Rule 54.6 provides a mechanism to ensure that professional guardians and conservators meet minimum standards of competency by requiring that they be certified by the Center for Guardianship Certification unless certification is waived by the court for good cause. While the rule only makes certification mandatory for professional guardians or conservators, as defined in subsection (a), subsection (d) provides that the court can for good cause require any guardian or conservator to be certified.
Idaho Criminal Rules
The Idaho Criminal Rules Advisory Committee is chaired by Justice Richard Bevan.
Rule 4. Arrest Warrant; Summons: Determination of Probable Cause. Idaho Criminal Rule 4 was amended to provide a process for the application and issuance of arrest warrants by telephone or other electronic means. The amendments to the rule were modeled after Idaho Criminal Rule 41, relating to the issuance and execution of search warrants. The new subsections (a)(1) through (a)(3) of Idaho Criminal Rule 4 require that the finding of probable cause supporting an arrest warrant be based on substantial evidence and that the warrant application be provided in the form of an affidavit or sworn oral statement. New subsection (a)(4) authorizes the magistrate to issue a warrant based on information communicated by telephone or other electronic means, provided that the affidavit or sworn oral statement supporting the issuance of such warrant must be filed with the clerk of the court and transcribed by the court upon request. Subsection (d)(1) was amended to permit the use of an electronic signature and to allow a law enforcement officer to sign a magistrate’s name to the warrant upon receiving verbal authorization from the magistrate to do so. The rule further provides that, following service of the warrant, the warrant must be returned to the magistrate, who must then endorse his or her name on it and enter the date it was returned to the magistrate, although the failure of the magistrate to do so does not in itself invalidate the warrant. Finally, subsection (d)(2) was amended to allow for the presentation and transmission of an arrest warrant by email, facsimile, or other electronic process. The amendments took effect August 23, 2019.
Rule 5. Initial Appearance Before Magistrate; Determination of Probable Cause; Advice to Defendant; Plea in Misdemeanors; Initial Appearance on Grand Jury Indictment. The Idaho Supreme Court has adopted two separate mandatory Notification of Rights forms, one for use in felony cases, and one for use in misdemeanor cases. Subsection (e) of Idaho Criminal Rule 5 was amended to clarify that, when a defendant is charged with both a felony and a misdemeanor, only the “Notification of Rights – Felony” form found in Appendix A of the Idaho Criminal Rules must be signed by the defendant and submitted to the magistrate at the initial appearance. The amendment took effect August 1, 2019.
Rule 5.1. Preliminary Hearing; Probable Cause Finding; Discharge or Commitment of Defendant; Procedure. Idaho Criminal Rule 5.1(a) sets forth the procedure that must be followed when a defendant charged by complaint with any felony waives his or her right to a preliminary hearing. The rule was amended to require that, if a waiver a preliminary hearing form is used, it must be the Supreme Court “Waiver of Preliminary Hearing” form contained in Appendix A of the Idaho Criminal Rules. The amendment took effect August 1, 2019.
Rule 25. Disqualification of Judge. Subsection (a) of Idaho Criminal Rule 25 was amended to clarify that the right to disqualification of a judge without cause applies only in felony and misdemeanor criminal actions. The intent of the amendment was to make clear that there is no right to disqualification without cause in infraction proceedings. The amendment took effect April 21, 2020.
Rule 28. Determination of Good Cause Regarding Statutory Trial Time Requirements. The Court adopted this new rule in response to the state of emergency declared as a result of the COVID-19 pandemic. The rule sets forth a list of factors a trial court must consider in determining whether good cause exists to continue a criminal trial beyond the time requirements set forth in Idaho Code § 19-3501. Among the factors the court must consider are whether the delay beyond the statutory speedy trial deadline is necessary to safeguard the health or safety of the parties, jurors, attorneys, witnesses, court staff, or the public, and whether the delay was necessitated by the declaration of an emergency by the President of the United States or the Governor of the State of Idaho. The new rule took effect March 18, 2020.
Rule 32. Presentence Investigations and Reports. Idaho Criminal Rule 32 provides that, once prepared, any presentence report may be released to any district judge for that judge’s use in sentencing. While it is clear under the rule that a sentencing court may consider a presentence report prepared for a different case, the rule does not currently require that the parties be notified of the court’s intent to do so. To ensure that the parties receive such notice, subsection (g)(1) of Rule 32 has been amended to provide that full disclosure of the contents of “any presentence report considered by any sentencing court” must be made to the defendant, defendant’s counsel, and the prosecuting attorney. Subsection (h)(1) of the rule has also been amended to require that all presentence reports be filed and kept as sealed court records, the disclosure of which is prohibited except as expressly allowed by rule or by a court order entered pursuant to Idaho Court Administrative Rule 32(i). Finally, consistent with the requirement of Idaho Criminal Rule 32 that presentence reports be sealed by court order after use in the sentencing procedure, the Idaho Supreme Court has entered an administrative order requiring the Administrative Office of the Courts to identify and seal all unsealed presentence reports in cases in which sentencing has occurred. The administrative order was effective May 4, 2020.
New and Revised Appendix A Forms. The Court adopted a mandatory “Warrant of Arrest (Felony)” form and a mandatory “Warrant of Arrest (Misdemeanor)” form, both of which are contained in Appendix A to the Idaho Criminal Rules. In addition, the Court made a technical revision to the Certificate of Service on the mandatory “Waiver of Preliminary Hearing” form, contained in Appendix A, to reflect that service of the form may be made by someone other than the Clerk of the Court.
Idaho Infraction Rules
The Idaho Misdemeanor/Infraction Rules Advisory Committee is chaired by Judge Michael Oths.
Rule 9. Judgment – Fixed Penalty Plus Court Costs for Infractions – Withheld Judgment and Suspended Penalties Prohibited – Deferred Payment Agreements. The Infraction Penalty Schedule embedded in Idaho Infraction Rule 9 has been amended to correct some costs/fees inaccuracies, to remove what was formerly the infraction “Texting While Driving,” and to add the new infraction “Operation of Motor Vehicle While Operating Mobile Device.” Formatting changes have also been made in the interest of consistency and to facilitate the ease of maintaining an accurate schedule.
Idaho Juvenile Rules
The Juvenile Justice Advisory Committee is chaired by Judge Mark Ingram.
Rule 10. Change of Venue; Temporary Transfer of Supervision. The rule has been amended to set out the process for “temporary transfers of supervision” (aka “courtesy supervision”) in juvenile probation cases. The new subsection (b), which is modeled after the process for transferring supervision in adult misdemeanor cases, requires the sending county’s probation department to contact and forward its file and other relevant information to the receiving probation department within 7 days. The rule also clarifies that a temporary transfer of supervision is not a change of venue and shall not result in the opening of a court case in the receiving county.
Rule 17. Sentencing Hearing. Many magistrate courts order and authorize, as a condition of probation, the use of discretionary detention time in juvenile cases. There was, however, no rule setting out the procedure. This amendment to Idaho Juvenile Rule 17 adding subsection (f) defines “discretionary detention time” and sets forth procedures that must be followed. The new rule language states that the discretionary detention time cannot be applied to status offenders. The sanction is permitted upon a finding of reasonable cause to believe the juvenile violated any term or condition of probation and written order of the court. The amendment is modeled after Idaho Criminal Rule 33(e) and limits the amount of discretionary time a juvenile may serve to no more than 3 days and requires that the juvenile be given credit for any time served against the total detention time ordered in the judgment.
Rule 18. Violation of Formal Probation; Violation of Informal Adjustment. Idaho Juvenile Rule 18 was amended to clarify a court’s options following a violation of formal probation or informal adjustment. As amended, the rule states that, upon finding a violation, the court may enter an order imposing any suspended term of detention or suspended commitment but must comply with the standards and procedures for commitment “pursuant to Idaho Juvenile Rule 19.” It also clarifies that, in the case of an informal adjustment, the court may impose any sentence available to it “pursuant to the Idaho Juvenile Corrections Act.”
Idaho Misdemeanor Criminal Rules
The Idaho Misdemeanor/Infraction Rules Advisory Committee is chaired by Judge Michael Oths.
Rule 6. First Appearance of Defendant – Plea of Defendant – Trial Date Notice or Continuance Notice. Idaho Misdemeanor Criminal Rule 6(c) requires a defendant appearing for the first time before the court on a uniform citation or sworn complaint to sign and submit a form entitled “Notification of Rights – Misdemeanor.” The rule was amended to clarify that, when a defendant is charged with both a felony and a misdemeanor, only the “Notification of Rights – Felony” form found in Appendix A of the Idaho Criminal Rules must be submitted. The amendment took effect August 1, 2019.
Idaho Rules of Civil Procedure
The Idaho Civil Rules Advisory Committee is chaired by Justice Robyn Brody.
Rule 69.1/Appendix B. Garnishment Forms. The Court amended the Rule 69.1(a) “Notice of Exemptions” form and the Rule 69.1(c) “Claim of Exemptions or Third Party Claim” form to reflect statutory increases to the dollar values of certain exemptions. The revised forms were effective March 23, 2020, and are available on the Idaho Supreme Court website.
Idaho Rules of Evidence
The Evidence Rules Advisory Committee is chaired by Judge Molly Huskey.
Rule 101. Title and Scope. Subsection (e) of this rule was amended to clarify that extradition or rendition proceedings are among the criminal proceedings to which the Idaho Rules of Evidence do not apply. The amendment took effect May 28, 2019.
Rule 805. Hearsay within Hearsay. The rule was amended to state that hearsay within hearsay is not excluded under the hearsay rule “if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” The amendment took effect May 28, 2019.
Lori Fleming received her Juris Doctorate from the University of Idaho College of Law in 1998. After law school, she completed a two-year clerkship for United States Magistrate Judge Mikel H. Williams. Following her clerkship, she worked for almost 20 years as a Deputy Attorney General in the Appellate Unit of the Criminal Law Division of the Idaho Attorney General’s Office. She has been the Staff Attorney for the Idaho Supreme Court since September 2019.
By Johnathan R. Baldauf
The Indian Child Welfare Act (“ICWA”) is a federal law enacted in 1978 that sets standards designed to “protect the best interests of Indian children and to promote the stability of Indian tribes and families.”[i] The ICWA generally applies to Indian children who may be removed from the custody of their parents. The law protects children who are eligible for membership in federally-recognized tribes and ensure that tribes have priority in placement and is “addressed to the concern that ‘an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.’”[ii] The heightened requirements of the ICWA are designed to maintain the culture of the tribe.
Because the ICWA does not apply to custody disputes between parents or family members, many family law practitioners are not familiar with the law. However, any practitioner dealing with adoption, guardianships, or the termination of parental rights should ensure that they have reviewed their case to determine if the ICWA might apply. While the ICWA only applies to involuntary proceedings, ensuring its requirements are met in voluntary proceedings can make a clear record and can address the concerns the ICWA was designed to address. This article will help practitioners understand the ICWA, when it applies and provide some practical advice on how to navigate it.
Application of ICWA
The ICWA applies when 1) a child who is a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of a tribe is 2) involved in a child custody proceeding, as defined by 25 U.S.C. § 1903(1). Tribes have the final say in determining who is eligible for membership. The statute limits “child custody proceedings” to foster care placement, termination of parental rights, pre-adoptive placement (temporary placement in a foster home), and adoptive placement. The statute specifically excludes non-status juvenile offenses and divorce proceedings.
Requirements When ICWA Applies
When the ICWA applies, “active efforts” must be taken to prevent the breakup of the Indian family. These active efforts include: notice must be given to the parents and tribe (or tribes), the tribe must be allowed to intervene, consideration of the social and cultural standards of the parents and tribe must be taken into consideration when placing a child, and additional findings are necessary if rights are to be terminated.
The court must be satisfied that active efforts have been made to prevent the breakup of the Indian family. Active efforts are affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. The Bureau of Indian Affairs provides several examples, including conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; taking steps to keep siblings together where possible; and identifying community resources.[iii] Active efforts must be documented in detail and, to the extent possible, should involve and use the available resources of the extended family, the child’s Indian tribe, Indian social service agencies and individual Indian care givers.[iv] “The term active efforts, by definition, implies heightened responsibility compared to passive efforts.”[v] “[A]s opposed to passive efforts such as simply developing a plan for the parent to follow, active efforts require that the state actually help the parent develop the skills required to keep custody of the children.”[vi] Referrals are not enough; the petitioners must actively engage the family.
Notice and The Opportunity to Intervene Are Required.
Notice must be given to the child’s tribe, parent, and (if applicable) the child’s custodian. Generally, notice is given to the tribe itself, although if the identity or location of the tribe cannot be determined, notice can be given to the Secretary of the Interior, who is then required to give notice to the tribe. No hearings can be held until at least 10 days after the receipt of notice.
ICWA allows the child’s tribe to intervene “at any point in the proceeding.”[vii]
Jurisdiction is Concurrent.
In Idaho, the State has concurrent jurisdiction with the Tribes over parental termination proceedings. While ICWA includes language giving a Tribe “jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe. . .” an exception exists to allow states to maintain jurisdiction “where such jurisdiction is otherwise vested in the State by existing Federal Law.”[viii] The passage in 1953 of federal Public Law 280 allowed for states to “assume jurisdiction over reservation Indians” and opened the door for the state to exert jurisdiction over those issues.[ix] Idaho stepped through that door in 1963 with the passage of Idaho Code § 67-5101, directly assuming and accepting jurisdiction for dependent, neglected, and abused children.[x]
Preference is Required.
For adoptive placement, ICWA requires preference to be given, in the absence of good cause otherwise, to placement with a member of the child’s extended family, other members of the child’s tribe, or other Indian families. For pre-adoptive or foster care placement, preference is given to members of a child’s extended family, foster homes licensed or approved by the tribe, Indian foster homes licensed or authorized by a non-Indian licensing authority; or an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs. If the child’s tribe establishes a different order of preference, the agency or court placing the child “shall follow” that preference, so long as the placement is the least-restrictive setting appropriate to the particular needs of the child.[xi] Where appropriate, the preference of the child and parent are also considered.
Additional findings are required in ICWA cases when placing a child in foster care or terminating parental rights. Before placing a child in foster care, a court must make a determination, supported by clear and convincing evidence including the testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian is likely to result in emotional or physical damage to the child.
No termination of parental rights may be ordered without a determination, supported by evidence beyond a reasonable doubt including testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian is likely to result in serious emotional or physical damage to the child. A finding of serious emotional or physical damage must be made in addition to the requirements of Idaho Code §§ 16-2005 and -2009 that the grounds for termination have been met based upon clear and convincing evidence.
The failure to meet the requirements of ICWA can have severe repercussions for a petitioner’s case. If the requirements of ICWA are not met and a child is found to have been improperly removed, 25 U.S.C. § 1920 requires courts to decline jurisdiction and return the child to his parent or Indian custody unless returning the child would subject the child to a substantial and immediate danger or threat of such danger.
Example of ICWA in Practice in Idaho
Recently, ICWA has been a hot topic in Idaho courts. The Idaho Supreme Court heard two cases involving ICWA in 2015 and another in 2016. Idaho Dep’t of Health & Welfare v. Doe, one of the 2015 cases, can serve as an example of how ICWA can apply in a child protection case. In that case, a mother appealed from an order terminating her parental rights.[xii]
TSD, Doe’s son, was removed from Doe’s custody in 2012. An officer responded to a call reporting an unattended toddler. When the officer arrived, he recognized the toddler as two-year-old TSD. He made contact with Doe, who, along with three minors, was intoxicated. Doe expressed concern that she had a problem with alcohol and said she needed treatment. The officer took TSD into custody pursuant to the Child Protective Act.
TSD was placed in the care of Doe’s aunt, an extended family member. At the next hearing, the court granted legal custody to the Idaho Department of Health and Welfare (“DHW”) and determined that TSD was an Indian child. Because of TSD’s status as an Indian child, ICWA applied.
DHW submitted an extensive case plan with the goal of reunifying TSD with his parents. The plan was endorsed by the court. The plan called for Do to complete substance abuse treatment, a mental health evaluation, and parenting classes. Doe was also to abide by the terms of her probation, attend TSD’s medical and therapy appointments, and attend regular visits with TSD.
After a four-day trial where the court heard testimony from fifteen witnesses, the magistrate court granted the State’s petition to terminate Doe’s parental rights. Doe did not appear at any part of the trial. The court found by clear and convincing evidence that TSD’s parents neglected and abandoned him and that his best interests would be served by terminating their parental rights. Because ICWA applied, the court made additional findings that DHW made “active efforts” to prevent the breakup of the family and found, by evidence beyond a reasonable doubt, that continued custody of TSD by DOE would likely result in serious emotional or physical harm to him.
Doe appealed, claiming that first, she had requested additional treatment and was told none was available and second, that the foster mother interfered by objecting to providing Doe with contact information for a child care facility.
The Idaho Supreme Court found that DHW provided appropriate active efforts. DHW arranged for weekly supervised visits with TSD, but Doe stopped participating the visits, making 23 of the 77 visits. TSD was enrolled in individual counseling specifically designed to strengthen his relationship with his parents and Doe was encouraged to attend, but she only attended 3 of the 80 appointments. TSD was scheduled for regular medical and therapeutic appointments to understand and address his developmental delays, but Doe only attended 5 of the 64 speech therapy appointments.
DHW arranged for parenting classes for Doe to take, but she dropped out and did not return. Finally, DHW arranged for Doe to participate in multiple drug and alcohol treatment programs, Doe completed one and dropped out of another and resumed her regular abuse of alcohol. Doe had almost no contact with DHW for the eleven months leading up to the trial to terminate her rights.
In affirming the termination, the Idaho Supreme Court noted that even if DHW failed in the ways Doe claimed, “one or two failures on the part of DHW do not entail wholesale failure with respect to the active efforts requirement.” The case fell under the auspices of ICWA, DHW made consistent efforts to involve the family in efforts to avoid breaking up the family, and additional findings were made to satisfy the requirements of ICWA.[xiii]
As this article demonstrates, when handling a situation where parental rights may be terminated, it’s recommended that you determine if any of the children or their parents are members of a tribe. This threshold determination may require additional research including direct contact with a tribe to determine if a potentially eligible person is a member. If your case involves a tribal member, the ICWA has specific requirements that must be met. Hopefully, this article will provide you with a way path under the ICWA.
Johnathan R. Baldauf is a founding partner of Baldauf Masser, LLP, a small Boise-based firm focused on family law and criminal defense. When not handling those issues, he enjoys hanging out with his girlfriend, Shannon, and dog, Echo (a German Shepherd), game nights, trivia, and going to the gym.
[i] 25 U.S.C. 1901, et al.
[ii] IDHW v. Doe, 157 Idaho 920, 923, 342 P.3d 632, 635 (2015).
[iii] 25 CFR § 23.
[iv] 44 FR 67584.
[v] In re A.N., 325 Mont. 379, 384, 106 P.3d 556, 560 (2005).
[vi] Idaho Dep’t of Health & Welfare v. Doe, 152 Idaho 797, 805, 275 P.3d 23, 31 (Ct. App. 2012) (quoting Dashiell R. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 849 (Alaska 2009)).
[vii] 25 U.S.C. § 1911.
[viii] 25 U.S.C. 1911(a).
[ix] Pub. L. 83-280.
[x] See Doe v. Doe, 158 Idaho 614, 620, 349 P.3d 1205, 1211 (2015).
[xi] 25 U.S.C. 1915(c).
[xii] 157 Idaho 920, 921, 342 P.3d 632, 633 (2015).
[xiii] 157 Idaho 920, 926, 342 P.3d 632, 637-8 (2015).
By Kelsey J. Nunez
The desire to write this article came to me while I was watching a TV show. One of the characters was a super rich, super popular high school bully. He was so mean, exhibiting piercing cruelty and callousness. It was easy to despise him. But as his character developed, we started to get glimpses into his home life. A father who was always belittling him, a distant mom who was drunk a lot.
Then all of a sudden the scene that made me cry with empathy hit – his dad takes him into a room with a belt, and as the door closes, the camera pans to his mom who finishes her martini while she listens to the sounds of his pain in the other room. This well-connected and admired family had a horrible secret, and the impacts of their physical and emotional abuse was spreading to the son’s victims at school.
As practitioners in the child protection space, we know about the consequences to society when abused children do not get the help they need to heal their traumas, break the cycle of violence, and avoid becoming abusers themselves. I became curious about the impacts of stereotypes and privilege and the common perception that child abuse and neglect is a poor-people issue. That is clearly not true – child abuse occurs in all socioeconomic classes. But does society treat wealthy abusers and their victims differently?
In sum, the answer is yes. While child protection statutes on their face apply to all children equally, affluent abusers tend to be better equipped at keeping the abuse private and navigating the medical and legal system to shield themselves from the consequences.
Child abuse and neglect may be underreported in affluent communities
Many authors have explored why poverty conditions can lead to child abuse and neglect. It makes logical sense that a parent predisposed to harming their children may struggle even more under the pressures of income insecurity and lack of child care, adequate housing, and food. While poverty-based suffering is real and deeply problematic, the child protection system has been criticized for missing child abuse in affluent communities while demonstrating over-interventions and biases against poor parents.[i] There are many nuances to using child protection statutes to alleviate harms associated with poverty. But this article doesn’t go there – it focuses on children at the opposite end of the spectrum.
Abuse and neglect happen in families with enough to eat, a nice home, and plenty of economic resources, but it is often addressed differently by community members, mandatory reporters, law enforcement, and the courts. This issue was flagged in the oft-cited 1981 National Study on the Incidence and Severity of Child Abuse and Neglect, which showed higher levels of abuse in lower income families, noting “the income distribution of children reported to CPS is markedly different than the general population distribution,” and acknowledged that some advocates think this may be due in part to underreporting of higher income families.[ii]
I’m not aware of any modern data on child abuse and household income that shows a proportionate distribution of CPS cases among income levels, or any studies or reports that prove or disprove underreporting. Because the data is what it is, the conversation is mostly conceptual and exploratory. While it’s possible that poor people abuse and neglect their children more than wealthy people do, it is also possible that there may be “skewed perception, detection, and enforcement”[iii]of abuse and neglect in affluent communities. If our goal is to protect more children, then we should seek to understand any inherent biases in the child protection system and how we individually operate within it.
To that end, what follows is a summary of the two main theories of why child abuse in affluent families may be underreported: affluent families have more privacy and affluent abusers have more power to fight government interventions.
The goal here is not to criticize hard-working child protection advocates doing their best, but instead to shine light on systemic biases so we can all be more aware and effective in implementing the Child Protection Act to benefit all socioeconomic classes of children.
Affluent families have more privacy
Families who receive subsidized assistance, such as food stamps, temporary assistance to needy families, Section 8 housing, and Medicaid, tend to be observed and scrutinized by more people affiliated with the state. They are also more likely to be subject to drug and alcohol abuse evaluations in exchange for receiving such assistance. As such, evidence of abuse or neglect is more likely to be perceived by someone unconnected to the family and more willing to report them.
Wealthier families, on the other hand, are better able to keep the goings-on of their homelife to themselves and a small circle of private doctors, schools, and support staff. While doctors, teachers, and counselors are mandatory reporters, there is a risk that they could be compelled to protect the privacy of, or seek alternatives to criminal justice for, a wealthy abuser that pays them well or exerts social influence over them. Less nefarious is the unconscious bias associated with giving “clean, well-to-do” people the benefit of the doubt in suspicious circumstances.
Affluent abusers have more power to fight government interventions
For a variety of reasons, law enforcement can be more intimidating for people who do not have economic means to mount a legal defense or are already scared of police. Abusers with higher income levels and powerful social networks are often more confident in exercising private property/civil rights and challenging the authority of social workers to get involved. They are able to afford private legal counsel to assert riskier positions and resist investigations while fighting each stage of a child protection proceeding, and they may feel more entitled to file formal complaints against child protection agencies.
Awareness can help more children
It is important for attorneys and practitioners in this space to be aware of, and work to reduce the impacts of, these potential biases so we can get more children and families the help they need to break the cycle of violence and neglect.[iv]We know that children who are abused and neglected that don’t receive any interventions are statistically likely to suffer mental health issues into their adult lives and become abusive themselves. Money alone cannot protect a child from these outcomes.
Kelsey J. Nunez‘s boutique solo practice is dedicated to social entrepreneurs and collaborative culture, and she volunteers as an attorney for guardians ad litem in the Fourth Judicial District. In addition to lawyering, Kelsey owns The Vervain Collective, a plant-based apothecary with a natural health treatment room in Garden City.
[i] See generally, David Pimentel, Punishing Families For Being Poor: How Child Protection Interventions Threaten The Right To Parent While Impoverished, 71 Okla. L. R. 885 (2019); Janet L. Wallace, Lisa R. Pruitt, Judging Parents, Judging Place: Poverty, Rurality, And Termination Of Parental Rights, 77 Mo. L. Rev 95 (2012); Jonathan L. Hafetz, “A Man’s Home Is His Castle?”: Reflections On The Home, The Family, And Privacy During The Late Nineteenth And Early Twentieth Centuries, 8 Wm. & Mary J. Women & L. 175 (2002); Kate Hollenbeck, Between A Rock And A Hard Place: Child Abuse Registries At The Intersection Of Child Protection, Due Process, And Equal Protection, 11 Tex. J. Women & L. 1 (2001).
[ii] Department of Health and Human Services, National Study on the Incidence and Severity of Child Abuse and Neglect (Sept. 1981), at 38.
[iii] Pimental, 71 Okla. L. R. 885 at 904.
[iv] Another interesting resource is the online Reddit thread, “Who else was neglected by affluent parents?”, available at https://www.reddit.com/r/raisedbynarcissists/comments/46vhrl/who_else_was_neglected_by_affluent_parents/. See also, Paracelsus Recovery, Affluent Neglect (Oct. 15, 2015), available at https://www.paracelsus-recovery.com/blog/affluent-neglect/ (describing and offering help for long term impacts from neglect in affluent families).