By R. Jonathan Shirts
Author’s Note: This article is going to be a little different from the usual ABA Meeting Report you have seen in the past. For a full breakdown of what the ABA House of Delegates considered at this year’s Annual Meeting, please visit https://www.americanbar.org/news/reporter_resources/annual-meeting-2023/house-of-delegates-resolutions/. Instead, I want to focus on one particular Resolution unanimously passed by the House of Delegates in August – Resolution 200.[i]
A year ago, at the close of the 2022 American Bar Association (“ABA”) Annual Meeting in Chicago, I was discussing the impact of trauma on the judiciary with a good friend of mine who is now an Associate Justice on the High Court of the Republic of the Marshall Islands. She thought a Resolution on this was “worth the doing,” and introduced me to the Chair of the ABA Judicial Division’s Judicial Security Committee.[ii] I presented them with the idea for a Resolution which would ask for consideration of the impacts of secondary or vicarious trauma on staff in the judiciary, and how that trauma impacts the security of courtrooms. They jumped on board immediately. Over the next nine months, I worked with a number of judges on the Committee from Utah, Pennsylvania, Illinois, and elsewhere, trying to find research or studies that addressed this issue, even tangentially.
We didn’t find much.
As we researched, we came to the conclusion that judicial security is definitely impacted by the mental health and wellness of the staff. In general, society has begun to recognize the impact of trauma, along with being willing to openly discuss mental health and wellness. There are plenty of studies on the impact of trauma on students[iii] or the workplace.[iv] At all levels of the judiciary across the country, it has long been understood and accepted that, due to the nature of their positions, judges must handle a great deal of trauma.[v]
Judges generally don’t deal with the direct trauma from sexual assault, drug abuse, or other criminal actions they are frequently asked to preside over, but, unfortunately, there are some judges who do have to cope with stalking, direct threats, or even murder. It was national news last year when an individual flew across the country with the express intent of ending United State Supreme Court Justice Brett Kavanaugh’s life.[vi] Another recent event that received national attention involved an attack on a federal judge, Judge Esther Salas of the District of New Jersey, whose husband was shot three times and her son killed after a disgruntled attorney who had only appeared once before her, found her personal address online and showed up at her home.[vii] When the attacker was arrested, police found he also had the personal information for three other federal judges on him and that he intended to do harm to each of them, as well.[viii]
These problems are not exclusively for federal judges either; Idaho has seen direct threats against judges, threats which have sometimes been indirectly perpetuated by law enforcement or legislators.[ix] Threats and assaults on judges or their families at all levels have led to an increase in legislation around the country aimed at protecting them.[x] But the majority of the legislation and provided resources, both at the State and Federal levels, has focused on protecting the judges and their families from these direct types of harm.[xi] However, much of the trauma experienced by judges is not from those types of direct traumatic experiences, the majority comes from what is termed either secondary trauma or vicarious trauma.[xii]
Even with all of that legislation and discussion, there is a still a group that seems to have been forgotten: judicial staff – clerks, court reporters, bailiffs, and everyone else in the courthouse who helps move the work of the judiciary forward. Yes, there are correlations that can be made between workplace trauma, or the trauma experienced by correctional officers[xiii] and the impact of trauma on judicial staff, but there are stark differences between the types of trauma experienced by judicial staff when compared to those other groups. Judicial staff all experience similar secondary or vicarious trauma as the judge – court reporters listen to the same trials and sentencings, sometimes more than once; court clerks handle the same sometimes gruesome evidence; law clerks or staff attorneys read much of the same disturbing material. But those experiences don’t seem to be recognized, much less addressed.
The most impactful statement I heard on this issue was from a Maryland Judge and outgoing member of the ABA Board of Governors, Hon. Pamila Brown, who spoke in support of Resolution 200. When discussing a shooting that took place in a courthouse near her, she said:
“I had my staff, I had my bailiffs, I had my judges who were so traumatized that they did not want to appear in court. That courthouse still opened the following day, boarded up with boards, but there was no availability for people to talk about what had happened, and their safety and security […]. If there’s a school shooting or traumatic event in many places in our country, there’s a team of individuals that go in and speak to, typically it would be students, but we don’t have that available to court staff.”[xiv]
As a fellow Delegate from another state put it to me after Resolution 200 passed, “We’ll do whatever it takes to help students or workers after a traumatic incident, but when something traumatic happens in a courthouse? All we’re told is, ‘Be back to work at 8:00 AM tomorrow.’ And that’s not right.”
No, it’s not right. No one who works in the judiciary – judges and staff alike – should feel like they have to just “push it aside” or “leave work at work.” Just because someone happens to work for the courts, does that mean they are expected to pull themselves up by their bootstraps and move on because the problem will “surely go away if those victims would just square their shoulders and think more positively – though I am a vigorous advocate of square shoulders and positive thinking?”[xv] Educational leaders have realized how vital it is for children afflicted with traumatic experiences to be given all of the help and support possible, as soon as possible; religious leaders recognize that prayer alone can’t erase the impact of trauma; but the courts have yet to do more than nod their heads and say what a tragedy it is before moving on to the next case. How many talented employees have courts lost because the employee felt “overwhelmed” by their job without recognizing that feeling was just a mask for the daily trauma they had experienced? How many complain that the pay isn’t enough so they move on, when the pay may have been enough and all they needed was a little extra support?
Every time an attorney walks into a courtroom with a client, they should not have to worry whether the bailiff is going to be 100% focused on protecting everyone in that courtroom and not dwelling on the troubling testimony they heard the previous week from a seven-year-old victim in a lewd and lascivious conduct trial. Someone seeking a protective order from an abusive partner should not have to agonize about whether it has been misplaced because the clerk responsible for it had a breakdown after an angry litigant threatened them and their family. Judges, their staff, and their families should not have to fear being harmed by a deranged individual from their neighborhood who saw a social media post from a law enforcement officer or legislator that personally attacked the judge.
In 2005, the ABA passed a Resolution on judicial security that stated in part, “That the ABA urges the Congress and the Department of Justice to consider whether existing Federal laws are adequate to protect the safety of all persons involved in the Federal judicial process.”[xvi] However, in the last 17 years since that Resolution was passed, not much has been done with the “all persons” piece, especially at the state level. As a judge put it in discussion when we were asking for sponsors of the Resolution, “This seems like common sense. Why haven’t we been looking at this for the last 20 years?” That is the question I started working from as the principal drafter of what became Resolution 200. After the Resolution was accepted for the House of Delegates’ August calendar, I had court personnel from across the country, judges and staff alike, come up and thank me for bringing up this topic because they weren’t sure how to bring up or address it themselves. I heard from many who felt discouraged because it seemed that no one recognized that they were struggling, too.
Now that the Resolution has passed, the hard work really begins. We can’t just stand on the proverbial hill and expect “roast duck to fly in.”[xvii] We must ask ourselves, “What can be done right now for all judicial staff, not just the judges? How can we make things better for the future?” As attorneys and judges, we have a responsibility to advocate for needed change. Encourage those who work in the court system to accept help when they’re feeling overwhelmed. Make therapy and counseling a subject that isn’t taboo by openly promoting your firm’s Employee Assistance Programs or the Lawyer Assistance Program.[xviii] Charles Hamilton Houston, an amazing civil rights lawyer who helped mentor Justice Thurgood Marshall, once stated, “[A] lawyer is either a social engineer or a parasite on society.”[xix] Please, join me in engineering change for everyone in the judiciary. Contact a legislator and encourage them to support an independent and mentally healthy judiciary. Discuss with your County Commissioners how they can support the county employees that work in the courts. Do something, anything. Your own safety may depend on it someday.
R. Jonathan Shirts graduated from the University of Idaho College of Law in 2018 and is currently the Staff Attorney for the Hon. Randy Grove of the Third District. He has also worked as the Staff Attorney for the Hon. Nancy Baskin and Hon. George Southworth. He enjoys good books and spending time in the outdoors with his wife, daughter, and two sons.
[i] https://www.americanbar.org/news/reporter_resources/annual-meeting-2023/house-of-delegates-resolutions/200/. This is a bit of shameless self-promotion as I was the principle drafter of this Resolution. It was sponsored by the National Conference of State Trial Judges who immediately stepped up to the plate when asked. It also received additional support and backing from many other ABA entities including the Judicial Division, the Standing Committee on Ethics and Professional Responsibility, and the Commission on Lawyer Assistance Programs, and a number of State and regional Delegations. To those groups and everyone else who supported this Resolution, Judge Toni Clarke, Judge Pamila Brown, and Tori Jo Wible in particular, I want to personally say, “Thank you.”
[ii] To the members of the Judicial Security Committee, especially Judge John Allen, Judge Stephanie Domitrovich, and Judge John Connor, thank you for your time, enthusiasm, and encouragement.
[iii] A search on Google Scholar for “impact of trauma on students” returns over three million results. See https://scholar.google.com/scholar?hl=en&as_sdt=0%2C13&q=impact+of+trauma+on+students&btnG= .
[iv] A similar Google Scholar search for “impact of trauma on workplace” returns about 560,000 results. See https://scholar.google.com/scholar?hl=en&as_sdt=0%2C13&q=impact+of+trauma+on+workplace&btnG=.
[v] A Google Scholar search for “impact of trauma on judiciary.” shows only 98,800 results. See https://scholar.google.com/scholar?hl=en&as_sdt=0%2C13&q=impact+of+trauma+on+judiciary&btnG=.
[viii] This was not the first time a federal judge’s family has been attacked and killed. A similar attack happened in 2005 when an angry litigant killed the mother and husband of a federal judge. See https://www.splcenter.org/news/2005/03/01/family-judge-targeted-hate-group-murdered.
[ix] In addition to other articles in this issue which detail some of the problems currently facing the Idaho judiciary, the Report included with Resolution 200 discusses one recent event involving threats against an Idaho judge after law enforcement officials posted their disagreement with a sentencing decision on social media. See https://www.americanbar.org/content/dam/aba/directories/policy/annual-2023/200-annual-2023.pdf, pp.1-2.
[x] For example: Idaho (https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2023/legislation/S1059.pdf); Maryland (https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0221); Texas (“Judge Julie Kocurek Judicial and Courthouse Security Act of 2017,” codified in Tex. Gov’t Code Ann. § 552.117). Similar legislation exists or is being considered in many other states. See National Center for State Courts, https://www.ncsctableauserver.org/t/Communications/views/GaveltoGavelDashboard-2023/GaveltoGavel (Select “Security”).
[xi] For example, earlier this year, Congress passed legislation specifically designed to restrict the availability of judge’s personal information. See https://www.uscourts.gov/news/2022/12/16/congress-passes-daniel-anderl-judicial-security-and-privacy-act.
[xii] See, e.g., David Swenson, Ph.D. L.P., Joan Bibelhausen, J.D., Bree Buchanan, M.S.F, J.D., & Hon. David Shaheed & Katheryn Yetter, J.D., Stress and Resiliency in the U.S. Judiciary, Prof. Law., 2020, at 1, 4; https://www.ncsc.org/__data/assets/pdf_file/0033/77676/Secondary-Trauma-and-the-Courts.pdf (discussing studies related to trauma in courts); https://academic.oup.com/book/29490/chapter-abstract/265421842?redirectedFrom=fulltext&login=false (exploring the impact of trauma and stress on the workplace); and https://www.aha.org/fact-sheets/2022-06-07-fact-sheet-workplace-violence-and-intimidation-and-need-federal-legislative (discussing the need for legislative response to violence in the healthcare field).
[xiii] A Google Scholar search for “impact of trauma on correctional officers” showing 48,700 results. See https://scholar.google.com/scholar?hl=en&as_sdt=0%2C13&q=impact+of+trauma+on+correctional+officers&btnG=.
[xiv] See Note i, supra (video on web page, starting at 6:40).
[xv] Jeffrey R. Holland, Like a Broken Vessel, https://www.churchofjesuschrist.org/study/general-conference/2013/10/like-a-broken-vessel?lang=eng.
[xvii] “Man who stand on hill with mouth open will wait long time for roast duck to drop in.” ― Confucius
[xviii] “The mission of the Idaho Lawyers Assistance Program (LAP) is to provide support for lawyers who are experiencing problems associated with substance abuse and/or mental health issues in a safe manner, preserving the reputation and trust of the attorney.” https://isb.idaho.gov/member-services/programs-resources/lap/.
By Donald L. Burnett, Jr.
Author’s Note: This article updates and expands upon an earlier essay (“Civic Education, the Rule of Law, and the Judiciary: A Republic, If You Can Keep It,” 58 The Advocate 26, February 2015. This is the full version of the update article. A shorter version, focusing on issues specifically relating to the bench and bar appears in the print version of the magazine.
Lawyers and judges are acutely aware that we live in hyper-partisan times. In Idaho and across America, public issues are viewed through lenses of identity factions and culture conflicts. Political parties are increasingly dominated by their most extreme constituencies. To many observers, our democracy is struggling − seemingly adrift.
Struggle is not new in the American experience, but there has been an anchor. On September 17, 1787, in Philadelphia, citizens assembled outside Independence Hall as word spread that the deliberations of the Constitutional Convention had concluded. Seeing Benjamin Franklin emerge from the building, a woman in the crowd asked him: “[W]hat have we got—a republic or a monarchy?” Without hesitation, Franklin responded, “A republic . . . if you can keep it.”[i]
Franklin and his colleagues created a distinctive republic—a constitutionally framed democratic republic—in which representative government was combined with the constraint of a written charter. In a single document, the framers addressed two historical abuses of power — the tyranny of the few over the many, and the tyranny of the many over the few. To prevent concentrations of power leading to tyranny of the few over the many, the nation’s new charter dispersed power horizontally across three separate but connected branches of government, and vertically between the nation and the states.[ii] Then, to protect the few from tyranny by the many, the charter – combined with the famous first ten amendments adopted during the ratification process – set forth fundamental rights that could not be overridden by majorities of the moment. In this respect, the resulting Constitution of the United States − although not perfect − was a stunning achievement.
The Role of the Judiciary
The framers entrusted the task of safeguarding this achievement – maintaining the dispersion of power and preserving the enumeration of rights – to an independent and impartial judiciary. Many of the Constitution’s framers had been present when the Declaration of Independence was signed and presented in the same building at Philadelphia. In the Declaration they decried the lack of independence and impartiality among colonial judges, whom King George III had “made dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”
An independent and impartial judiciary was arguably the Constitution’s most innovative and unique feature. Alexander Hamilton declared in the Federalist Papers that the independence of judges was “one of the most valuable of the modern improvements in the practice of government…. [I]n a republic it is a[n] … excellent barrier to the encroachments and oppressions of the representative body.”[iii] “[T]he independence of judges,” Hamilton continued, “may be an essential safeguard against the effects of occasional ill humors in the society” and against “injury of the private rights of particular classes of citizens, by unjust and partial laws.”[iv] Hamilton also explained that the courts would be obliged to pronounce void any statutes contrary to the Constitution, thereby laying the foundation of judicial review.[v] To the question of whether such a judiciary would become too powerful, Hamilton replied that the judges themselves would be subject to the rule of law:
[A] voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them ….[vi]
Thus, judicial independence, as envisioned by Hamilton and other framers of the Constitution, was not a privilege to decide cases according to a judge’s personal preferences or political agenda. It was instead a solemnly conferred duty to decide cases impartially – that is, according to the law and the facts, to avoid an “arbitrary discretion,” and to abide by applicable “rules and precedents.” Judicial independence in this sense carried an obligation, now echoed in today’s codes of judicial conduct for Idaho’s federal and state judges, to act “without fear or favor. Although judges should be independent, they must comply with the law….”[vii] Indeed, the independence of judges is predicated upon impartiality and adherence to the rule of law. This is the anchor that holds firm our democratic republic, and enables our courts, in the memorable words of Justice Hugo Black, to “stand against any winds that blow….”[viii]
Impartiality, Public Perception, and the Idaho Experience
For more than two centuries, the constitutional imperative of an impartial, independent judiciary has endured, although popular support for it has waxed and waned. After all, the concept is not intuitively grasped by the ordinary citizen who has heard since childhood that “in a democracy the majority rules.” Nor is the concept easily accepted by a citizen who views our courts as just another political branch of government, shaped by the same political forces and making the same political decisions that characterize the work of the other two branches.
Exploiting this perception, powerful political and economic interest groups throughout American history have sought to influence the selection of federal and state judges. Today, special interests overtly seek to populate the courts with judges vetted for their viewpoints rather than for their capabilities. The acerbic partisanship of recent federal judicial appointments, coupled with the rising tide of money flowing into the judicial elections of many states, is disturbing evidence that we have entered a waning period of support for judicial independence and impartiality as core values of our constitutional republic.
Unfortunately, this phenomenon has begun to manifest itself in Idaho. Our state courts were national models after the adoption in 1967 of legislation that abolished the old police courts, probate courts, and justice of the peace courts – replacing them with magistrate divisions of the district courts in an integrated statewide judicial system. Court reform also included enactment of Idaho Code section 1-2101 et seq., providing for merit screening of applicants for appointments to the district courts, the Supreme Court and, later, the Court of Appeals. (In a bow to advocates for local control of appointments to lowest-jurisdiction courts, such appointments were made by District Magistrate Commissions.) Merit evaluations would be performed by an Idaho Judicial Council, composed of the Chief Justice plus a district judge nominated by the Supreme Court, two lawyers nominated by the Idaho State Bar, and three citizen members nominated by the Governor – each for a six-year term. All except the Chief Justice, would be subject to ratification by the state Senate.
In this concise, efficient body, the Council’s political composition was balanced; no political party had a majority. Moreover (and importantly), neither the Governor, the Supreme Court, nor the Bar controlled the appointment of a majority of the Council’s members. Judges appointed through the merit selection process would stand for election on nonpartisan ballots at the end of their appointive terms. The values of judicial independence and impartiality, as well as nonpartisanship, were reflected in the system created by the 1967 legislation. These same values underlie the command of Idaho’s Constitution, Article 1, Section 18, that justice be administered “without sale, denial, delay, or prejudice.”
In 2022 the Idaho Legislature began chipping away at this system. The Legislature passed a measure, H.B. 782, that would re-structure and weaken the role of the Idaho Judicial Council. Governor Little vetoed the bill and invited representatives of all three branches of state government to participate in a blue-ribbon Judicial Selection Committee that would “collaborate and identify areas of compromise that will increase … transparency, preserve impartiality, and improve judicial recruitment.” The blue-ribbon committee developed a consensus legislative proposal for 2023; but the Legislature charted its own direction, sending instead S.B. 1148 to the Governor who signed it. The enacted bill has many components, ably summarized by Idaho State Bar Commissioner Mary V. York in an essay she has contributed to this edition of The Advocate. Most significantly:
- S.B. 1148 alters the merit screening function of the Judicial Council by authorizing the Governor to halt the consideration of a slate of merit-screened nominees, ordering the Council to re-open the application process and to submit a second (augmented) list with additional nominees. Such a two-round scenario can give rise to a public perception that the Governor is looking (or has been asked to look) for names of friends or individuals favored by influential interest groups.
- S.B. 1148 expands the Judicial Council from seven to nine members, adding a magistrate judge and another citizen member; increases the number of Council members who can be from a single political party; and provides that all members except the Chief Justice will be appointed by the Governor. (Appointments of the district and magistrate judges, and of the lawyer-members, are made from lists submitted by the Supreme Court and the Idaho State Bar commissioners, respectively.) Appointments are also to be made for four-year rather than six-year terms. The upshot is that Judicial Council membership is more fully controlled by the Governor than was the case under the landmark 1967 legislation.
- S.B. 1148 further requires judges and justices standing for election after their appointive terms to appear on ballots that do not identify them as incumbents. This provision may have an intuitive appeal as seeming to “level the playing field,” but the practical effect is likely to be that in order to gain name recognition and voter support, judges must spend more time campaigning and raising money. Judicial efficiency is impaired whenever time is diverted from judicial duties. More fundamentally, the public’s confidence in the courts is diminished whenever judges (or their supporters) engage in electioneering and fundraising. As former U.S. Supreme Court Justice Sandra Day O’Connor has observed:
“We all expect judges to be accountable to the law rather than [to] political supporters. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not those contributions actually tilt the scales of justice, three out of four Americans believe that campaign contributions affect courtroom decisions. … [T]he perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.”[ix]
The 2023 Legislature also considered a measure, S.B. 1157, that would have prohibited judges and justices who retire before the end of their elective term – thereby creating vacancies to be filled by appointment − from participating in part-time, post-retirement (“Plan B”) service. The bill passed the House of Representatives but was held for amendment in the Senate and was not enacted. It may re-appear, however, in some form in 2024. The bill is problematic, not only because it would be unfair to judges and justices currently in line for retirement and for “Plan B” service, but also because “Plan B” is a cost-effective way to enhance the productive capacity of the judiciary. Moreover, with all due respect to S.B. 1157’s proponents, what the bill apparently seeks to do is make judicial appointments less frequent and merit selection less relevant, thereby pushing the Governor’s office and the Judicial Council to the sidelines.
As the partisan storm intensifies, other proposals may be forthcoming. There appears to be some interest in simply abolishing the Judicial Council and merit selection, resulting in an almost completely elective system. Montana, for example, has eliminated its version of our Judicial Council.[x] There is also interest in making judicial elections partisan rather than nonpartisan. One can hardly imagine a more drastic departure from judicial independence and impartiality. Yet such proposals may find fertile ground among voters, and their representatives, who have lost touch with the history and purpose of judicial independence and impartiality.
This is a problem of civic education. The uniqueness of the judiciary is not well understood. Lawyers and judges, as well as key communicators in fields of education and journalism, have a role to play in addressing this civic education deficit.
The Civic Education Challenge
If this deficit were only a passing phase in a long historical cycle, perhaps we could simply wait for the constitutional ship to right itself. But there are reasons to doubt that the problem will be self-correcting. Surveys show that many Americans today are ambivalent, even skeptical, about the concept of judicial impartiality. In one illustrative poll, conducted by Syracuse University’s Campbell Public Affairs Institute, approximately 30% of respondents would not agree with a statement that judges should be shielded from outside pressure and allowed to make decisions on their own independent reading of the law. Even among the respondents who did agree with that statement, many did not believe our judicial system is actually fulfilling the promise of impartiality. Almost 87% of respondents said partisanship has at least some influence on judicial decisions, and 42% said it has “a lot” of influence.[xi]
A 2021 survey of the public’s civic literacy, conducted by the American Bar Association, has revealed a similar problem. In that survey, respondents were asked to agree or disagree with the following statement: “The nation’s judicial system adheres to the rule of law, under which all individuals are treated equally in the eyes of the law.” Just 56% agreed, 37% disagreed, and 6% expressed no opinion.[xii] These responses may reflect a perception that judges are human and therefore imperfect; but the responses also demonstrate a characteristic noted by a commentator on the Syracuse survey: “Everyone wants to have a neutral and fair system of dispute resolution and everyone also wants to make sure that his or her own side prevails.”[xiii]
Public opinion about the courts is shaped significantly by popular impressions of America’s most visible judicial body, the United States Supreme Court, even though the Court decides only about 75 cases per year, while the federal system as a whole handles roughly 400,000 cases and state courts handle an astonishing 100 million widely diverse matters annually. The Supreme Court occupies an extraordinarily important – but also an extraordinarily narrow – place in the American judiciary. Controversies about the Supreme Court should not be extrapolated to the administration of justice in trial and appellate courts across the nation.
Moreover, controversies about the Supreme Court often are not grounded in a well-informed understanding of the Court’s members or their work. A 2018 survey by C-SPAN showed that only 48% of American adults could name even one member of the Court.[xiv] Concededly, open-ended name questions are not the only way (and may not even be the best way) to gauge public understanding of the Court.[xv] But the naming problem is symptomatic of a deeper lack of familiarity with the Court. Individuals unaware of the Court’s decision-making process – a process constrained by the Constitution and laws, and by what Hamilton called “strict rules and precedents” – tend to view the Court’s decisions in terms of outcomes and, particularly, on whether those outcomes accord with an individual’s personal or political preferences:
“To the average person, the Supreme Court does a good job when it upholds laws the person likes, but a bad job when it strikes down those favored laws …. If the only thing that mattered about the Court were the result of its decisions, there would be little to separate its function from that of a legislative body. Yet Article III of the US Constitution … calls for a Supreme Court – not a Supreme Congress…. Judging the Court based solely on [the outcome of] its decisions undermines this necessary distinction. The Supreme Court’s role is to interpret and apply the Constitution to the laws of the United States, not to determine whether policies are “good” or affirm a particular political ideology.”[xvi]
The public’s result-oriented perspective is exacerbated by the highly partisan process by which potential members of the Supreme Court have been nominated by Presidents and confirmed (or not) by the Senate in recent decades. As mentioned earlier in this essay, Senate confirmation hearings have become acerbic; indeed, they resemble political theatre with partisans on both sides appealing to their political bases by pressing nominees for express or implied commitments to outcomes on hot-button issues. Although the Senators’ efforts in this regard are usually unsuccessful, the hyper-partisanship leaves a lasting impression on the viewing public. It is little wonder that in 2016 a Gallup Poll found that only 42% of respondents approved of the work done by the United States Supreme Court – a figure equal at that time to the Court’s lowest approval rating in the 21st century.[xvii] In the spring of 2023, a Marquette University Law School poll showed that 41% of Americans approve of the job the Supreme Court is doing. The survey responses had a distinctly partisan flavor: The approval rate among self-identified Republicans was 60%, while just 24% of Democrats approved as did 34% of independents.[xviii]
Public perceptions are affected not only by partisan affiliation but also by outcomes in particular cases. This was illustrated in 2022, when the Supreme Court decided the abortion case, Dobbs v. Jackson Women’s Health Organization.[xix] In 2020, before the Dobbs decision was announced, a Pew Research Center poll showed that 70% of respondents expressed a favorable view of the Court; but in a poll conducted in August, 2022, after the Dobbs decision, the percentage of respondents expressing a favorable view dropped to 48%.[xx]
Partisanship in Supreme Court appointments has also adversely affected Congress itself. The hyper-partisan dynamic of Supreme Court appointments arguably has distracted Congress from its assigned constitutional role as the branch of government charged with debating policy and enacting laws.[xxi]
To be sure, some degree of partisanship may be expected in a process by which members of the overtly political branches of the federal government − the legislative and executive − determine the composition of the least political branch, the federal judiciary. But extreme partisanship is not inevitable, nor has it always been the norm. Recall that two brilliant jurists with contrasting jurisprudential philosophies, the late Justices Scalia and Ginsburg, were confirmed by the Senate with votes of 98-0 in 1986 and 96-3 in 1993, respectively.
Result-oriented and partisanship-tainted perceptions of the Supreme Court can carry over into public (mis)understanding of the judiciary in general. This is unfortunate because, as noted earlier, the overwhelming majority of cases are finally decided, not by members of the Supreme Court, but by trial and appellate judges elsewhere in the federal and state judiciaries. Indeed, a state’s supreme court – not any federal court −is the final authority on interpretation and application of that state’s constitution and laws, the only exception being when a case presents an issue that also implicates the national constitution or other federal law.
The judges of these federal and state courts are governed by judicial codes of conduct that underscore the importance of independence and impartiality. Judges in the federal trial courts and circuit courts of appeal are subject to the Code of Conduct for United States Judges,[xxii] which is centered on five principles of judicial behavior:
- A judge should uphold the integrity and independence of the judiciary.
- A judge should avoid impropriety and the appearance or impropriety in all activities.
- A judge should perform the duties of the office fairly, impartially, and diligently.
- A judge may engage in extrajudicial activities that are consistent with the obligations of judicial office.
- A judge should refrain from political activity.
Although U.S. Supreme Court Justices are not governed by the federal Code of Conduct, Congress is now considering legislation to bring them into closer alignment with their lower court counterparts.[xxiii]
Similarly, the Idaho Code of Judicial Conduct, which is broadly consistent with the American Bar Association’s Model Code of Judicial Conduct, contains the following statement in its preamble:
An independent and impartial judiciary is indispensable to our system of justice. The legal system in the State of Idaho is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.
Both the federal code and the Idaho code emphasize the imperative of impartiality by providing that “a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned ….”[xxiv]
Few members of the general public have a full understanding of, or appreciation for, these codes. Yet the perceptions of the general public matter greatly to the health of our republic. Theodore Roosevelt famously observed that the long-term durability of a republic depends upon the “average citizenship of the nation.”[xxv] If today’s “average citizen” does not accept, or does not understand, the importance of an independent and impartial judiciary, the perceived legitimacy of American courts – and the respect accorded to the courts’ judgments — will (continue to) erode.
Social science literature shows, unsurprisingly, that the greater an individual’s knowledge of the judicial system (whether acquired through formal education or actual experience such as sitting on a jury), the more favorable is that individual’s opinion of the courts and of the judiciary’s duty to decide cases impartially.[xxvi] Most people, however, have limited experience with the courts, and their knowledge – to use a school report card phrase – is “in need of improvement.”
Deficient understanding of the judicial function is widely regarded as part of a general civic literacv “crisis” in America. There is much distress over surveys, such as one cited several years ago by the U.S. House of Representatives, showing that more teenagers could name the Three Stooges and three judges of the “American Idol” television program, than could identify the three branches of government.[xxvii] The National Assessment of Educational Progress has reported that only about one-quarter of high school seniors – many of whom are old enough to vote – have scored at the proficiency level or better on recent national civics tests.[xxviii] The knowledge base seems to improve only modestly after high school. A national survey released in 2018 by Princeton’s Institute for Citizens & Scholars disclosed that only 36% of adult Americans could actually pass a multiple choice test consisting of items taken from the U.S. Citizenship Test that naturalized citizens must pass.[xxix] In a similar study conducted by Xavier University, native-born Americans did especially poorly on questions relating to the Constitution and to legal and political structures of our constitutional republic:
- 85% did not know the meaning of the “rule of law.”
- 82% could not name “two rights stated in the Declaration of Independence.”
- 77% could not identify even one power of the states under the Constitution.
- 75% could not answer correctly the question, “What does the judiciary branch do?”
- 62% could not identify “what happened at the Constitutional Convention?”[xxx]
This, regrettably, is the knowledge base of the “average citizen” in our constitutional republic.
Civic Education about the Judiciary and the Rule of Law
Lawyers and judges have work to do. Our profession has a responsibility to advance public understanding of the rule of law and of the unique role played by the judiciary. As former American Bar Association President Jerome Shestack has written, “The justice system is our trust and our ministry…. [W]e bear the brunt of public dissatisfaction with the justice system’s flaws and deficiencies….” To make that limping legal structure stride upright is the obligation of every lawyer.”[xxxi]
Lawyers can take the lead by educating their clients − and their communities on Law Day, Constitution Day, and other civic occasions − that judges (even elected state judges) should not be regarded as politicians in black robes, but rather as officers of the least political branch of government, charged with maintaining judicial independence, impartiality, and the rule of law. Judges themselves can contribute by adhering strictly to applicable codes of judicial conduct, by maintaining fairness in judicial proceedings, and especially by articulating clear reasons in plain language for judicial decisions – thereby enabling the public to discern the rule of law in judicial decision-making rather than simply reacting to outcomes. Every judicial decision that explains the linkage between an outcome and the rule of law is a valuable enhancement of the public’s civic education.
The Role of Educators
Teachers have work to do, too. Idaho has already taken some steps in this direction. Our state requires secondary school students to pass a civics test (or an authorized alternative), and to take five credits of civics instruction including government (two credits), U.S. history (two credits), and economics (one credit).[xxxii] School districts have authority to augment these requirements, and some have done so. Such mandated instruction provides a foundation for civic literacy in general; however, it does not address in depth the “average citizen’s” deficit in understanding the unique role of the judiciary and the rule of law.
Civics teachers striving to meet this challenge are currently confronting another difficulty: a push-back in certain quarters against civics education that is perceived to be a form of political indoctrination. The push-back appears to be especially directed at so-called “action civics” – i.e., programs that include experiential learning outside the classroom through service opportunities or community projects.[xxxiii] Whatever may be the merits of this political controversy, it should not distract from teaching law-related civics with emphasis upon the rule of law and upon the role of the courts in maintaining the proper relationships among the three branches of government as well as protecting individual rights guaranteed by the Constitution.[xxxiv]
To advance such law-related civic education, the Idaho federal courts, the Idaho state judiciary, the University of Idaho College of Law, and Attorneys for Civic Education (affiliated with the Idaho State Bar) have collaboratively conducted institutes for Idaho secondary schoolteachers in the summers of 2015 through 2023. The teachers’ institutes have featured presentations by federal and state judges and justices, lawyers, and academics, complemented by workshop-style discussions led by master teachers. The institutes are designed not only to enhance teacher expertise but also to help teachers craft lesson plans for use in their classrooms. The presentations and workshops illuminate the meaning of the rule of law; highlight the distinctive features of the United States Constitution, including the independent and impartial judiciary; illustrate a judge’s role as guardian of the national and state constitutions; address the judge’s dual tasks of interpreting and following the law; describe federal and state trial and appellate court processes; explain key elements in the processes of civil and criminal justice; identify information resources available to teachers; and explore ways to enhance public understanding of the judiciary.
The Role of the Media
As vitally important as formal education is, the most powerful “teacher” of lessons in civics is the mass media. News stories — whether in print or electronic form – profoundly shape public perceptions of the justice system. Journalists have long shared in spirit the judiciary’s goals of independence and impartiality. Indeed, the vocabulary used to express these goals is remarkably similar. In 1896, Adolph S. Ochs, founder of the modern New York Times, publisheda declaration of principles including a commitment “to give the news impartially, without fear or favor, regardless of party, sect, or interests involved.”[xxxv] Today, it is widely accepted that “[t]he basic responsibility of reporters covering governmental institutions is to inform the public of what officials are doing and about official policies and goals.”[xxxvi] In reporting the work of the judicial branch, however, the media generally provide selective coverage of what “officials (i.e., the judges) are doing” and sparse coverage about “official policies and goals (i.e., the rule-of-law reasons for judicial decisions, rather than the bare outcomes). This problem manifests itself in numerous ways, a few of which will be briefly mentioned here.
First, news stories typically focus on high-profile or unusual cases, leaving the ordinary administration of justice largely unreported. This may be unavoidable. Journalism is a fast-paced business, focusing on the attention-grabbing events of each day. (Presumably, that is why the French term “jour” is rooted in “journalism.”) Accordingly, to take a simplistic example, the media do not report the safe landings of airplanes, but they do report air crashes. Consumers of such news reports are well aware that nearly all planes land safely, and that crashes are uncommon. But consumers of news about the courts in selected “newsworthy cases” are usually not so familiar with the routine workings of justice. What they learn from the media about the justice system, in selected story after story, might be characterized as crash … crash … crash.
Second, public perception of the judiciary can be distorted if a high-profile case acquires a theme or “story line” that persists even in the face of nonconforming facts. An enduring, classic example is the trial in the infamous McDonald’s “hot coffee” case, Liebeck v. McDonald’s.[xxxvii] Although the local (Albuquerque, New Mexico) newspaper provided generally factual coverage, the national media – especially the authors of running commentaries — tended to characterize the case as the alchemy of a frivolous claim and a runaway jury. The evidentiary facts (third-degree burns, pelvic scarring, substantial hospital and medical costs, hundreds of prior complaints about the scalding temperature at which coffee was handed to drive-in window customers, and the judge’s reduction of the jury verdict) were under-reported in many national media accounts. To be sure, the case was not without genuine controversy. It could have provided a civics “teaching moment” about the distinction between compensatory and punitive damages; the legal standards for making each type of award, as set forth in the court’s instructions to the jury; and the scope of a judge’s authority in modifying a jury verdict. Each of these teaching points would have illustrated the operation of a system grounded in the rule of law. Instead, the impression conveyed to large segments of the public at the time of the trial was that the civil justice system resembles a lottery.
Third, the focus of media reporting can be misplaced when, as often occurs in constitutional litigation, the court’s task is not to determine who should prevail in a controversy, but rather to determine who should decide. This task illustrates the judiciary’s role in maintaining the horizontal and vertical separation of powers as set forth in the Constitution. In the well-known “medical marijuana” case, Gonzales v. Maich,[xxxviii] the United States Supreme Court held, pursuant to the Commerce Clause and the Supremacy Clause of the Constitution, that federal laws governing marijuana as a controlled substance displaced a conflicting state statute (the California “Compassionate Use” Act). The Court was not tasked with deciding whether “medical marijuana” ought to be compassionately allowed. That was an issue for Congress to decide — or would have been an issue for California, and any other state, to decide if Congress had not acted. Congress, however, had chosen to act. The case thus presented a “teaching moment” in federalism and the operation of the rule of law; instead, the Supreme Court was characterized in some media reports as simply being unsympathetic to the idea of compassionate use.[xxxix]
Another example is the United States Supreme Court’s decision in the abortion case, Dobbs v. Jackson Women’s Health Organization, mentioned and cited above.[xl] There the Court held that the national Constitution does not expressly or impliedly preclude a state from restricting terminations of pregnancies. The Court was not called upon to say whether there should be any such restrictions or, if so, what form they should take. In the Court’s view, those were policy questions left to the states in our federal system. Media coverage and commentary on the decision, however, appeared to focus heavily on the Justices’ supposed individual views on the “right to choose” versus the “right to life.”
Nevertheless, the Dobbs court was required to explain why it departed from the doctrine of stare decisis (adherence to precedent)in overruling two prior decisions – Roe v. Wade, and Planned Parenthood v. Casey[xli] – in which the Court had articulated a constitutional limitation on the power of states to regulate abortions. Readers of the Dobbs majority, concurring, and dissenting opinions might disagree on whether the Court’s explanation was persuasive, but at least such an analysis would illuminate an important issue in the rule of law.)
Fourth, when a court is confronted with a case involving a sensitive public issue, some constituency or advocacy group may decry the decision as the work of an “activist” judge. This assertion ignores the fact that the judiciary is the one branch of government that usually cannot “decide not to decide.” In contrast to the legislative branch which has vast leeway to decide whether and when to address a public issue, and in contrast to the executive branch which possesses considerable discretion in promulgating and enforcing administrative regulations, the judiciary must take cases as they come and usually must render a public, written decision.[xlii] A judge may wish he or she had not been handed this task, and at least one of the litigants might wish he or she had not been forced to appear and argue in court; but the case will be decided.
Although activism may lurk in some judicial minds, the courts’ inability to “decide not to decide” provides a more cogent reason than activism as to why courts are occasionally thrust into sensitive public issues. In such cases, it is especially important that media reports mention legal principle(s) identified in a judge’s decision. It is equally important that the judge carefully express those principle(s) in concise, clear language that journalists can use in news stories for lay audiences. Otherwise, the public may be forgiven for assuming that the judge reached out and took a case in order to achieve a personally favored outcome.
This problem is exacerbated by “result and reaction” reporting, a phenomenon mentioned previously in this essay. Such reporting describes the outcome of a case and — rather than referring to the legal foundation of the court’s decision – presents a narrative of conflicting reactions by the parties or other persons interested in the case. This type of reporting is consistent with a “story model” of journalism. Unfortunately, the narrative makes it appear that the court “favored” or “sided with” one litigant over another – indeed, those terms are often used in news stories− and the rule of law is further obscured.
These issues in media coverage of the judiciary highlight the importance of law-related civic education focusing on the judiciary and the rule of law. The issues usually are not products of ill will by the media against the courts, or vice-versa; as noted, the media and the courts share a common heritage of devotion to independence and impartiality. Rather, the issues reflect structural and mission differences between these two venerable institutions, as well as time and resource constraints that not only hinder journalists from taking time to identify and note the operation of the rule of law, but also hinder judges, lawyers, and court staff from assisting reporters in this constitutionally vital task.
One promising response to these issues has been the emergence in Idaho of journalists’ institutes on covering the work of the courts with an emphasis upon the rule of law and the importance of an independent, impartial judiciary. The first such institutes, held in 2018 and 2019 at the Idaho Law & Justice Learning Center in Boise, were cosponsored by the Idaho Press Club, the Idaho state and federal courts, and the University of Idaho College of Law. The same cosponsors, joined by the Attorneys for Civic Education (affiliated with the Idaho State Bar), conducted a third institute in 2022, and recently collaborated on the fourth (2023) institute held at the Boise branch location of the College of Law.
A Shared Commitment
Judges, lawyers, teachers, and journalists should continue to meld their talents and perspectives on law-related civic education. The great American innovation – an independent and impartial judiciary — is being tested in the gathering storm of hyper-partisan assaults upon judicial impartiality and independence in Idaho and elsewhere. The “average citizen’s” understanding of the rule of law, and of the judiciary’s distinctive constitutional role, ultimately will determine whether our courts remain standing “against any winds that blow.”
This is our calling. This is how we keep our republic.
Donald L. Burnett, Jr. is Professor Emeritus and past Dean of the University of Idaho College of Law, as well as a past Judge of the Idaho Court of Appeals and Commissioner of the Idaho State Bar. The views expressed are his own.
[i] 11 AM. HIST. REV. 618 (1906); 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, App. A, at 85 (Max Farrand ed. 1937).
[ii] Native American tribes were cursorily recognized and addressed in the Commerce Clause, Article 1, Section 8.
[iii] The Federalist No. 78, compiled in THE FEDERALIST PAPERS (Clinton Rossiter, ed., 1961).
[iv] Id. at 469.
[v] Id. at 465-466.
[vi] Id. at 470.
[vii] Commentary to Canon 1, Code of Conduct for United States Judges, and the Idaho Code of Judicial Conduct.
[viii] Chambers v. Florida, 309 U.S. 227, 241 (1940) (unanimous opinion authored by Justice Black).
[ix] Hon. Sandra Day O’Connor, Forward to Report, “The New Politics of Judicial Elections, 2000-2009: Decade of Change,” Brennan Center for Justice (2010).
[x] See generally, e.g., “Montana Court Upholds Bill Eliminating Judicial Nominating Commission,” http://www,greatfallstribune.com/story/news/2021/06/10/montana-court-court-upholds-bill-eliminating-judicial-nominating-commission/7647749022/.
[xi] Keith J. Bybee, U.S. Public Perception of the Judiciary: Mixed Law and Politics, JURIST ACADEMIC COMMENTARY (April 10, 2011), available online at http://jurist.org/forum/2011/04/us-public-perception-of-the-judiciary-mixed-law-and-politics.
[xiii] Bybee, see n.11 above.
[xv] Heather McCabe & Sheila Kennedy, Civic Identity, Civic Deficit: The Unanswered Questions, JOURNAL OF CIVIC LITERACY, vol. 1, issue 1 (July, 2014), at 4.
[xvi] Aidan Calvetti, The “Supreme Congress”? Public Misunderstanding of the Judiciary, BROWN POLITICAL REVIEW, https://brownpoliticalreview.org/2016/05/supreme-congress-judiciary (5/7/2016), at 2-3.
[xviii] “New Marquette Law School Poll National Survey Finds Continuing Decline in Approval of the Way the U.S. Supreme Court Is Doing Its Job, with Amount Varying According to Respondents’ Partisanship,” Marquette.edu News Center (May 24, 2023).
[xix] 597 U.S. ___ (June 24, 2022).
[xx] Pew Research Center, Report, “Positive Views of Supreme Court Decline Sharply Following Abortion Ruling” (Sept. 1, 2022).
[xxi] See comments of Senator Ben Sasse at User Clip: Sen. Sasse on the Misunderstanding of the Judiciary C-SPAN.org.
[xxii] https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges (effective, March, 2019).
[xxiii] See, e.g., Scott Bomboy, “Why the Supreme Court Isn’t Compelled to Follow a Conduct Code,” Constitution Daily (National Constitution Center, July 15, 2016). Proposals are being made in Congress, however, to adopt a form of ethics code applicable to the Supreme Court. See, e.g., RollCall.com, “Senate Panel to Vote on Supreme Court Code of Ethics Mandate” (July 19, 2023).
[xxvi] James Gibson & Gregory Caldeira, Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court, THE JOURNAL OF POLITICS, vol. 71, no. 2 (April, 2009), at 429-441. See also, e.g., Gregory Caldeira and Kevin McGuire, What Americans Know about the Courts and Why It Matters, INSTITUTIONS OF AMERICAN DEMOCRACY: THE JUDICIAL BRANCH 262 (Oxford University Press, 2005).
[xxvii] H. Res. 686, September 14, 2009 (calling for increased civic education in high schools). The resolution was adopted unanimously. The same resolution recited that only 46% of young adults passed a test of civic literacy and that persons over age 65 passed by the same percentage.
[xxviii] “Most Students Lack Civics Proficiency on NAEP,” Education Week, May 4, 2011 (updated March 24, 2012), available online at http://www.edweek.org/ew/articles/2011/05/04/30naep.h30.html.
[xxix] CitizensandScholars.Org., Report, “National Survey Finds Just 1 in 3 Americans Would Pass Citizenship Test” (Oct. 3, 2018).
[xxx] News release, “Civic Illiteracy: A Threat to the American Dream,” Xavier University Center for the Study of the American Dream, April 26, 2012, available online at http://xuamericandream.blogspot.com/2012/04/civic-illiteracy-threat-to-American.html.
[xxxi] Jerome Shestack, “President’s Message: Defining Our Calling,” 83 American Bar Association Journal 8 (September, 1997).
[xxxii] Idaho Code section 33-1602(7); Idaho Administrative Procedure Act (IDAPA) 08.02.03 107.06. See generally, Education Commission of the States, “State Notes: High School Graduation Requirements – Citizenship,” available online at http://mb2.ecs.org/reports/Report.aspx?id=115.
[xxxiii] See, e.g., Stanley Kurtz, “The Greatest Education Battle of Our Lifetimes,” National Review (March 15, 2021), criticizing the “Civics Secures Democracy Act” introduced in Congress.
[xxxiv] To view an illustrative range of court-related civic education opportunities, see “Civics Education Resource Guide,” National Center for State Courts, available online at http://ncsc.org/Education-and-Careers;civics-education/Resource-Guide.aspx.
[xxxv] New York Times Archives, “Without Fear or Favor,” published August 19, 1996 (the 100th anniversary of Ochs’ declaration of principles), available online at http://www.nytimes.com/1996/08/19/opinion/without-fear-or-favor.html.
[xxxvi] Martha Kumar and Alex Jones, Government and the Press: Issues and Trends, AMERICAN INSTITUTIONS OF DEMOCRACY: THE PRESS 226, 231(Oxford University Press, 2005). See also Gerald N. Rosenberg, The Impact of Courts on American Life, INSTITUTIONS OF DEMOCRACY: THE JUDICIAL BRANCH 280, 295-296 (Oxford University Press, 2005).
[xxxvii] There is no reported appellate decision because the case was settled after a jury trial. A general description of the litigation and media coverage can be found at https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants.
[xxxviii] 545 U.S. 1 (2005).
[xxxix] E.g., “Court Snuffs Medicinal Pot,” headline story on Page 1 of the Arizona Republic, June 7, 2005.
[xl] Supra n. 18.
[xli] Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[xlii] There are exceptions to the duty of a court to decide every case presented. Some cases involve issues that are neither ripe nor justiciable, or that involve parties who lack standing. These exceptions are narrow, however, and they provide the judiciary nothing resembling the wide exit ramps available to the other branches of government.
By Tenielle Fordyce-Ruff
Every semester I cover a very basic concept with my students when we turn to writing statements of facts: readers tend to prefer reading about facts in chronological order. I also cover another very basic concept: legal writing shifts tenses to compare facts from past cases to the facts from your client.
Of course, this always leads to a discussion about verbs and their tenses and aspects. We all tend to get the very basics, but things can get a little muddled when we move beyond simple tenses. Yet understanding how to express both when an action takes place and extra details, such as the length of time the action occurred, which actions happened first, or whether a past action has an impact on the present is vitally important to help the reader correctly understand what happened when.
This month, we will revisit verb tense and aspect.[i] Then, we will discuss conditional sentences to move beyond the basics.
The Basics: Tense
In English, there are three divisions in time: present, past, and future. When we need to orient readers as to when action took place, we use verb tense: present, past, and future.
Compare these simple sentences:
I write about verbs.
I wrote about verbs.
I will write about verbs.
In each sentence, I am doing the same action, but you know from the shift in tense when the action happens. But, in addition to tense, each verb has an aspect.
The Basics: Aspect
Each verb also has an aspect: simple, continuous, perfect, and perfect continuous. The aspect of a verb is what adds details about the action beyond time. There are four aspects: simple, continuous, perfect, and perfect continuous.
A verb with a simple aspect indicates actions that occur at a point in time or on a repeated or habitual basis. A verb with a continuous aspect indicates that the action takes place over time; the action is either ongoing or will take a while for completion. A verb with a perfect aspect indicates actions, either completed or ongoing related to other points in time. Finally, the perfect continuous aspect is a combination of the perfect and continuous aspects. It indicates an action that happens over time and continues into the present or happened over time before another action.
Putting Tense & Aspect Together
To ensure the reader understands the details about action, we need to put both tense and aspect together. This leads to 12 different verb forms. I’ve put them together in this handy chart. And, as I am determined to meet my step goals everyday this autumn, I’ve using my activity in the example.
|Simple||I walked yesterday.||I walk every day.||I will walk tomorrow.|
|Perfect||I had walked before.||I have walked too much today.||I will have walked over 50 miles by the end of the week.|
|Continuous||I was walking when my shoelace broke.||I am (not) walking right now.||I will be walking every morning this week.|
|Perfect Continuous||I had been walking only a short time when my shoelace broke.||I have now been walking for over three weeks.||I will have been walking for over three months to meet my goal.|
Beyond the Basics: Conditionals
Of course, we sometimes also need to discuss actions that are only possibilities or imaginary. That’s where conditionals come in. We use conditionals to express that something is true or will happen only if something else happens. In other words, we use conditionals to express that certain conditions must be present for something else to be true or to happen.
Complete conditional sentences contain an “if” clause and a consequence. For example, I would stop working if I won the lottery. There are four types of conditional sentences in English: Zero, First, Second, and Third.
Zero conditional sentences express general truths rather than specific instances. They are formed with the if-clause with a present simple verb, and a main clause with a present simple verb.
If you don’t brush your teeth, you get cavities.
It’s important to remember in zero conditional sentences to use the present simple for both verbs. A common mistake is to use a simple future tense for the second: When people don’t brush their teeth, their health will suffer. Note, too, that you can use either if or when in zero conditional sentences.
First conditional sentences talk about the future. We use these sentences when something is likely, although not guaranteed to happen in the future. These are formed with the if-clause with a simple present verb, and a main clause with a simple future verb.
If you sleep, you will perform better.
Two common errors in first conditional sentences: 1.) using a simple future verb in both clauses (If you will sleep, you will perform better.) and 2.) using the simple present in the main clause (If you sleep, you perform better.)
Second conditional sentences are used for imaginary or completely unrealistic situations. Those that likely will not happen in the future. These are formed with the if-clause with a simple past verb, and main clause with a modal present verb, like would, could, should, or might.[ii]
If I won the lottery, I might move to Europe.
The most common mistakes here are using the present simple in the if-clause or using a modal in the main clause that expresses the result is likely to happen. If I win the lottery, I might move to Europe. If I won the lottery, I will move to Europe.
Finally, third conditional sentences express that the present would be different if the past had been different. These are formed with the if-clause with a past perfect verb, and main clause with modal simple past.
If you had told me you wanted to learn about conditions, I would have written about them earlier.
Make sure you don’t put the modal in the if-clause; that’s incorrect. If you would have told me you wanted to learn about conditions, I would have written about them earlier. Likewise, make sure the verb in the main clause isn’t present: If you had told me you wanted to learn about conditions, I could write about them.
And, to help make all this easier to digest, here is another handy chart:
|Zero||If-clause + simple present + simple present||a certain result is guaranteed or for general truths|
|First||If-clause + simple present + simple future||the result of the if-clause is likely to happen in the future|
|Second||If-clause + simple past + modal present verb||the result is imaginary or completely unrealistic|
|Third||If-clause + past perfect + modal simple past||the present would be different if the past had been different|
Tenielle Fordyce-Ruff is a member of the Idaho State Bar and an Associate Clinical Professor of Law at Sandra Day O’Connor College of Law Arizona State University.
[i] I first covered verb tense and aspect in 2012. Tenielle Fordyce-Ruff, Verbs: The Basics on Tense & Voice, 55-Aug Advocate (Idaho) 48.
[ii] You can learn more about modals in my August 2013 column: Tenielle Fordyce-Ruff, Back to Basics II: Parts of Speech, 56- Aug Advocate (Idaho) 68.
By Texie C. Montoya
The history of American Bar Association (“ABA”) Model Rule 8.4(g) is a story of controversy, acceptance, and rejection. Currently, Idaho remains one of only a handful of states that have expressly declined to adopt some version of Model Rule 8.4(g).
The model rule states:
“It is professional misconduct for a lawyer to: […] (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”[i]
This article will trace the history of ABA Model Rule 8.4, the addition of 8.4(g), the rejection and acceptance of the Model Rule by other states, and the history and current status of the proposed rule in Idaho.
A brief overview of the ABA Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct were adopted by the American Bar Association (“ABA”) in 1983 and have been amended several times since then.[ii] They replaced the ABA’s previous rules, the 1969 Model Code of Professional Responsibility which were preceded by the 1908 Canons of Professional Conduct.[iii] As we all learned in law school, the ABA Model Rules are a set of guidelines for lawyers’ ethical behavior which cover various aspects of lawyers’ relationships with their clients, the courts, other lawyers, and the public. They also address issues such as advertising, confidentiality, conflicts of interest, competence, fees, and pro bono service. The comments to each rule explain and illustrate the meaning and purpose of the rules and are intended as guides to interpretation of the rules.[iv]
The Model Rules serve, as the name implies, as a model for the ethics rules of most jurisdictions in the United States, although each state can adopt modified or different rules.
The Rules of Professional Conduct in Idaho
Idaho adopted the ABA Model Rules of Professional Conduct in 1986,[v] becoming the 16th state to do so.[vi] The Idaho Rules of Professional Conduct (“IRPC”) are largely based on the ABA Model Rules, with some “Idaho variations.”[vii] The IRPC are enforced by the Idaho State Bar and the Idaho Supreme Court,[viii] which also adopted the comments to the IRPC.[ix] The rules serve in part as the authority for disciplinary action for lawyers.[x] The IRPC have been revised several times since their initial adoption, most notably in 2004, following the ABA’s revision of the Model Rules based on the recommendations of the ABA Ethics 2000 Commission.[xi]
History of Model Rule 8.4(g)
From its inception, Model Rule 8.4 has provided:
“It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.[xii]
Beginning in the early 1990s, several ABA groups worked to revise the Model Rule to address bias, harassment, and discrimination.[xiii] In 1998, anti-harassment language was ultimately adopted as a comment.[xiv]
In 2008, the ABA adopted a series of goals as an organization.[xv] Goal III is “Eliminate Bias and Enhance Diversity.”[xvi] The ABA also identified four of its entities as “Goal III Commissions” – the Commission on Women in the Profession, the Commission on Sexual Orientation and Gender Identity, the Commission on Disability Rights, and the Center for Racial and Ethnic Diversity.[xvii]
In October 2014, the ABA Standing Committee on Ethics and Professional Responsibility (“SCEPR”) established an informal Working Group on Rule 8.4 following discussion with the four Goal III Commissions.[xviii]
In July 2015, the SCEPR distributed a preliminary draft of Model Rule 8.4(g) during the 2015 ABA Annual Meeting to solicit feedback.[xix] In December 2015, an updated version of Model Rule 8.4(g), along with proposed comments, was distributed along with an invitation to a public hearing at the 2016 ABA Midyear Meeting in February.[xx]
In August 2016, Resolution 109 was presented to the ABA House of Delegates to amend Model Rule 8.4(g) at their 2016 Annual Meeting and it passed.[xxi] Several states, such as Idaho neighbors Nevada and Utah, solicited comments on the Model Rule soon after its passage by the ABA.[xxii] Many states proposed revised versions of the Model Rule, including Idaho.[xxiii] As detailed in the following, some jurisdictions adopted the rule between 2016 and 2019, several other states rejected the rule.
Thus, to address some of the common questions and concerns raised by lawyers and regulators, in July 2020, the ABA’s SCEPR issued a formal opinion to provide guidance on the interpretation and implementation of the rule.[xxiv] The 14-page formal opinion explains the scope and application of the rule, as well as its relationship to the First Amendment and other ethical rules.[xxv] It clarifies that the rule does not prohibit legitimate advocacy or advice consistent with the Rules of Professional Conduct, nor does it apply to conduct that is not related to the practice of law.[xxvi] The formal opinion also explains how the rule should be enforced and what factors should be considered in determining whether a lawyer’s conduct violates the rule.[xxvii] It provides examples of scenarios that would or would not violate the rule, as well as best practices for lawyers and law firms to comply with the rule and promote diversity and inclusion in the legal profession.[xxviii]
Acceptance and Rejection in Other States
Prior to the ABA’s adoption of Model Rule 8.4(g), 20 states already had an analogous rule in place, including Idaho’s neighbors Oregon and Washington.[xxix]
In December 2016, the Texas Attorney General issued an advisory opinion that the rule would violate the First Amendment rights of free speech, free exercise of religion, and freedom of association of Texas lawyers, and that it would be vague and overbroad in its scope and application.[xxx] The Attorney General also noted that the Texas Disciplinary Rules of Professional Conduct already address issues of attorney discrimination through narrower and clearer language.[xxxi]
South Carolina, on the other hand, explicitly rejected the rule. In June 2017, the South Carolina Supreme Court declined to adopt ABA Model Rule 8.4(g) into its Rules of Professional Conduct.[xxxii] The court did not provide any explanation for its decision, but the House of Delegates of the South Carolina Bar and the state attorney general had previously criticized the rule as being vague, overbroad, and unconstitutional.[xxxiii] They argued that the rule would infringe on lawyers’ First Amendment rights to free speech and free exercise of religion, and would create a chilling effect on lawyers’ ability to zealously represent their clients.[xxxiv]
Vermont was the first state to adopt Model Rule 8.4(g), in 2017, replacing its former rule that had a similar anti-discrimination provision but with a narrower scope and application.[xxxv] Vermont Rule 8.4(g) follows the language of the ABA model rule, and adds “color[…] ancestry, [and] place of birth” as additional protected characteristics.[xxxvi] The rule also provides guidance on how to determine whether conduct is discriminatory or harassing, and what factors may be considered as mitigating or aggravating circumstances.[xxxvii]
By 2019, five states in addition to Idaho, as discussed in the following, had rejected the new rule, including our neighbor Montana.[xxxviii] On the other hand, New Mexico, American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands had all joined Vermont in adopting the Model Rule.[xxxix]
Idaho’s Attempts to Adopt 8.4(g)
In 2017, the Idaho State Bar Board of Commissioners submitted a resolution to amend IRPC Rule 8.4 to include anti-discrimination and anti-harassment provisions based on the ABA Model Rule, but with some modifications.[xl] The resolution was supported by the Professionalism & Ethics Section of the Idaho State Bar, which had formed a committee (the Anti-Discrimination and Anti-Harassment Committee, which still exists today) to review the ABA Model Rule – the Committee studied the storied development of the rule, as briefly explained previously, and made substantial revisions to narrow its scope and address constitutional concerns.[xli]
However, the resolution faced opposition from some lawyers and groups who argued that it would infringe on free speech, religious liberty, and client choice. Even so, when the members of the Idaho State Bar voted, the resolution passed with 62% of the vote and was then sent to the Idaho Supreme Court.[xlii] On September 6, 2018, the Idaho Supreme Court rejected the resolution but “encouraged the Idaho State Bar to revisit this matter in hopes of narrowing the rule to comport with new United States Supreme Court Cases.”[xliii]
In 2020, the Anti-Discrimination and Anti-Harassment Committee of the Professionalism and Ethics Section of the Idaho State Bar conducted a climate survey – the Climate of the Legal Profession in Idaho 2020 Survey.[xliv] Based on the survey results, the Committee was determined to continue advocating for Idaho’s adoption of a subsection (g) to IRPC 8.4.[xlv]
In November 2021, the Idaho State Bar Board of Commissioners submitted a new resolution to the members of the bar, proposing a revised version of the rule, which attempted to address some of the criticisms and concerns raised by the opponents of the original rule as well as the Idaho Supreme Court.[xlvi] The revised rule narrowed the definition of harassment and discrimination, limited the rule’s application to conduct that is unlawful or severe or pervasive, and clarified that the rule does not limit legitimate advocacy or representation.[xlvii] The revised rule, however, still faced opposition from many lawyers and groups who maintained that the rule was unnecessary, unconstitutional, and inconsistent with Idaho’s values. And yet, when the members of the Idaho State Bar voted on the new resolution, it too passed (with 67% of the vote) and was then sent to the Idaho Supreme Court.
In January 2023, the Idaho Supreme Court rejected the 2021 version of the proposed addition as well, writing per curiam in a 15-page decision that it “does not pass constitutional muster” citing concerns about its impact on lawyers’ protected speech and calling the proposed rule overbroad and vague.[xlviii] In the decision, the Court compared cases from Pennsylvania and Colorado whose versions of 8.4(g) were challenged – Pennsylvania’s was found to be unconstitutional but Colorado’s was upheld as not violating the constitution.[xlix] The Idaho Supreme Court wrote that Idaho’s proposed rule was closer to Pennsylvania’s than Colorado’s and concluded that while they were “reluctant to reject the Bar’s efforts to rein in unlawful harassment or discrimination,” they declined to adopt it “as it is currently written.”[l]
Pros and Cons of ABA Model Rule 8.4(g)
Before and since its adoption by the ABA, Rule 8.4(g) has faced controversy.
The stated purpose of Rule 8.4(g) is to explicitly address discrimination and harassment in the practice of law. Arguments for adoption of the rule are that it promotes professionalism, inclusivity, and ethical responsibility by prohibiting discrimination and harassment, fostering an environment of respect, reflecting changing societal norms, and enhancing public confidence in the legal profession.
On the other hand, criticism is that it may violate lawyers’ First Amendment free speech rights, especially in relation to their religious beliefs or political views and have a chilling effect on expression. It has also been criticized as being unnecessary, having unintended consequences, being in conflict with advocacy roles, its potential for misuse, and being difficult to enforce. The rule has also been challenged in court as being unconstitutionally vague and overbroad, and unconstitutional.
The Future of ABA Model Rule 8.4(g)
In recent years, a handful of additional states have adopted a version of Model Rule 8.4(g) including Alaska, Connecticut, and Colorado.[li] More than a dozen states have now adopted a version of 8.4(g) and several more states address discrimination and/or harassment on protected classes elsewhere in their rules; another handful, like Idaho, address bias, and/or prejudice based on protected classes in their rules.[lii] Other states are still considering adding the Model Rule 8.4(g) prohibitions to their rules.[liii]
As of now, Idaho remains one of still only a handful of states that have expressly declined to adopt some version of Model Rule 8.4(g), along with Arizona, Pennsylvania, and Tennessee. Those states, like Idaho, may still consider some version of the rule yet.
While Idaho has yet to adopt some version of the rule, the Idaho Supreme Court’s encouragement to continue to narrow and refine the rule means that the IRPC may yet include anti-discrimination and anti-harassment provisions.
Texie C. Montoya is an associate general counsel at Boise State University where she has worked for 11 years. She is an executive committee member of the Professionalism & Ethics Section and also of the Government & Public Sector Lawyers Section, the treasurer for Attorneys for Civic Education, and a member of Idaho Women Lawyers.
[i] MPRC. Like all model rules, Rule 8.4(g) is not binding on lawyers unless or until it is adopted by their jurisdiction’s state bar or supreme court or in some cases their legislature (where that body regulates the legal profession).
[iv] Model Rules of Prof’l Conduct (hereafter “MRPC”) Preamble & Scope, §21 (2023).
[v] Idaho Rules of Prof’l Conduct (hereafter “IRPC”) intro paragraph.
[vii] IRPC intro paragraph.
[viii] IRPC Preamble and Scope.
[ix] IRPC intro paragraph.
[x] IRPC Scope §14.
[xi] IRPC intro paragraph.
[xii] Kristine A. Kubes, Cara D. Davis, and Mary E. Schwind, The Evolution of Model Rule 8.4 (g): Working to Eliminate Bias, Discrimination, and Harassment in the Practice of Law, Under Construction. (Spring 2019).
[xvii] Cynthia Thomas, ABA Goal III Entities, Law Practice Today. (2015).
[xviii] Dennis A. Rendleman, ABA Model Rule 8.4(g): Then and Now, The Public Lawyer. (Winter 2023).
[xxii] ABA Journal October 1 2017.
[xxx] Tex. Att’y Gen. KP-0123, 2016 WL7433186 (Dec. 20, 2016).
[xxxii] Order, In re Proposed Amendments to Rule 8.4 of the Rules of Professional Conduct (S.C. June 20, 2017) (No. 2017-000498), https://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2017-06-20-01.
[xxxiii] Josh Blackman, ABA Model Rule 8.4(g) in the States, 68 Cath. U. L. Rev. 629 (Fall 2019).
[xxxv] Vt. R. Prof. Cond. 8.4 (2023). Reporter’s Notes-2017 Amendment.
[xxxviii] Kubes et al., The Evolution of Model Rule 8.4 (g).
[xl] Yvonne Dunbar, Proposed Rule 8.4(g): Consideration, Drafting, and Commitment, 60
ADVOCATE 27 (2017); See Resolution-re-Proposed-Rule-8.4-Amendment.pdf (idaho.gov).
[xlii] Diane K. Minnich, Executive Director’s Report, 61 ADVOCATE 17 (2018).
[xliv] Catherine A. Freeman , Gregory B. LeDonne, Jodi A. Nafzger & Cathy R. Silak, The Impact of Discrimination, Harassment, and Bullying on Lawyers in Idaho, 64 ADVOCATE 30 (2021).
[xlvi] Resolution 21-01 – Amendment to Idaho Rule of Professional Conduct (I.R.C.P.) 8.4 at 1, available at https://isb.idaho.gov/wp-content/uploads/Resolution-re-Proposed-Rule-8.4-Amendment.pdf.
[xlviii] In Re Idaho State Bar Resolution 21-01 (Jan. 20, 2023).
[li] https://courts.alaska.gov/rules/docs/prof.pdf, https://www.jud.ct.gov/Publications/PracticeBook/PB.pdf, In re Abrams, 488 P.3d 1043, 1050 (Colo. 2021).
[liii] Rendleman, see fn X.
[LE1]Place in breakout box
By Danelle C. Forseth & Melissa Luna
In 2019, the American Bar Association (“ABA”) published the report Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice by Roberta D. Liebenberg and Stephanie A. Scharf.[i] The report was undertaken as part of the ABA’s Presidential Initiative on Achieving Long-Term Careers for Women in Law which explored why big firm women lawyers “are leaving the legal profession when they are in the prime of their careers and should be enjoying the most success.”[ii] The researchers surveyed managing partners and female and male attorneys who were in private practice at National Law Journal 500 law firms for at least 15 years. Seventy percent of respondents were women and 30% of respondents were men.[iii]
Among the survey’s many results were that women report being four to eight times more likely than men to be overlooked for advancement, be denied a salary increase or bonus, be treated as a token representative for diversity, lack access to business development opportunities, be perceived as less committed to her career, and lack access to sponsors.[iv] Additional findings indicate that 21% of women are somewhat or extremely dissatisfied with their job and only 53% of women were satisfied with the leadership of their firm. Among the top reasons women leave the legal profession were caretaking commitments, level of stress at work, and work/life balance.[v]
Melissa Luna and Danelle Forseth proposed writing this article because their experience of practicing law in a rural community has been opposite of the findings of the women attorneys surveyed in the Walking Out the Door report. Not only is there challenging legal work to be performed but they have found building a practice in Idaho’s rural counties is satisfying and permits them to balance their personal responsibilities with their work.
Shortage of Rural Idaho Attorneys
The Professionalism & Ethics Section of the Idaho State Bar (“ISB”) partnered with the Idaho Policy Institute and Master of Public Administration Capstone Class at Boise State University to conduct research about the Idaho State Bar. This research culminated in the publication of Climate of the Legal Profession in Idaho 2020.[vi] It was reported that 38% of ISB members are female and 62% are male. The authors of that publication reported women experience discrimination, harassment, and bullying in the legal profession at significantly higher rates than men.[vii]
Idaho has a total of 5,474 active attorneys of which 4,005 reside or have an office in-state.[viii] Idaho’s Fourth Judicial District represents 2,226 of these active and in-state attorneys, leaving 1,779 attorneys to serve the remainder of Idaho. In comparison, Idaho’s Sixth Judicial District claims 189 active, in-state attorneys. In 2020, the ABA reported “two-thirds of [Idaho] counties (29 of 44) have less than one lawyer per 1,000 residents, including three counties with no lawyers at all and two counties with only one lawyer.”[ix] For every 1,000 residents, Idaho has 2.2 attorneys.[x] The number of attorneys available to enter into attorney-client relationships with local residents shrinks once prosecutors, city attorneys, and county attorneys are subtracted from available attorneys. Further, the “graying of the bar,” or many attorneys who are older and nearing retirement or retiring within the ISB, adds to the scarcity of rural attorneys.[xi]
Opportunity in Idaho’s Rural Counties
Danelle Forseth joined long-time Moscow attorney Ronald Landeck in 2011 full-time after having worked part-time for several years to care for two children until they reached school-age. Melissa Luna joined the law firm in 2015 after working as an in-house civil rights investigator for colleges and universities. She landed in Moscow when her spouse took a position in the region. Danelle recalls:
“Melissa and I graduated from law school together. We had been chatting about job opportunities in Idaho when she said she would be moving to Moscow. I urged her to meet with Ron and me and consider coming to work with us as we had a tremendous need for another attorney to serve our clients. In my experience, there is never a shortage of people or businesses in need of legal assistance in our community.”
Another rural attorney, Susan Wilson, who has mostly practiced as a solo practitioner, also enjoys working in small towns in Idaho. She states:
“I have more than enough clients to support my lifestyle. I think attorneys in small towns will always be busy – just the nature of having a general practice and conflicts of interest with other attorneys – the whole supply and demand model is very much applicable to attorneys and just like any other market restriction, we have conflicts of interests that force involving other counsel. I’m not even talking about litigation – even transactional attorneys, estate planning attorneys, probates, etc. Every area of law.”
In the authors’ practices, there are enough billable hours to cover expenses and pay themselves salaries above the annual mean wage earned by all attorneys in Idaho.[xii] In fact, at different times of the year, they must decline cases to keep their caseloads at a manageable level. In addition, author Melissa has also qualified as a Parenting Coordinator under the Family Law Rules of Procedure and works with parents to make decisions after the entry of a custody decree.
Another local attorney, solo practitioner Jennifer Ewers, offers other types of legal services to the community, such as mediation services. She comments, “As a mediator, I hope I am helping the community by providing a service that allows parties to resolve family law and other disputes in a less contentious and costly forum than court, and that leaves the outcome of the process in their hands.”
In Latah County, Danelle and Melissa are aware of at least three long-time attorneys who have retired or transitioned to “of counsel” status in recent years and have handed the reins over to younger attorneys after a period of time practicing together. This includes their own firm. For the younger attorney, the typical gains are mentorship and a book of business. With the number of Baby Boomer attorneys who are, or who will soon reach, retirement age, they foresee many opportunities for such succession arrangements.
Connection with Community
In a rural community, the authors routinely see how service to residents makes a difference. Danelle explains, “We are invested in our clients’ success; we rely upon, frequent, and enjoy supporting our local business clients on a personal level. By purchasing a book or coffee or enjoying a family meal out at one of our many great restaurants we support our local businesses that contribute to our quality of life.” Melissa agrees and states:
“I feel fortunate to encounter former clients by chance at local events, sometimes at their workplace, or even as they stroll by my home as I am gardening. When we can connect after the high stress of litigation, and I see them or their children doing well, I am reminded of the importance of being a lawyer. Our guidance and compassion at the worst of times is part of a longer experience of adjusting to a different version of their life, often one that is more positive.”
Susan Wilson also sees the value in her services to rural clients. She states, “Just being able to provide resources is hugely valuable to those in a small town; so many of my clients come in just not knowing the first thing about what they need to do, and it doesn’t take much to point them in the right direction, give them peace of mind, or put them at ease.”
Practice in a small town allows many attorneys to provide alternative service arrangements to our clients. “My small-town practice helps me be able to make house calls more so than I would ever be able to do in a larger city. Many of my clients aren’t able to come downtown or climb my stairs – so I often go to them,” notes Susan Wilson. Recently, Danelle arranged to have two witnesses accompany her to a client’s residence to execute a will because the client could not leave a home-bound, incapacitated person.
Mentorship and Collegiality
Danelle feels extremely fortunate to have had several mentors after joining the local legal community. She was a staff-attorney for District Judge, now Justice John Stegner, and worked on a contract-attorney basis with attorney John Norton before joining Ronald Landeck in his legal practice. Danelle says that the experience of receiving the guidance and support of these individuals was invaluable as she began a local legal practice.
Attorney Deb McCormick was admitted to the bar in 2005 and is a solo practitioner. She currently has a public defender contract which includes representing individuals in criminal cases, termination of parental rights cases, and guardianship. She observes about the civility in her rural practice:
“Even the attorneys who are regularly your adversaries in the courtroom are your friends outside the courtroom. It is a very supportive environment. But it also keeps you on your toes! If you are a slacker, everyone is going to know, so it keeps you doing your best. Also unique to small towns is that the judges really get to know the defendants that they see often. Most of my clients believe the judges really care about their well-being, which they do!”
Melissa shares her positive experience as a person of color working in a rural legal community. She states:
“As a person of Mexican-mixed race ancestry, I read the research about the experiences of people of color in the legal industry, and it is often disheartening. As a member of a small firm in which we work collaboratively, and know each other well, I feel respected and that opportunities are open to me. The size of our legal community, including members of my own firm, judges, court clerks, and local attorneys, lends itself to developing positive and collegial relationships; we get to know one another’s talents and stories.”
Quality of Life
Prior to moving to Moscow, Danelle practiced law in Portland, Oregon. The daily commute from home to daycare then to the office was 45 minutes one-way. Practicing law in a small town has provided flexibility as well as a better work-life balance for her. She states, “I can walk up the hill to the high school in a few minutes, watch a student presentation, and be back in the office without losing hours to a commute.” Additionally, because they are in control of their own caseload, Danelle can take the time to attend her kids’ soccer games or track meets. Melissa and Danelle both are able to schedule in fitness routines as well because they control their time, and their workout facilities are within a mile of their office; Danelle leaves the office early for weight training and Melissa comes in late after morning pickleball.
Most of their cases are in Latah County, which has 89 active, in-state attorneys, but now that courts are continuing the use of Zoom for pretrial hearings, they can take more cases in Nez Perce, Idaho, and Clearwater counties.
And, unsurprisingly, they are satisfied with the leadership of their firm because they are the leaders. In fact, every woman attorney quoted in this article owns her firm.
There are certainly difficulties with legal practice in rural counties. For a lawyer who does not join a community by working in an established firm, building a business has its challenges. Jennifer Ewers shares her experience:
“Early on in my solo practice, it was difficult to balance work and personal life because my focus had to be on generating clients and income as I built my practice. I think my kids suffered a bit from my unavailability during that practice-building phase. After establishing a consistent client base, my solo practice has very much allowed me to set my own hours, subject to court hearings and other scheduling out of my control.”
And there is no question there are fewer professional services available for clients that may be needed in relation to a case or general welfare, such as counseling or supervised visitation. Attorney Deb McCormick advises, “Small towns have fewer social resources. As a public defender, many of my clients are in need of resources that just don’t exist in Latah County or are in such short supply that the waiting lists are very long.” Local attorneys are not always able to help their clients access these services. Melissa finds that the collegial relationships among local attorneys, because of the frequency of contact, as well as three years of Zoom hearings, has resulted in an openness to alternative arrangements.
For example, if a client can travel for a psychological evaluation, the court and colleagues are open to testimony from a different location as permitted by court rules. Recently, Melissa and another attorney stipulated the testimony of expert and lay witnesses could occur by Zoom. Local attorneys know and appreciate that we all face barriers because of our location so cooperation is our typical starting point.
Lastly, the authors are not suggesting that they have not encountered sexism in their work. In the Walking Out the Door report, 82% of women attorneys reported they have been mistaken for a lower-level employee whereas 0% of men had that experience.[xiii] Danelle was mistaken as an assistant by older male attorneys early on when she accompanied an older male attorney to meetings. Melissa has been mistaken for an assistant by a few walk-in prospective clients.
Practicing law in one of Idaho’s small communities can afford a legal practitioner the opportunity to create a legal practice that more easily permits commitments outside of work, including personal responsibilities to one’s family and one’s self. Building a practice provides the opportunity to control caseload and time spent in the office. More importantly, working in counties with fewer people draws you into the life of the community in many satisfying and unexpected ways. Attorneys at all career phases, whether starting out or an experienced attorney wanting a change, should consider a practice in one of Idaho’s small towns.
Finding new associates is a constant discussion by attorneys in Latah County and, likely, around the state. Anyone wishing to explore life and practice in Idaho’s rural counties should reach out to members of the local bar association for insight into the particular needs of the region, especially older attorneys who may be interested in developing a succession plan. University of Idaho law students can secure scholarship funds to support internship, externship, or pro bono service in rural communities through the Idaho Heritage Project and use that opportunity as a great way to network in a rural community.[xiv]
The authors and their colleagues quoted in this article have found legal practice in rural Idaho to be satisfying, supportive, and favorable to building work lives that make room for their personal responsibilities and well-being. They hope their experiences inspire others to join them in Idaho’s rural communities.
Danelle C. Forseth and Melissa Luna graduated from Lewis and Clark Law School in 2004 after pursuing careers in other fields. Together they own and manage Landeck | Forseth | Luna, Attorneys at Law, a general civil practice firm. Danelle’s practice primarily includes real property, construction, and estate administration disputes. Melissa’s practice primarily includes divorce, custody, guardianship, and serving as an IRFLP 1002 Parenting Coordinator. Their favorite things about small-town life are knowing the people in their community, the short walk to downtown, and a 90-second commute to the office.
[i] Roberta D. Liebenberg and Stephanie A. Scharf, Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice, American Bar Association, available at: https://www.americanbar.org/content/dam/aba/administrative/women/walkoutdoor_online_042320.pdf.
[ii] Walking Out the Door, at i.
[iii] Id. at 3.
[iv] Id. at 3-8.
[v] Id. at 12.
[vi] Climate of the Legal Profession in Idaho 2020, Boise State University School of Public Service, available at: https://isb.idaho.gov/wp-content/uploads/Climate-of-the-Legal-Profession-in-Idaho-2020.pdf.
[vii] Climate of the Legal Profession in Idaho 2020, at 15.
[viii] Membership Count and Statuses, Idaho State Bar, available at: https://isb.idaho.gov/licensing-mcle/membership-count-statuses/ (last accessed 8/29/2023).
[ix] ABA Profile of the Legal Profession 2020, American Bar Association, at 2 and 5, available at: https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020.pdf. The counties with one attorney are Boise, Butte, and Minidoka. The county with zero attorneys is Camas County.
[x] ABA Profile of the Legal Profession 2020 at 3.
[xi] Beskin, K.V. and Pruitt, L. R., A Survey of Policy Responses to the Rural Attorney Shortage in the United States, UC Davis Legal Studies Research Paper Series (May 2021), available at: https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3854187_code366600.pdf.
[xii] May 2022 State Occupational Employment and Wage Estimates – Idaho, U.S. Bureau of Labor Statistics, available at: https://www.bls.gov/oes/current/oes_id.htm#23-0000 (last accessed 8/29/2023). The data reports Idaho lawyers are paid an annual mean wage of $96,810.
[xiii] Walking Out the Door, at 7.
[xiv] Idaho Heritage Project, University of Idaho, available at: https://www.uidaho.edu/law/academics/experiential-learning/idaho-heritage-project.
By Mark J. Fucile
“Once discovery began, several of the parties’ lawyers quickly devolved to the kind of conduct that rightly gives the legal profession a bad name.” – Britton v. Dallas Airmotive, Inc. [i]
Depositions lie at the heart of most civil cases and in rare instances some criminal cases. They can often “make” – or “break” – a case. Even before the rise of “remote” depositions during the COVID-19 pandemic, “speaking” objections and related lawyer misconduct during depositions occasionally crossed the sometimes-indistinct line between legitimate advocacy and improper coaching. A column in these pages by the then-president of the Idaho State Bar in 2015, for example, warned of these tactics.[ii] Anecdotal evidence suggests that the widespread adoption of remote depositions in the wake of the pandemic has not improved this dynamic with well-publicized reports of lawyers being sanctioned for secretly communicating with their clients during depositions.[iii]
In this article, we’ll look at the boundary between legitimate advocacy and improper coaching in three respects. First, we’ll survey the rules involved. Second, we’ll note the principal risks to lawyers who cross that line. Third, we’ll discuss both informal and formal remedies available to address improper deposition coaching.
Before we dive too deeply into this topic, three caveats are in order.
First, we’ll focus on conduct occurring during a deposition. As a general proposition, there is nothing wrong with thoroughly preparing a witness to give truthful testimony before a deposition.[iv]
Second, we’ll focus on deposition objections and related coaching rather than other forms of bad behavior occurring during depositions.[v]
Third, although similar issues can arise at trial, judicial control of the courtroom makes conduct of this kind less frequent at trials than during depositions.[vi] With these boundaries in place around this analysis, let’s look more deeply into the rules.
The rules governing deposition conduct – including improper coaching – are a blend of procedural and professional regulations.
Idaho Rules of Civil Procedure 30(d)(1) and (2) concisely frame the procedural limits:
- An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(4).[vii]
- Counsel or any other person present during the deposition must not impede, delay, or frustrate the fair examination of the deponent.
Idaho’s rules are patterned on a corresponding provision in Federal Rule of Civil Procedure 30(c)(2). Idaho’s rules are also similar to those in neighboring states.[viii]
Idaho Rules of Professional Conduct 3.4(a) and (c), in turn, frame the primary professional rule considerations:
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; […]
(c) knowingly disobey an obligation under the rules of a tribunal[.]
Improper coaching and similar misconduct during a deposition may also trigger RPC 8.4(d), which prohibits “conduct that is prejudicial to the administration of justice[.]” All three Idaho provisions are based on their ABA Model Rule counterparts.[ix]
A deponent who has been coached to offer specific answers designed to shade or hide the truth is likely violating IRPC 3.4(a). Coaching by the attorney also calls into question compliance with Idaho Rule of Civil Procedure 30(d)(2) because it impedes the “fair examination” of the deponent.
Improper coaching can result in both court-imposed sanctions and regulatory discipline. Examples of sanctions as explained in the following could include monetary penalties, removal of pro hac admission, disqualification of the attorney, or even outright dismissal of a claim or complaint. Whatever small advantage may be contemplated by “coaching” is heavily outweighed by the lawyer’s obligation under the rules as well as the risk of costly sanctions.
Idaho Rule of Civil Procedure 30(d)(3) authorizes a trial court to impose an “appropriate sanction” “on a person who impedes, delays, or frustrates the fair examination of the deponent.” The broad spectrum of sanctions available under Idaho Rule of Civil Procedure 37(b) – ranging from monetary penalties to dismissal – is incorporated by reference into Rule 30(d)(3). Sanctions are also available in federal proceedings under Federal Rule of Civil Procedure 30(d)(2). Because a court may consider sanctions against both the offending lawyer and the lawyer’s client, potentially disqualifying conflicts may result as well.[x]
Lawyers have been disciplined for violations of variants of Idaho Rules of Professional Conduct 3.4 and 8.4 for improper deposition coaching.[xi] Revocation of pro hac vice admission by the court concerned is also an available remedy.[xii]
Deposition misconduct that amounts to improper coaching varies
“Speaking” objections – where the defending lawyer expands on objections to impermissibly coach the witness toward a desired answer – have long been a staple of this genre of cases.[xiii] For example: “Objection. Mr. Smith has already testified that he doesn’t know whether the light was green or red and your question asks him to speculate.” Repetitive “form” objections designed to impede the questioner during depositions have also been criticized by courts as a variant of impermissible coaching.[xiv] Repeatedly rephrasing questions to signal the desired answer to the witness has also been held to constitute impermissible coaching.[xv] Repeatedly taking the witness out of the room while a question is pending is a more blatant form of impermissible coaching.[xvi]
These older forms of impermissible coaching are now supplemented by technology-enabled methods. Whispering desired answers off-camera during remote video depositions is no different than more traditional impermissible coaching.[xvii] Texting or “chatting” suggested answers to a witness during a remote deposition is similarly impermissible coaching.[xviii] It is important to note that in a remote deposition, the microphones are often very sensitive to noise, it is easy to see a witness’ attention being redirected, and no one can text surreptitiously. If you need a further word of caution, these efforts are often easily identified, and always recorded.
While “line drawing” in this area is inherently indistinct, the caselaw collectively suggests that lawyers are at risk of sanctions or discipline either when objections or similar conduct are repeated to the point of impeding the opposing party’s right to conduct the deposition or is a single egregious instance such as whispering answers off-camera during a remote deposition.[xix]
Idaho Rule of Civil Procedure 37(a)(4) addresses “evasive” and “incomplete” answers. Federal Rule of Civil Procedure 37(a)(3) does the same for federal proceedings. Both are framed as motions to compel. As noted earlier, sanctions can range from monetary costs to broader remedies such as striking claims or defenses. Idaho Rule of Civil Procedure 30(d)(2), in turn, expressly prohibits counsel from impeding or otherwise frustrating “the fair examination of the deponent.” Federal Rule of Civil Procedure 30(d)(3) proscribes tactics during a deposition that are done in bad faith, or which “oppress” a party. Both incorporate the sanctions available under the respective versions of Rule 37.[xx] Depending on the circumstances, these rules should be read in conjunction with Idaho Rule of Civil Procedure 26(c) governing protective orders and its federal counterpart, Federal Rule of Civil Procedure 26(c).
Although these formal paths may provide remedies for the worst situations, they have inherent practical limitations.[xxi] Courts, for example, have commented on the difficulty of assessing asserted lawyer misconduct on the “cold record” of a deposition transcript alone.[xxii] Similarly, even a recording may need to be “enhanced” by a technical professional to reveal impermissible whispered instructions during a remote deposition.[xxiii]
Practical alternatives short of seeking formal relief will vary with the personalities and circumstances involved. Assuming that a simple discussion with opposing counsel does not address the situation,[xxiv] offering a standing objection (or stipulating that all objections other than to privilege are reserved until the deposition is offered) may provide a practical solution by taking away the reason for defending lawyer to interject serial speaking objections.[xxv] Although adding to the expense, noticing a deposition by video can sometimes discourage “bad behavior” by opposing counsel because, if necessary, it can be shown to the court concerned.[xxvi] This can be especially useful if conduct such as whispering answers is involved that would not show-up on a paper transcript.
The poignant passage from Britton quoted at the outset was coupled with a sage observation by the court: “‘[A]dvocacy which is both civil and professional is by far the most effective.’”[xxvii] Well prepared witnesses don’t need to be coached – whether through speaking objections or whispered suggestions – during their depositions. If opposing counsel, nonetheless, engages in impermissible coaching, both informal approaches and, if needed, formal remedies are available to address these situations. As identified within this article, attorneys can both prepare their witnesses to not need coaching and identify the telltale signs of coaching and then preserve the record as necessary to adequately protect their clients and their cases.
Mark J. Fucile of Fucile & Reising, LLP advises lawyers, law firms, and legal departments throughout the Northwest on professional responsibility and risk management. He is a member of the Idaho State Bar Litigation and Professionalism & Ethics Sections. He has chaired the Washington State Bar Committee on Professional Ethics and teaches legal ethics as an adjunct for the University of Oregon School of Law’s Portland campus. He can be reached at (503) 224-4895 or firstname.lastname@example.org.
[i] 2009 WL 10677843 at *1 (D. Idaho July 2, 2009) (unpublished).
[ii] Tim Gresback, Deposition Bullies, Witness Coaching and Discovery Abuse, 58 No. 11-12 Idaho State Bar Advocate 14 (Nov./Dec. 2015).
[iii] See, e.g., Mike Scarcella, Masked Lawyer Who Whispered to Client at Zoom Deposition Urges No Further Discipline, Reuters, Nov. 29, 2021 (available at www.reuters.com).
[iv] See, e.g., Idaho R. Civ. P. 30(b)(6) (duty to designate corporate representative); Fed. R. Civ. P. 30(b)(6) (same).
[v] See also Idaho State Bar Standards for Civility in Professional Conduct; U.S. District Court L. Civ. R. 83.8 (fairness and civility).
[vi] See generally State v. Severson, 147 Idaho 694, 718, 215 P.3d 414 (2009) (discussing “speaking objections” at trial); Teter v. Deck, 274 P.3d 336, 344-45 (Wash. 2012) (same).
[vii] Idaho R. Civ. P. 30(d)(4) addresses motions to terminate or limit depositions.
[viii] See, e.g., Oregon R. Civ. P. 39D(3); Washington Civ. R. 30(h)(2); Utah R. Civ. P. 30(c)(2).
[ix] See generally ABA Formal Op. 508 (2023) (discussing witness preparation, including improper coaching during depositions).
[x] In re Marriage of Wixom and Wixom, 332 P.3d 1063 (Wash. App. 2014) (disqualifying lawyer for conflict by attempting to shift responsibility for sanctions from lawyer to client).
[xi] See, e.g., Florida Bar v. James, 329 So.3d 108 (Fla. 2021) (lawyer disciplined under Florida versions of ABA Model Rules 3.4(a) and 8.4(d)); Matter of Claridge, Arizona State Bar No. 20-2214, Final Judgment and Order (Jan. 21, 2022) (unpublished) (lawyer disciplined under Arizona versions of ABA Model Rules 3.4(a) and 8.4(d)).
[xii] See Britton v. Dallas Airmotive, Inc., 2009 WL 10677843 at *6 (D. Idaho July 2, 2009) (unpublished) (Britton) (noting the availability of revocation of pro hac vice admission for improper deposition coaching and related misconduct).
[xiii] See, e.g., Britton, supra, 2009 WL 10677843 at *6 n.5 (noting improper speaking objections); Voss v. Voss, 169 Idaho 518, 528, 497 P.3d 1138 (Idaho App. 2021) (same).
[xiv] See, e.g., Britton, supra, 2009 WL 10677843 at *6 (criticizing repeated “form” objections); Teck Metals, Ltd. v. London Market Insurance, 2010 WL 11507595 at *6 (E.D. Wash. Oct. 20, 2010) (unpublished) (same).
[xv] See, e.g., Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 39-40 (D. Mass. 2001) (reframing questions and using extended colloquies to impermissibly coach witness).
[xvi] Id. (also frequently leaving the room with the witness when questions were pending); see also LM Ins. Corp. v. ACEO, Inc., 275 F.R.D. 490, 490-91 (N.D. Ill. 2011) (same).
[xvii] See, e.g., Gladden v. State, Spokane County, Washington Superior Court Case No. 20-2-00806-2, Sanctions Order at 2 (July 8, 2021) (unpublished) (lawyer sanctioned for whispering answers to witness off-camera); Shimkus v. Scranton Quincy Clinic Company, LLC, Lackawana County, Pennsylvania Court of Common Pleas No. 19-cv-3534, Memorandum and Order at 5-6 (Dec. 7, 2020) (unpublished) (same).
[xviii] See, e.g., Florida Bar v. James, supra, 329 So.3d 108 (texting); Matter of Claridge, supra, Arizona State Bar No. 20-2214 (using chat function).
[xix] See, e.g., Britton, supra, 2009 WL 10677843 at *6 (noting that while individual objections standing alone may have been permitted, repetitive “form” objections were impermissibly used to impede the deposition); see also Wachtell v. Capital One Financial Corp., 2006 WL 8446017 at *8-*9 (D. Idaho May 9, 2006) (unpublished) (concluding that objections did not impede deposition).
[xx] See also Idaho R. Civ. P. 30(d)(4) and Fed. R. Civ. P. 30(d)(3) (motions—albeit typically by the deponent—to terminate or limit depositions being conducted in bad faith).
[xxi] A bar complaint against the offending lawyer may be a possibility. See generally RPC 8.3 (addressing reporting professional misconduct). Given the timing of regulatory discipline, however, it may not be a practical solution to immediately address conduct in ongoing litigation.
[xxii] See, e.g., Jarvis v. Janney, 2012 WL 13093882 at *2 (E.D. Wash. Mar. 27, 2012) (unpublished) (“The Court is mindful that the written transcript does not provide the Court with the ability to gauge the passage of time, the tone, the inflection, the attitude or demeanor of any particular speaker.”).
[xxiii] See, e.g., Espinoza v. Hector Gabriel Chavarria and VRP Transportation, Inc., 2022 WL 136465 at *4-*5 (W.D. Tex. Jan. 14, 2022) (unpublished) (noting difficulty of discerning alleged coaching during Zoom deposition even with enhanced audio).
[xxiv] Conferral on discovery motions is generally required in both Idaho state and federal courts under, respectively, Idaho R. Civ. P. 37(a)(1) and U.S. District Court L. Civ. R. 37.1.
[xxv] See, e.g., Goodman v. First Unum Life Insurance Company, 2022 WL 2063995 at *1 (W.D. Wash. June 8, 2022) (unpublished) (noting standing objection as informal remedy).
[xxvi] See, e.g., Keenan v. BNSF Ry. Co., 2008 WL 1710100 at *2 (W.D. Wash. Apr. 8, 2008) (unpublished) (noting the court’s review of video to assess whether objections amounted to improper coaching).
[xxvii] Britton, supra, 2009 WL 10677843 at *3 (citation omitted).
By Fonda L. Jovick
Dear Law Foundation Members and Friends,
Thank you for being part of our important work. We appreciate your ongoing commitment to the work of the Idaho Law Foundation.
As you read through the information in this year’s annual review, you will see some of the many things we’ve accomplished. This is a brief snapshot of what the dedicated staff and volunteers of the Idaho Law Foundation have achieved with your donations and volunteer assistance.
I hope you have a sense of pride in knowing that you helped create this success. As we look forward, I urge you to continue to show your support for the Idaho Law Foundation, an organization that does so much for Idaho communities and citizens on our behalf.
Thank you again for all you do for the Idaho Law Foundation and the people of Idaho. It is my privilege to serve as the President of this wonderful organization and I look forward to working with you to help the profession serve the public.
Continuing Legal Education
Enhancing the education and competence of our members
- Increased overall attendance for ILF sponsored CLE programs by 11%.
- Shifted attendance from Online CLE to In-Person CLE, with a growth of 857% from the prior three years.
“As a presenter during the New Attorney Program, I get to connect directly with new lawyers about issues such as depression, anxiety, and alcohol and substance abuse that plague the legal community and what it means to serve those who suffer. It is an honor to be asked to discuss why giving back to our legal community is so vital for a healthy bar.” – Mack Mayo, CLE Volunteer, Attorney at Paine Hamblin
Idaho Volunteer Lawyers Program
Increasing access to civil legal services for low-income Idahoans
- A clinic attorney helped a brave, young woman review her social security disability appeal. She arrived at the clinic feeling desperate and left telling us that she was so grateful for the patience and compassion that the attorney showed her as they prepared for her day in court.
- A senior citizen who had just lost her son and was going through probate was helped by two clinic attorneys collaborating their time and expertise to get her the help that she needed during a time when she was overwhelmed with grief and the task of raising her young granddaughter.
- A homeless man who was struggling to gain financial stability was helped by a clinic attorney who took the time to advocate for him over the phone to an agency that was wrongfully suing him.
- An undocumented family was protected from enduring further violence with the help of clinic attorney who went above and beyond to research international service of family law documents.
“The unmet legal needs in our community far exceed existing resources. Many legal organizations are limited by the types of cases and clients they can help. IVLP is different because they don’t deny services to anyone based on legal issues involved. IVLP attorneys get to help clients with issues from family law to social security benefits to the reduction of criminal charges. I can help a client with on-the-spot advice if the problem is simple, provide the client with a referral, or take on a more significant role. And when I meet with a client who has a legal problem outside my expertise, IVLP gives me access to skilled and knowledgeable mentors who provide me with the information and guidance I need. In addition, IVLP clinics are offered at various locations and days so I can always find a clinic that works with my schedule.” – Shannon R., IVLP Volunteer
Law Related Education
Enhancing public understanding of and respect for the law and our legal system
- Coordinated the Idaho High School Mock Trial Competition for 216 students from 24 teams and six courtroom artists.
- Recruited 138 teachers, judges, attorneys, and other community leaders who donated their time to serve as mock trial coaches, advisors, judges, and competition staff.
- Developed and piloted a seven-part online mock trial training series to help newer coaches and competitors understand the skills necessary to participate in the mock trial competition.
- Awarded the second Mock Trial Civility & Ethics Award, created to highlight the importance of civility and professionalism among teams. The Logos School from Moscow was chosen by the other teams as the recipient of this year’s award.
Caroline Brown, a senior at The Ambrose School and a member of Idaho’s National High School Mock Trial team, was selected as one of 10 Outstanding Student Attorneys at the 2023 national competition. Caroline said she felt honored to have her name called and receive recognition among the nearly 400 other eloquent, talented, and knowledgeable competitors.
Caroline’s coach, Nick Duncan, reported that this is the first time a student from Ambrose has received an Outstanding Attorney Award. “I was not surprised. Caroline has a presence that demands the attention of the judges, jury, and even her competitors. In fact, the presiding judge from one of our trials told me that Caroline was the best attorney in the room, and that she owned the courtroom.”
As Caroline finishes her high school mock trial career and heads off to the University of Texas, she leaves a legacy as a great mock trial competitor that will be remembered. Hon. Jessica Lorello shared that she was pleased to learn that Caroline received the Outstanding Attorney Award. “Having had the privilege of seeing Caroline in action over the past few years and having worked with her in preparing for competition, I know the award was well-deserved. Caroline’s hard work and natural talent made her one of the best attorneys I have seen in mock trial.”
Support the Idaho Law Foundation
The Idaho Law Foundation appreciates the ongoing support of our donors. To contribute to the Law Foundation and our programs, visit our website at idaholawfoundation.org.
Fonda L. Jovick is one of the three experienced mediators/arbitrators at River’s Edge Mediation. She is also serving as the current President of the Idaho Law Foundation, Inc. Ms. Jovick has over 15 years of experience working in a variety of legal practice areas including commercial and complex litigation, real estate transactions and litigation, estate planning, probate and trusts, as well as family law.
By Mary V. York
In my last Commissioner’s Column,[i] I wrote of the 2022 legislation that sought to change the process for filling judicial vacancies and selecting members of the Idaho Judicial Council – the body statutorily charged with evaluating and recommending to the Governor judicial applicants for Idaho’s district and appellate courts. Governor Little vetoed the bill and invited the three branches of Idaho’s government to assemble a Judicial Selection Committee “to collaborate and identify areas of compromise that will increase the transparency, preserve impartiality, and improve judicial recruitment.” The Judicial Selection Committee met, deliberated, and ultimately arrived at a consensus proposal for legislation. At the time of my last article, the Legislature had not yet convened for its 2023 session, but now I can report on what transpired.
2023 Idaho Legislative Session
Senate Bill 1148
During its 2023 session, the Idaho Legislature advanced a new judicial council/judicial selection bill, accepting portions of the consensus proposal from the Judicial Selection Committee and modifying others. The resulting bill was S.B. 1148, which passed both chambers and was signed into law. The most significant parts of the bill included the following:
- The bill changed the selection process for Judicial Council members. The prior process was balanced between the attorney members being selected by the Idaho State Bar and the citizen members being selected by the Governor (all subject to Senate confirmation). Under the new process, the Governor selects all members of the Judicial Council (subject to Senate confirmation). The Governor’s selection of the two judicial members is made from a list of candidates submitted by the Idaho Supreme Court and the selection of the two attorney members is made from a list of candidates submitted by the Idaho State Bar. The selections continue to be subject to confirmation by the Senate.
- The bill increases the number of Council members who can be from a single political party such that a majority can now be from a single party.
- Judicial Council member terms decrease from six to four years.
- For the process of selecting judicial appointments, the Judicial Council must now submit the names of three-to-four applicants. Previously, only two-to-four were required.
- The Governor may request the Council re-open the process for screening judicial applicants and submit a second set of nominees.
- The bill provides that judicial election ballots will not identify sitting judges and justices as incumbents.
- The bill permits judicial candidates to obtain any comments made about them before their judicial council interview but identifying information about the commenter must be redacted.
Senate Bill 1157
In addition to S.B. 1148, the 2023 Legislature also advanced S.B. 1157. That bill provided that judges and justices who retired before the end of their terms would not be eligible to take advantage of the Plan B retirement option. The bill was held in the Senate and did not pass.
Judicial Salary Increases
A favorable outcome from this year’s legislative session is that the judiciary received a salary increase after the prior year’s increases failed to pass. The increase came after the prior years’ lack of an increase, when all state employees – except judges and justices – received a 7% cost-of-living pay raise. Thus, while the increase was given, judicial salaries did not catch up with prior state employee increases, and Idaho’s judiciary remains among the lowest in the nation. For point of reference, prior to the 2023 increases, the salaries for Idaho’s district judges ranked 49th in the nation. The impacts are not only felt by our judges and justices, who are deserving of salary increases, but it is also bound to impact the recruitment of applicants for judicial vacancies – an issue that is already impacting the ability to fill open positions.
Concerns Raised about S.B. 1148 and 1157
Senate Bill 1148
As with the legislation from 2022, significant concerns were raised about both bills. Among the issues raised about S.B. 1148 were:
- The bill’s authorization of the Governor to request a second slate of judicial candidates could give rise to the perception – rightly or wrongly – that the request was made to cherry-pick a particular individual for the position, irrespective of merit or qualification. Such a perception could undermine confidence in the current merit-based judicial selection process and suggest to some that politics, and not merit, form the basis for how Idaho judges are selected.
- S.B. 1148 changes the balance of how the Judicial Council members are selected from a process where the members are chosen by multiple entities to one where selection authority is predominately vested in a single authority. The Governor’s ability to select all Judicial Council members is narrowed by the Idaho State Bar (who recommends the attorney members) and the Idaho Supreme Court (who recommends the judicial members), and the selection remains subject to Senate confirmation. However, the concern still exists as to the expansion of power under S.B. 1148. This is particularly so in light of the decrease of the term of service for Council members, which will increase the turnover of members and corresponding influence the selection process has on Judicial Council members.
- The bill’s provision that a majority of the Council can be from one political party may heighten the perception that the judicial selection process is political and not merit-based.
- The increase in the number of judicial candidate names required to be submitted to the Governor may in some districts exacerbate the existing problem of low numbers of candidates applying for judicial vacancies. This in turn may result in a situation where the Council is required to submit a third name to the Governor even if it found that no third candidate was well qualified.
- The bill’s provision that judges and justices running for election not be identified as incumbents may require judges to spend more time campaigning and fundraising than performing their judicial responsibilities. Additionally, concerns exist that the public confidence in the courts would be diminished where judges are required to engage in political fundraising, particularly when they will likely be fundraising from those who appear before them. This may increase the perception that judicial decisions are based upon campaign contributions, rather than the merit of the case and the rule of law.
- Under the new law, judicial applicants may now learn what comments have been made to the Council about them before they sit for their interview. Although the identity of commenters would not be disclosed, concerns have been raised that commenters may be reluctant to submit candid comments, which could decrease the number of comments submitted about a judicial candidate.
Senate Bill 1157
For S.B. 1157, the concerns raised focused on the effort to force an election process for judicial vacancies by withholding a retirement benefit enhancement currently available for post-retirement service (“Plan B” service) for judges who retire prior to the end of their term of office. The system helps alleviate the workloads of Idaho judges and provides flexibility to allocate judicial resources where needed throughout the state. S.B. 1157 would have eliminated this benefit if a judge or justice retired prior to the end of his/her term, thereby reducing the number of judicial vacancies filled by merit-screened appointments. As noted previously, S.B. 1157 was held in committee.
In light of this last year’s legislation, there are sure to be more efforts to challenge the independence and impartiality of our judiciary. The concepts of judicial independence and impartiality are more than ideals. Rather, they are foundational principles that form the basis for a functioning system of government – principles for which we need to stand up and uphold, particularly now when our judicial system is being challenged unlike ever before. While judicial independence and impartiality is not officially the theme of this edition of The Advocate, there are two additional pieces in this edition on the topic – an article by past Dean of the University of Idaho College of Law, Don Burnett and a Letter to the Editor by former Chief Justice, Jim Jones. I encourage you to take the time to read their comments.
The importance of judicial independence and impartiality was a recurring theme at this year’s Idaho State Bar Annual Meeting. Distinguished Jurist award recipient, retired Chief Justice Roger Burdick and Distinguished Lawyer award recipient, Larry Hunter each raised the issue in their remarks. The topic was also the centerpiece of a blue-ribbon panel of distinguished presenters that I moderated. Further, the issue was discussed by Chief Justice Richard Bevan in his presentation about Idaho’s courts. Justice Bevan reminded us how we, as attorneys and officers of the court, are part of the third branch of government and how we should be more vocal and more impassioned about defending and standing up for the rule of law. He noted how we are witnessing a time when the comprehension of the rule of law is on the decline and the suggestion of politicizing the courts is being talked about with greater frequency.
Quoting from Idaho Supreme Court Justice William McKendree Morgan’s dissenting opinion from 1918, he underscored the fundamental and essential nature of the rule of law and the principles for which it stands. To paraphrase from the Chief Justice’s remarks, “The rule of law is what we have been given in sacred trust and which we must, with sleepless vigilance, guard as ‘the priceless gifts of free government.’” Justice Bevan’s comments could not be truer or timelier. Our courts are integral to how our society and democracy function, and we should not sit by and let them be weakened.
The call to Idaho attorneys to be a voice for the rule of law was another theme that coursed through the Annual Meeting. Judges are unable to defend themselves and therefore, as members of the Bar and as officers of the court, it is our responsibility to take an active role in defending the independence and impartiality of our judiciary. That action can take a myriad of forms – whether it is keeping apprised of legislation that affects the judiciary, contacting your legislator to express your concerns, speaking up in defense of unfounded attacks on the judiciary, or helping advance civic education about the courts and the rule of law.
The functioning of our democracy – and each person’s ability to obtain justice under a system of laws – is premised on a judicial system where judges can fairly apply the rule of law without undue external influence, coercion, or pressure, even when the decision may be disfavored. It is the “priceless gift of free government.”
Mary V. York is a litigation partner at Holland & Hart who has nearly 30 years of experience representing clients in condemnation cases, real estate disputes, and commercial litigation. In her spare time, Mary enjoys hiking, mountain biking, wake-surfing, cooking, and spending time with her family. Mary currently serves as an Idaho State Bar Commissioner representing the Fourth District.
[i] Mary V. York, Judicial Independence: A Cornerstone of Democracy Which Must Be Defended, 65 ADVOCATE 8 (2022).
By Teresa A. Baker
The 2023 Idaho State Bar Annual Meeting was held in Boise at Jack’s Urban Meeting Place (“JUMP”) from July 19th through the 21st.
The meeting kicked off with the Distinguished Lawyer, Distinguished Jurist, and Outstanding Young Lawyer Awards Reception on Wednesday evening. The awards ceremony began with President Laird B. Stone serving as the Master of Ceremonies with over 150 guests in attendance. The recipients of the 2023 Distinguished Lawyer Awards were Larry C. Hunter of Boise and Marvin M. Smith of Idaho Falls. The Distinguished Jurist Award was presented to the Honorable Roger S. Burdick, former Chief Justice of the Idaho Supreme Court. The Outstanding Young Lawyer Award was presented to Ashley R. Marelius of Boise. Each award recipient was introduced with a short video of an interview by a colleague or friend and then each graciously accepted their award at the podium. Ms. Marelius’ award was accepted by her law partners, as she was unable to be in attendance.
Thursday morning, July 20th, began with a Plenary Session in which President Stone gave an update on the state of the Bar and Idaho Supreme Court Chief Justice G. Richard Bevan gave an update on the state of the Idaho Courts. President Stone then introduced the keynote speaker, Jerry V. Teplitz, J.D., Ph.D. Dr. Teplitz spoke on the importance of attorney well-being and gave participants techniques and tools to increase their level of energy and productivity to better serve clients and themselves. A total of 5.5 CLE credits were offered on Thursday with two different breakout sessions offered. The late afternoon CLE session featured a session entitled “Preserving Independence, Impartiality, and Excellence in Idaho’s Court System: A Remarkable Judiciary, If You Can Keep It,” and featured a distinguished panel that was moderated by Idaho State Bar Commissioner Mary V. York. The panel included Justice Jim Jones, Former Chief Justice of the Idaho Supreme Court, Hon. Karen L. Lansing, retired member of the Idaho Court of Appeals, J. Philip Reberger, Idaho Judicial Council, and Donald L. Burnett, Jr., Dean Emeritus at the University of Idaho College of Law and an inaugural member of the Idaho Court of Appeals. The session was informative and thought-provoking for all.
During a Noon luncheon, the Idaho State Bar and Idaho Law Foundation Service Awards were presented with over 125 people in attendance. Seven lawyers from around the Gem State who have provided volunteer time to support the work of the Bar and the Law Foundation were honored including:
Mia Bautista of Moscow, Charles “Clay” Gill and Emily MacMaster of Boise, Casey Simmons of Coeur d’Alene, Brent T. Wilson of Salt Lake City, along with Debbie Dudley, the recently retired controller of the Idaho State Bar. Howard Burnett of Pocatello and William “Bill” McAdam of Sandpoint were also honored but were unable to attend. When the awards program concluded the Idaho Law Foundation held their Annual Meeting led by President Fonda L. Jovick of Sandpoint.
The Milestone Celebration and Awards Reception: Celebrating 25, 40, 50, 60 & 65 Years of Admission was held Thursday evening with over 130 people in attendance. The longest admitted member of the Bar in attendance was William Parsons, a 65-year member and was joined by 60-year attorneys Tony Park and Hon. Jesse Walters. The 50-year attorneys in attendance included Darrel Aherin, Ron Bruce, Linda Cook, Don Farley, James “Jim” Kaufman, Doug Nelson, Jerry Reynolds, Milton Slavin, Paul Street, Ron Twilegar, Cindy Weiss, and Hon. William Woodland. Each of these attorneys were presented with a plaque and each gave a highlight of their career. The 40- and 25-year attorneys were also honored with lapel pins for their attendance and dedication to the profession.
On Friday, July 21st an additional 4.5 CLE credits were offered to conference participants with two sets of CLE breakout sessions and the final plenary session. This year, the annual “Lessons from the Masters” was called “Lessons from the Bench” and featured Justice Colleen D. Zahn, Idaho Supreme Court, Hon. Debora K. Grasham, U.S. Magistrate, District of Idaho, and Hon. Nancy A. Baskin, Fourth Judicial District.
At Noon a networking BBQ was held with the Section of the Year Award presented to the members of the Employment and Labor Law Section. President Stone then passed the gavel to incoming President Gary L. Cooper who will serve as president until the next Annual Meeting in 2024. Lastly, the door prizes from our exhibitors were drawn from the meeting attendees who visited the exhibit hall.
The Annual Meeting would not be possible without the support of our sponsors. This year’s sponsors included platinum sponsors Idaho Trust Bank and the Fourth District Bar Association, gold sponsors University of Idaho College of Law and Clio, silver sponsors River’s Edge Mediation and the Idaho Community Foundation, and bronze sponsor Eagle Creek Recovery.
By James R. Cefalo
In recent years, there have been numerous news articles about the causes and impacts of declining water levels in the Great Salt Lake. Idahoans may feel that Great Salt Lake water levels are Utah’s problem. Idaho does, however, have an interest in the Great Salt Lake, because the lake is fed by streams that arise in or flow through Idaho. This article contends that Idahoans should become familiar with the Great Salt Lake issues and monitor the actions the federal government and the State of Utah are taking to address the decline in lake levels. This article provides some basic facts about the Great Salt Lake and its relationship to the Bear River. Additionally, it describes how changes in laws, regulations, and policies related to the Great Salt Lake could affect water users in Idaho, particularly those water users located in the Bear River Basin. The State of Idaho and its water users in the Bear River Basin should carefully monitor the actions intended to restore the Great Salt Lake to ensure those actions do not negatively impact water users in Idaho.
Great Salt Lake Basics
The Great Salt Lake is a terminal lake, meaning it has no natural outlet to the ocean.[i] It is the largest saline lake in the Western Hemisphere.[ii] The major tributaries to the Great Salt Lake are the Jordan River, which collects water from rivers and streams in the mountains surrounding Salt Lake City and Provo, the Weber River, and the Bear River.[iii] Of these three rivers, the Bear River is the largest tributary, accounting for approximately 60% of the freshwater entering the lake each year.[iv]
Water levels in the Great Salt Lake have been regularly monitored since the pioneers entered the Salt Lake Valley in the mid-1800s.[v] In 1986, the lake reached a historic maximum level at an elevation of 4,211.7 feet above sea level.[vi] At that level, the surface area of the lake is over 3,300 square miles.[vii] In November 2022, the lake reached a historic low at an elevation of 4,188.6 feet above sea level, roughly 23 feet lower than the high point in 1986.[viii] At the historic low water level, the surface area of the lake is only 950 square miles.[ix] To conserve water and prevent evaporation, the State of Utah has blocked off channels to the north arm of the lake, significantly reducing the active surface area of the lake.[x]
Bear River Basics
The Bear River is an interstate stream that flows through the southeast corner of Idaho.[xi] Its headwaters are in the Uinta Mountains in Utah.[xii] The Bear River flows from Utah into Wyoming, near Evanston, then back into Utah, then back into Wyoming, then flows into Idaho just east of Montpelier.[xiii] The Bear River flows north from Montpelier to Soda Springs, then turns south and flows past the communities of Grace and Preston before flowing back into Utah north of Logan, Utah.[xiv] The river flows into the Great Salt Lake on the east side of the lake, just west of Brigham City, Utah.[xv] Although the Bear River is over 500 miles long, it empties into the Great Salt Lake just 90 miles from its headwaters.[xvi]
In Idaho, the Bear River is primarily diverted for direct irrigation use. It is also diverted to fill Bear Lake, an augmented natural lake that also serves as a storage reservoir for downstream irrigators. Water users in Wyoming and Utah also divert water from the Bear River and its tributaries, primarily for irrigation use.[xvii]
In 1958, Idaho, Utah, and Wyoming adopted the Bear River Compact to resolve disputes about water deliveries in the Bear River Basin.[xviii] The Compact was amended in 1980 to include provisions about future water development within the basin.[xix] The Amended Compact has many fascinating nuances that could entertain a water law attorney for hours. For purposes of this article, however, it is sufficient to note that Idaho participates in a federally approved interstate compact which addresses water deliveries on the Bear River during times of shortage and governs future development of water resources within the river system.
Although the Amended Compact describes a process to initiate formal administration of water rights by priority date in the Lower Division (which extends from Bear Lake to the Great Salt Lake), the states of Utah and Idaho have voluntarily administered water rights in the Lower Division without regard to the Idaho-Utah state line. In other words, water rights on the main channel of the Bear River between Bear Lake and the Great Salt Lake are currently regulated against a common priority date.
Bear River Diversions and Great Salt Lake Levels
Some advocates for restoring the Great Salt Lake contend that the recent decline in lake levels is caused by an increase in diversions by upstream farmers and ranchers, particularly in the Bear River Basin. This contention fails to consider important nuances of water use in the Bear River Basin and is often presented as an attack on irrigators.
Water has been diverted from the Bear River and its tributaries for irrigation use since the late 1800s. In Idaho, many of the water rights for irrigation use from the Bear River or its tributaries bear priority dates senior to 1900, meaning the water rights were developed prior to 1900 and have been used for irrigation since the rights were first developed. In drought years, like 2021 and 2022, because of a limited surface water supply, the only water rights from the Bear River and its tributaries receiving water through most of the summer are those rights with priority dates senior to 1900. In drought years, junior water rights (those with priority dates later than 1900) on the Bear River and its surface water tributaries have little impact on water levels in the Great Salt Lake because those water rights receive little or no water.
As part of the 1980 Amended Compact, the states of Idaho, Utah, and Wyoming agreed to track future depletions in the Bear River Basin.[xx] In April 2023, the Bear River Commission approved a report summarizing the depletions occurring in the Bear River Basin since 1976.[xxi] According to the report, since 1976, there have been only 14,410 acre-feet of additional depletions developed above Stewart Dam (located near Montpelier, Idaho) and only 11,307 acre-feet of additional depletions developed between Stewart Dam and the Great Salt Lake.[xxii] In total, the water developments occurring after 1976 only consume approximately 26,000 acre-feet of water. To put that number into perspective, at the historic low water level in November 2022, the Great Salt Lake contained approximately 4.5 million acre-feet of water.[xxiii]
The 2023 report shows there have been very minor changes to the annual depletions occurring in the Bear River Basin since 1976. In fact, in some areas of the basin, total depletions are lower today than in 1976.[xxiv] The Great Salt Lake hit its maximum recorded lake level in 1986. The total water use from the Bear River has only slightly increased since 1986, yet the lake levels have declined dramatically. What has changed? The answer is simple: snowpack, or lack thereof. Between 1982 and 1986 (the historical maximum lake level), the Bear River Basin had consecutive years of above-average snowpack. In the 10 years prior to 2023, the Bear River Basin had only one year with snowpack significantly above the average (2017), four years with near average snowpack (2014, 2016, 2019, and 2020), and five years of below average snowpack (2013, 2015, 2018, 2021, and 2022).[xxv]
To a large extent, the use of surface water in the Bear River drainage has remained steady for nearly 150 years, particularly in drought years, when junior rights are curtailed. Despite this steady historical irrigation use, the Great Salt Lake reached a maximum recorded lake level in 1986. Although water users in the Bear River Basin have some impact on lake levels, it seems unfair to solely blame those water users for the current woes of the Great Salt Lake.
Future Development in the Bear River Basin
It is important to note that the opportunities for additional water development in the Bear River Basin in Idaho are quite limited. In Idaho, the Bear River and its tributaries have been considered fully appropriated during the irrigation season since the early 1980s. In 2001, the Bear River Basin in Idaho was designated as a Ground Water Management Area (“GWMA”), pursuant to Idaho Code § 42-233b. As such, the depletions (consumptive use) associated with new ground water uses (except for small domestic and stock water uses) must be fully mitigated by commensurate reductions in consumptive use.
The Malad River originates in Idaho and flows into the Bear River in Utah. In November 2015, the Idaho Department of Water Resources issued a moratorium on new appropriations from ground water in Malad Valley. Like the Bear River GWMA, new consumptive uses of ground water in Malad Valley (except for small domestic and stock water uses) must be fully mitigated.
Utah has taken similar steps to restrict future development in the Bear River Basin in Utah. Because of concerns about Great Salt Lake levels, on November 3, 2022, Governor Cox of Utah issued Proclamation No. 2022-01, suspending the appropriation of the surplus and unappropriated water of the Great Salt Lake and its tributaries, including the Bear River.[xxvi] The proclamation does not have a specific term or sunset provision but does call for the State Engineer to prepare a report evaluating whether the proclamation should remain in effect.[xxvii]
The federal government is also acting on Great Salt Lake concerns. In December 2022, President Biden signed the Saline Lake Ecosystems in the Great Basin States Program Act of 2022, which authorizes the United States Geological Society (“USGS”) to create a program “to assess and monitor the hydrology of saline lake ecosystems in the Great Basin,” including the Great Salt Lake.[xxviii] The USGS will work with Tribal, Federal, and State agencies, nonprofit organizations, universities, and local stakeholders to prepare a report describing specific actions needed to improve data collection for the assessment of saline lakes in the West.[xxix] The act allocates $25 million over five years to complete the report and implement the assessment and monitoring programs.[xxx] Of note, the act states that it shall have no effect on existing water rights, interstate compacts, or the management and operation of Bear Lake.[xxxi]
“Saved Water” for the Great Salt Lake
On March 14, 2023, Governor Cox of Utah signed S.B. 277, which significantly revised Utah’s laws related to water conservation. S.B. 277 creates an “agricultural water optimization” program, which allows Utah irrigators to apply for grants to install water conservation infrastructure. The statute identifies the water conserved through these infrastructure projects as “saved water.” In addition, S.B. 277 describes a process by which a water user in Utah can file a change application (transfer application) to designate a portion of their water right as “saved water.” The saved water can then be sold or leased to others and possibly sold or leased to the State of Utah to increase water levels in the Great Salt Lake.[xxxii] Moving saved water to a new location or dedicating the saved water to a new use raises concerns about injury to other water users and enlargement of use. The following hypothetical illustrates these concerns.
Assume Farmer Stewart diverts water from Canyon Creek. Also assume Stewart’s existing irrigation system is fairly inefficient – open ditches and flood irrigation. Although Stewart diverts 10 cubic feet per second (cfs) of water, his crops only consume about 60% (6 cfs) of the water. The remaining 40% (4 cfs) returns to Canyon Creek, either on the surface or subsurface, and is used to satisfy downstream water rights. Assume Stewart now installs pipelines and a drip irrigation system to become more efficient. Stewart’s crops continue to consume about 6 cfs, but now Stewart only diverts 6 cfs because his system is so efficient. The remaining (undiverted) 4 cfs is “saved water.” If the 4 cfs is simply left in the creek, it could still be used to satisfy downstream water rights. If, on the other hand, Stewart is allowed to sell or lease the 4 cfs to another water user or dedicate the 4 cfs to lake recovery, the 4 cfs is no longer available to satisfy downstream water rights. To satisfy downstream water rights (that used to rely on the 4 cfs of return flow from Stewart), upstream junior water rights (possibly junior water rights in other states) would have to be curtailed to replace the 4 cfs of saved water sold or leased by Stewart.
In Idaho, a water user may convey all or a portion of a water right to another person. Idaho Code § 42-222(1) states that this type of conveyance can be approved, provided the change does not injure other water rights or result in an enlargement of use under the original right. To protect against injury and enlargement, when a water user proposes to change the nature of use of a water right, such as from irrigation to municipal use, the State of Idaho limits the new use to the consumptive portion of the water right to be changed. Statutes governing change applications in Utah contain similar protections against injury and enlargement.[xxxiii]
It is unclear whether S.B. 277 revises Utah’s protections against injury and enlargement for change applications involving saved water. S.B. 277 distinguishes between “depletion reduction,” which means a “net decrease in water consumed,” and “diversion reduction,” which means a “decrease in the net diversion amount from that allowed under a water right.”[xxxiv] In one section, S.B. 277 suggests that water users will only be able to convert depletion reductions from irrigation use to “saved water.”[xxxv] In other areas, however, S.B. 277 states that “saved water” is comprised of depletion reductions and diversion reductions.[xxxvi] This is a critical question. If “saved water” includes diversion reductions and can now be dedicated to fully consumptive uses, like Great Salt Lake restoration, there could be significant injury and enlargement impacts for upstream water users, including water users in Idaho.
The Great Salt Lake is a unique and valuable ecosystem and Utah’s efforts to restore and preserve the lake are commendable. These restoration and preservation efforts, however, cannot come at the expense of water rights or water users in Idaho. Over the coming years, as Utah begins to apply S.B. 277, Idahoans must pay close attention to how the water conservation program is implemented to ensure that changes involving “saved water” do not shift impacts to water users in Idaho.
James R. Cefalo is the Eastern Regional Manager for the Idaho Department of Water Resources (“IDWR”). He received a bachelor’s degree in civil in environmental engineering from the University of Utah and a J.D. from the University of Colorado. James was born and raised in Brigham City, Utah, which lies just east of the Bear River Migratory Bird Refuge. The opinions expressed in this article are the author’s and are not the opinions or positions of IDWR or the State of Idaho.
[i] Wayne Wurtsbaugh, Craig Miller, Sarah Null, Peter Wilcock, Maura Hahnenberger, Frank Howe, Impacts of Water Development on Great Salt Lake and the Wasatch Front, Watershed Sciences Faculty Publications (Feb. 24, 2015).
[ii] Great Salt Lake, Utah Division of Water Resources,https://water.utah.gov/great-salt-lake/.
[iii] Wurtsbaugh, supra note 1, at 1.
[v] Great Salt Lake, supra note 1.
[x] Great Salt Lake, supra note 1; Utah Exec. Order 2023-02 (Feb. 23, 2023) (ordering the Utah Division of Forestry, Fire, and State Lands to raise the berm around the causeway bridge, which spans the channel connecting the North Arm of the Great Salt Lake to the main body of the lake, to 4,192 feet above sea level); see also Ben Winslow, Water now spilling over emergency causeway berm in the Great Salt Lake, Fox 13 News, https://www.sltrib.com/news/2023/05/03/water-now-spilling-over-emergency/ (reporting that water was spilling over the emergency berm in May 2023 because of increased lake levels).
[xi] https://bearrivercommission.org/docs/Bear%20River%20Basin%20Map-goodscan.pdf (diagram of Bear River Basin prepared by the Bear River Commission).
[xvi] The Bear River, Wyoming State Water Plan, Wyoming Water Development Office, https://waterplan.state.wy.us/BAG/bear/briefbook/bcompact.html.
[xvii] Id. (Between Idaho, Utah, and Wyoming, over 500,000 acres are irrigated from the Bear River and its tributaries).
[xviii] The Bear River Commission, an entity created through the Bear River Compact, prepared an excellent report of the disputes and negotiations leading up to the ratification of the 1958 Compact and the 1980 Amended Compact. The report, written by Wallace N. Jibson and titled “History of the Bear River Compact,” can be found on the commission’s website: https://bearrivercommission.org/docs/History%20of%20Bear%20River%20Compact.pdf.
[xix] I.C. § 42-3402, Article V.
[xx] I.C. § 42-3402, Article V(C).
[xxi] 2019 Depletions Update (April 18, 2023) at 2. The 2019 Depletions Update is a report prepared by the Technical Advisory Committee for the Bear River Commission and does not identify authors by name. It was adopted by the commission at its annual meeting on April 18, 2023.
[xxii] Id. An acre-foot of water is a measurement of volume, one foot deep covering one acre, and is equal to 325,850 gallons of water.
[xxiii] See Robert L. Baskin, Calculation of Area and Volume for the South Part of the Great Salt Lake, United States Geological Survey (2005), https://pubs.usgs.gov/of/2005/1327/PDF/OFR2005-1327.pdf.
[xxiv] 2019 Depletions Update (April 18, 2023) at 2 (Utah’s depletions downstream of the Idaho-Utah state line are 5,336 acre-feet less today than in 1976).
[xxv] https://www.nrcs.usda.gov/Internet/WCIS/AWS_PLOTS/basinCharts/POR/WTEQ/assocHUCut_8/bear.html (displaying annual snowpack data collected by the U.S. Natural Resources Conservation Service).
[xxvi] Utah Proclamation 2022-01, Utah Code § 73-61 (Nov. 3, 2022). The proclamation restrictions do not apply to non-consumptive uses or appropriations of small amounts of water. Id.
[xxviii] Pub. L. No. 117-318, 136 Stat. 4421 (2002).
[xxxii] Amy Joi O-Donoghue, Shift in Utah Water Law could be “Game changer’ for the Great Salt Lake, Deseret News (March 7, 2023).
[xxxiii] Utah Code § 73-3-3(1)(e).
[xxxiv] Utah Code § 73-10g-203.5(7) and (8).
[xxxv] Utah Code § 73-10g-208(1)(a).
[xxxvi] Utah Code §§ 73-10g-203.5(10), 73-10g-208(2).