by Lori A. Fleming

Senior Staff Attorney and Reporter

Idaho Supreme Court Rules Advisory Committees

The following is a list of rule amendments approved by the Idaho Supreme Court in the past year. The orders amending these rules can be found on the Idaho Supreme Court website at http://www.isc.idaho.gov/recent-amendments. Be sure to check the Idaho State Bar E-bulletin for your chance to comment on proposed amendments before adoption. Unless otherwise indicated, the effective date of all amendments and new rules is July 1, 2024.

Idaho Court Rules Governing Disqualification of Judges Without Cause.

During the COVID-19 pandemic, the Idaho Supreme Court issued emergency orders suspending the use of disqualifications without cause. The disqualification rules were eventually reinstated, but not without incident. Late last year, the Idaho Supreme Court issued orders suspending the use of disqualifications without cause in three of Idaho’s judicial districts, after determining that such disqualifications were being misused or were being filed with such frequency as to impede the efficient administration of justice. The Court has studied the advantages and disadvantages of the disqualification without cause rules and has considered the viewpoints of both the judges who are subject to those rules and the attorneys who use them. After much discussion, including about whether to do away with the rules entirely, the Court determined that the disqualification without cause rules continue to serve as a useful tool for attorneys and parties to resolve any legitimate concerns they may have regarding the fairness of a particular proceeding before a particular judge. However, the Court also saw a need to more closely oversee the use of disqualifications without cause and to impose consequences tailored to the situations in which that tool is misused. Thus, effective July 1, 2024, Idaho Rule of Civil Procedure 40, Idaho Rules of Family Law Procedure 109, and Idaho Criminal Rule 25 were amended to make clear that, upon finding that motions for disqualification without cause are being misused, or are being filed with such frequency as to impede the administration of justice, the Court may take appropriate action to address the misuse or impediment. Such action may include: (1) prohibiting specified attorneys or law firms from using disqualifications without cause for such period of time as is set forth in the order or until further order of the Court; (2) an order suspending the use of disqualifications without cause in the affected judicial district or county for such period of time as is set forth in the order or until further order of the Chief Justice; or (3) any other action that the Court deems appropriate. It is the Court’s hope that these amendments will encourage attorneys to be more thoughtful when exercising the privilege the disqualification without cause rules bestow.

Idaho Appellate Rules

The Idaho Appellate Rules Advisory Committee is chaired by Chief Justice G. Richard Bevan.

            Rule 7.1. Intervention. Idaho Appellate Rule 7.1 sets forth the procedure for intervention in appeals and other proceedings governed by the appellate rules. The rule has been amended to state that, in exercising its discretion to grant or deny an application to intervene, the Court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

            Rule 11. Appealable Judgments and Orders. Idaho Appellate Rule 11(a)(8) provided for an appeal as a matter of right from any order appealable under the Uniform Arbitration Act. Recognizing there are other statutes that provide a right of appeal, the Court has amended Rule 11(a)(8) to more broadly provide for an appeal as a matter of right from any district court order that is expressly made appealable by statute.

            Rules 11.1 and 12.1. Permissive Appeals in Custody and Guardianship Cases. In August 2023, the Court entered an order temporarily amending Idaho Appellate Rules 11.1 and 12.1, as well as Idaho Rule of Civil Procedure 83(a)(1), to allow a party to a Child Protective Act proceeding to seek a direct permissive appeal of those orders and decrees identified in Idaho Code section 16-1625(1). The purpose of the amendments was to resolve inconsistencies between the language of the Court’s rules governing permissive appeals in Child Protective Act proceedings and the language of Idaho Code section 16-16-25(1), which identifies a number of orders and decrees from which a party to a Child Protective Act proceeding may seek a direct permissive appeal to the Idaho Supreme Court. Effective July 1, 2024, the temporary amendments were made permanent. Also effective July 1, 2024, Rules 11.1 and 12.1 were amended to allow any party to seek an immediate appeal to the Supreme Court of any final judgment, or order entered after final judgment, in a guardianship proceeding arising under Title 15, Chapter 5 of the Idaho Code. Pursuant to the broad language of the rule, the right to seek a direct permissive appeal applies in all guardianship cases, not just in those cases involving guardianship of a minor.

            Rule 14. Defining “Physical Filing.” Idaho Appellate Rule 14(a) states that an appeal as a matter of right may be made only by “physically filing” a notice of appeal with the clerk of the district court. The rule has been amended to clarify that “physical filing” includes electronic filing in conformance with the Idaho Rules of Electronic Filing and Service.

            Rule 17. Jurisdictional Statement in Notice of Appeal. Idaho Appellate Rule 17(g) requires that a notice of appeal contain a jurisdictional statement setting forth the basis for the right to appeal. The rule has been amended to require a citation to any statute under which the order or judgment is made appealable.

            Rule 28. Content of Standard Clerk’s Record. Idaho Appellate Rule 28(b) sets forth the documents that are included in a standard clerk’s or agency’s record in civil, criminal, and administrative appeals. The rule has been amended to include the parties’ briefing on intermediate appeal as part of the standard clerk’s record in civil and criminal cases.

Idaho Court Administrative Rules

            Rule 32. Access to Judicial Records. Effective January 1, 2024, Idaho Court Administrative Rule 32, governing access to judicial records, was amended to include a new subsection shielding from public disclosure all court records of a criminal case in which a “Clean Slate” petition filed pursuant to Idaho Code section 67-3004(11) has been granted.

Rule 52. Court Interpreters.  The Idaho Supreme Court is committed to removing barriers that hinder equal access to justice by individuals with limited English proficiency. In furtherance of that commitment, the Court has made a number of amendments to Idaho Court Administrative Rule 52, which governs the appointment and use of court interpreters who provide spoken language interpretation. Among other things, the amended rule contains updated definitions of court interpreter classifications, provides that the Administrative Office of the Courts shall administer the Court Interpreter Training and Certification Program, sets forth the priority for appointment of court interpreters, requires that all interpreters not listed on the roster of approved interpreters take an oath on the record before the start of the court proceeding for which the interpreter is interpreting, requires court interpreters on the roster to file a written oath with the Administrative Office of the Courts, and clarifies that the fee for the interpreter’s services is to be paid out of the district court fund or by the county and, in no circumstances, by the individual for whom the interpreter’s services are required.

            Rule 100.  Mental Commitments. Idaho Court Administrative Rule 100 sets forth the procedures that must be followed in mental commitment cases. Effective April 30, 2024, the rule was amended to provide a detailed process that must be followed when a temporary custody order is sought and/or issued after office hours, during the weekend, or on a holiday. The amended rule also allows the use of an electronic signature on any document that is required or permitted under the rule and that is transmitted electronically, so long as it includes a written certification or declaration under penalty of perjury, or an affidavit or notary’s seal, in accordance with I.R.E.F.S. 9.

Idaho Criminal Rules

The Idaho Criminal Rules Advisory Committee is chaired by Justice Cynthia K.C. Meyer.

Rule 54.  Appeals from Magistrate Court Decisions. Idaho Criminal Rule 54 governs appeals from decisions of magistrate courts in criminal cases. Subsection (a)(1)(I) of the rule has been amended to provide that a permissive appeal from the magistrate court to the district court must be processed in the manner provided by a new rule, I.C.R. 54.1. Subsection (a)(2) has been amended to more clearly state that, when a magistrate judge has been assigned to act as a district court pursuant to I.C.A.R. 6, an appeal from any final or interlocutory order entered by the magistrate judge in the assigned case must be taken directly to the Supreme Court and processed in the manner provided by the Idaho Appellate Rules.

New Rule 54.1. Appeal by Permission from Interlocutory Orders of Magistrate Judges. This new rule sets forth the procedures that must be followed when a party seeks permission to appeal from an interlocutory order entered by a magistrate court in a criminal case. The language of the new rule is substantially similar to the language of I.A.R. 12, but it makes clear that, in a criminal case, no request for permission to appeal from a magistrate court decision may be made to the Supreme Court.

Idaho Infraction Rules

            Rule 9(b). Infraction Penalty Schedule. The Infraction Penalty Schedule has been amended to reflect a number of new infractions that were created by the Idaho Legislature during the 2024 Legislative Session.

Idaho Juvenile Rules

The Juvenile Justice Advisory Committee is chaired by Judge Mark Ingram.

Rule 35. Guardian ad Litem Programs. Idaho Juvenile Rule 35 requires Guardian ad Litem (“GAL”) volunteers to obtain a national fingerprint based criminal records check before being assigned to a Child Protective Act case. The rule has been amended to require GAL volunteers to obtain a new national fingerprint based criminal records check every four years following assignment to a case, and at any time requested by the Program Director.

New Rule 41A. Discovery for Adjudicatory Hearings. The timeline for adjudicating cases under the Child Protective Act is condensed and requires more expedited discovery than is established by the Idaho Rules of Civil Procedure. To facilitate child protection timelines, the Court adopted new Idaho Juvenile Rule 41A, which sets forth the requirements for disclosure of witnesses, documents, and other evidence to be used at the adjudicatory hearing. The new rule makes clear that other formal discovery disclosures, including but not limited to discovery disclosures provided in the Idaho Rules of Civil Procedure, do not apply unless otherwise ordered by the court.

Idaho Rules of Civil Procedure

The Civil Rules Advisory Committee is chaired by Justice Robyn Brody.

            Rule 1. Scope of Civil Rules. Idaho Rule of Civil Procedure 1, setting forth the scope of the civil rules, has been amended to clarify that proceedings regarding the hospitalization of the mentally ill, pursuant to Idaho Code sections 66-326(1) and 16-2413, are governed by the Idaho Court Administrative Rules.

            Rule 83. Appeals from Decisions of Magistrate Judges. Idaho Rule of Civil Procedure 83 governs appeals from decisions of magistrate courts in civil cases. A number of amendments have been made to this rule. First, subsection (a)(1)(B)(ii) has been amended to allow a party to a Child Protective Act proceeding to seek an immediate appeal to the Supreme Court of those orders and decrees identified in Idaho Code section 16-1625(1). Second, subsection (a)(1)(B)(iii) has been amended to allow any party to seek an immediate appeal to the Supreme Court of any final judgment, or order entered after final judgment, in a guardianship proceeding arising under Title 15, Chapter 5 of the Idaho Code. Third, subsection (a)(2)(E) has been amended to provide that a permissive appeal from the magistrate court to the district court must be processed in the manner provided by a new rule, I.R.C.P. 83.1. Fourth, subsection (a)(3) has been amended to clarify that, when a magistrate judge has been assigned to act as a district court pursuant to I.C.A.R. 6, an appeal from any final or interlocutory order entered by the magistrate judge in the assigned case must be taken directly to the Supreme Court and processed in the manner provided by the Idaho Appellate Rules. Finally, subsection (e) has been amended to state that, during the pendency of an appeal, the magistrate judge has the same powers and authority granted to a district judge by I.A.R. 13(b) and 13.4.

          New Rule 83.1. Appeal by Permission from Interlocutory Orders of Magistrate Judges. This new rule sets forth the procedures that must be followed when a party seeks permission to appeal from an interlocutory order entered by a magistrate judge in a civil case. The language of the new rule is substantially similar to the language of I.A.R. 12, but the new rule makes clear that, with very limited exceptions, no request for permission to appeal from a magistrate court decision may be made to the Supreme Court.

Idaho Rules for Electronic Filing and Service

            Rule 5. Exceptions to Electronic Filing of Documents. Idaho Rule for Electronic Filing and Service 5 identifies a number of documents that are excepted from the electronic filing requirements. Effective April 30, 2024, the rule was amended to include among those exceptions documents delivered pursuant to Idaho Court Administrative Rule 100 (Procedural Rules for Mental Commitments) after hours, during the weekend, or on a holiday. Pursuant to new subsection (k), those documents must be filed in accordance with the procedure set out in I.C.A.R. 100. 

            Rule 9. Electronic Signatures. Idaho Rule for Electronic Filing and Service 9(b) requires all electronically filed documents signed by the court to be scanned or otherwise electronically produced in a manner that shows the judge’s original signature or a digital image thereof. Effective April 30, 2024, the rule was amended to provide that a temporary custody order issued after office hours, during the weekend, or on a holiday pursuant to I.C.A.R. 100(b)(3) may be signed with any reliable type of electronic or digital signature that has built-in protective features, including embedded information, qualification, identity verification, or cryptographic security.

Idaho Bar Commission Rules

            Following the 2023 Resolution Process, the Board of Commissioners of the Idaho State Bar proposed, and the Idaho Supreme Court adopted, a number of changes to the Idaho Bar Commission Rules. Effective March 1, 2024, Sections III, V, VI, and XI were amended to permit electronic service and notice; Section II was amended to make admission based on practice experience available to attorneys from any jurisdiction, and to include judicial law clerk work in the definition of “Active Practice of Law”; Section IX was amended to permit electronic voting on resolutions and to change the language for “emergency” resolutions to “time-sensitive” resolutions; Section IV was amended to increase MCLE application fees for CLE course providers, with a reduced fee for Idaho Affinity Groups; and Section V was amended to require reimbursement of funds owed to the Bar or Client Assistance Fund as a condition of reinstatement. Effective May 1, 2024, Section III was amended to add a retired judicial member licensing status.