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 49^th 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.

Moving Forward

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).