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School facilities in the wrong way

The Idaho Supreme Court ruled in 2005 that the Legislature has the constitutional duty to provide for the construction and maintenance of safe public schools for Idaho children. The state has the primary responsibility for school facilities, not local property taxpayers. Those of us on the Court expected to see some legislative action to comply with the ruling, but little of substance has been done since then to get the job done.

In recent years there has been a growing chorus of responsible legislators, demanding that action be taken to comply with the constitutional mandate. Studies showing the deplorable condition of public school facilities and unrest amongst property taxpayers helped to fuel that chorus. This year, to his great credit, Governor Brad Little called for spending $2 billion dollars over the next 10 years in an attempt to address the problem.

House Speaker Mike Moyle, who had not previously demonstrated a great deal of interest in school facilities, undoubtedly saw the growing groundswell for action and also recognized that corrective legislation would provide a great vehicle for a tax cut that would be popular with his voters. Thus was born House Bill 421, which calls for spending $200 million per year on school facilities, while reducing corporate and individual taxes by $60 million. It’s hard to figure out how that math works.

Aside from the accounting problem, a constitutional issue–the one-subject rule–raises its foreboding head. Article 3, section 16 of Idaho’s Constitution says that every legislative act “shall embrace but one subject and matters properly connected therewith.” A violation of the rule can result in a court voiding the act. The Legislature frequently ignores the rule, which is not a problem if there is no court challenge.

HB 421 has several subjects besides just amending school facility financing laws and the seemingly unrelated income tax statutes. It amends a number of other laws, including those pertaining to the State Board of Education, school bond elections, property taxes, distribution of Lottery income, state public defenders and several others. In the event of a court challenge, the state would be hard pressed to show a connection amongst all of the bill’s provisions.

Enough money is involved here that a litigant might come forward to challenge the conglomeration of subject matter. Although it would not be a silver bullet, the bill sponsors should immediately call upon the Attorney General to issue an official opinion, attesting that HB 421 complies with the one-subject rule. That may help to get the bill enacted and, at the same time, discourage court challenges. The bill does not have a severability provision so the entire bill would go down if two unrelated provisions were proven in court.

As far as the substance of the bill goes, there is much to like and much to dislike. On the minus side–the money is woefully insufficient to address the magnitude of the problem; a much greater state investment should be made at the front end to remedy dangerous school conditions, particularly in rural areas; and the funding formula contains inequities. On the plus side–a bird in the hand is worth two in the bush; it has taken 19 years to gain the attention of the Legislature and we can’t afford to kick the can further down the road; and any problems can be remedied in subsequent legislative sessions if the bill passes in its current form.

With the Legislature seemingly intent on taking action this year, a strong effort should be made in the Senate to remove some of the unrelated subjects, particularly the income tax provisions, and amend some of the obnoxious provisions. The public must weigh in to influence the outcome. If HB 421 reaches the Governor’s desk in the present form, it is about a 50-50 proposition as to whether he should approve it.

 

Finding AI solutions

There’s a growing and widespread consensus that artificial intelligence technology needs legal guardrails, and political ads and communications are one of the prime places lawmakers are looking to place them.

As Kathy Wai of the Oregon Secretary of State’s Office put it in recent legislative testimony: “Campaigns can easily create high-quality, convincing AI generated content in the form of images, voices, deepfakes and other forms of (AI). AI is an evolving threat in our highly charged mis, dis and mal-information environment.”

Effective solutions, though, will not come easily. Getting the details right, and finding aggressive solutions, can be tricky, and it will take a persistent, ongoing effort.

In Oregon, Senate Bill 1571 would require disclosure of the use of AI to create a false impression In campaigns in ads or other materials. It came from Sen. Aaron Woods, D-Wilsonville, but also has backing from 27 other legislators in both parties and across the philosophical spectrum. It passed the Senate on Monday, and goes to the House for consideration.

The bill would carry teeth: Campaigns caught using AI and not disclosing it could face a fine up to $10,000 for each violation. It would exempt news media and some satirical publications from the requirements, and would allow the secretary of state to draft rules to put enforcement into effect.

But even if campaigns disclose the use of AI in any campaign material, any ad, flyer or other message still could easily lead to false impressions – usually about the subject of an attack. And with AI technology becoming so commonplace nationally, it’s likely to start showing up in small and local political activities before long.

Oregon isn’t the first state to consider regulating the use of AI in campaigns. Quite a few states already have entered the fray: Half of all the states considered AI-related legislation in last year’s session, and they’ve adopted varying approaches.

A law passed in Texas in 2019 bans deepfakes within 30 days of an election if the purpose is “to injure a candidate or influence the result of an election.” California that year – and again in 2022 – passed a roughly similar measure with a 60-day period. Washington state last year added a law banning AI messages with an “appearance, speech or conduct that has been intentionally manipulated with the use of generative adversarial network techniques or other digital technology” that give a false impression of a candidate or issue.

The Oregon bill defines a false impression as, “A fundamentally different understanding or impression than a reasonable person would have from the unaltered, original version of the image, audio recording or video recording.” That still might afford significant wiggle room in specific cases if one got to court.

There’s also a reasonable question in most of these efforts about how effective those rules would be. The required disclosure in the Oregon bill, for example, might translate into a small-print notice that would be ignored by viewers or readers emotionally swept away by powerful images.

In the Senate Rules Committee hearing, almost all the testimony on SB 1571 was favorable. However, a major exception was Emily Hawley from the American Civil Liberties Union who said, “We appreciate the scale of these potential electoral risks but believe this bill as written would likely be challenged and overturned.”

Oregon law already has long-standing limits on speech in areas such as libel, fraud in some cases, soliciting, perjury and conspiracy, and but Hawley said that while the new bill covers some of that territory, it doesn’t “proscribe the speech only when it actually or necessarily produces the harm.”

AI is evolving so fast – as are its uses  – that it has become hard to define. That doesn’t mean Oregon legislators should wait to address it, but it means they ought to set up an ongoing review – probably a persistent interim committee – to monitor its evolution and track the ways laws might usefully address it. They should anticipate this will be an ongoing work area for years to come.

In arguing for the current Oregon bill, Woods, the sponsor, said “The bill will build awareness.” That it may do, whether it passes or even if it doesn’t, since more voters may be locally alerted to some of the new ways some candidates or causes may try to deceive them. And that would be a significant plus all by itself, whatever the legal challenge emerging down the road.

 

Once a vice, now a norm

When then-Arizona Sen. Barry Goldwater took the stage at the Cow Palace in San Francisco in 1964 to accept the Republican nomination for president, he uttered one of the most famous — or infamous — lines in American political history.

“I would remind you that extremism in the defense of liberty is no vice.” Goldwater told a raucous GOP convention crowd. “And let me remind you also that moderation in the pursuit of justice is no virtue.”

Hearing those words, one shocked observer blurted out that the candidate really was going to “run as Barry Goldwater.”

Yet Goldwater’s entire career — he served in the Senate for 30 years before and after his presidential campaign — was, at least by the standards of the modern Republican Party, more conventionally conservative than not. His enduring line about extremism was as much a rhetorical device to rally the conservative base — sound familiar? — as an ideological proclamation.

Goldwater needed the radicals in his party in that long-ago campaign. Despite being a devoted anti-communist, opposing the Civil Rights Act in 1964 and preaching low taxes and small government, Goldwater was stepping up to lead a party going even farther right. At the same time, Goldwater was decidedly not a cultural warrior, issuing warnings late in his career against the emerging “New Right,” and particularly the role of conservative preachers.

“I’m frankly sick and tired of the political preachers across this country telling me as a citizen that, if I want to be a moral person, I must believe in A, B, C or D,” Goldwater said in 1981. “I am even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate.”

Goldwater also warned against packaging cultural issues, including abortion, as core conservative values. Goldwater and his wife supported Planned Parenthood, for example. Goldwater, seeing how far his party had gone in service to radical right, said in the twilight of his career that he would oppose pro-life organizations like the Moral Majority and “fight them every step of the way if they try to dictate their moral convictions to all Americans in the name of ‘conservatism.’ ”

One suspects Goldwater, the old Cold War conservative, would be appalled by the accelerating rightward trajectory of his party in 2024. It’s inconceivable Goldwater would identify with the GOP factions in the House and Senate who willingly aid and abet Vladimir Putin’s aggression against a democratic Ukraine. The cozy winks Donald Trump has repeatedly given Putin and his murderous regime would be something Goldwater would frankly be “sick and tired of.”

Goldwater’s 1964 campaign against Lyndon Johnson was dogged by the reality that the John Birch Society and the Ku Klux Klan openly embraced arguably the most conservative Republican candidate since Calvin Coolidge. Goldwater tried to distance himself from that level of extremism with mixed results, while other Republican leaders bluntly rejected the Birchers.

“Let me emphasize this with as much vigor as I can — that the John Birch Society is NOT a part of the Republican Party,” Senate Minority Leader Everett Dirksen of Illinois said in 1965. “It never was and I don’t suppose it even pretends to be.”

Dirksen was, of course, wrong.

Today, the radicals who helped diminish Goldwater’s national appeal largely run things at the GOP grassroots. The husband of the authoritarian chairperson of the Idaho Republican Party, Dorothy Moon, sits on the Birch Society’s national board. And Moon’s own politics are farther out on the political spectrum than Robert Welch, the founder of the Bircher movement, ever hoped to be.

Welch, the candymaker turned far-right radical, as his biographer Edward H. Miller has written, “was not consumed by issues of sex and religion.” But the modern party certainly is consumed by both. In legislature after legislature where Republicans are dominant, mean and punitive legislation aimed at reproductive rights, birth control and the LGBTQ population abound.

This new Republican mainstream, heavily in debt to historical Bircher extremism, doesn’t care to keep Putin, a former intelligence operative for a Communist regime, from overtaking Ukraine. But they are just fine with wacky state legislators proscribing what you read, who you can love and how and whether you can have a family. Gun restrictions are unthinkable but invading your bedroom and your doctor’s office is party policy.

For example, your individual circumstances might dictate that you need in vitro fertilization (IVF) to hope to have a baby. Good luck. The party of extremism is pretty sure you shouldn’t have that option. A new way to measure radicalism is to assess whether your state’s legislators are passing laws that are forcing physicians to leave because they fear prosecution for merely practicing their profession. Idaho has lost 22% of its OB/GYN docs since the state put draconian abortion restrictions in place. More departures seem certain.

As historian Matthew Dallek — he wrote a new history of the Birch Society — said last year: “For decades, conservative leaders tried to consign the Birchers and their intellectual heirs to the fringes of their coalition, but today’s Republicans are awash in Birch ideas. These include rampant conspiracy theories (notably about vaccines and election denialism), a penchant for isolationism, and a belief that federal law enforcement agencies are ‘the enemy of liberty,’ in the words of Rep. Matt Gaetz, R-Fla.”

As Elaina Plott Calabro noted recently in The Atlantic, a dozen years ago the Conservative Political Action Conference refused to allocate space for a Birch Society booth at its annual cattle call. The Bircher brand was just too toxic then. This year, CPAC rolled out the red carpet to the Birchers, happily embracing the latest conspiracy theories and anti-globalist message.

Where Welch campaigned against fluoride in drinking water as a Commie plot, today the cranks oppose measles vaccines and claim a new era of American isolation.

CPAC, where Ronald Reagan once preached the gospel of balanced budgets and a strong national defense, this year welcomed not only new generation Birchers but, as NBC reported, individuals openly espousing racist, anti-Semitic and anti-democratic views, while claiming that the next Jan. 6 will succeed.

“In one of the most viral moments from this year’s conference, conservative personality Jack Posobiec called for the end of democracy and a more explicitly Christian-focused government,” NBC’s Ben Goggin reported. “While Posobiec later said his statements were partly satire, many CPAC attendees embraced his and others’ invocations of the Jan. 6, 2021, insurrection.”

An earlier generation of Republican leaders saw the Birchers and others on the far-, far-right fringe as a genuine danger to the larger conservative movement. They had the courage — and the democratic instincts — to speak out and fight back. Today the fringe is the party.

And if you don’t believe them when they say they are coming for your democracy, you aren’t listening carefully.

 

Jim Weatherby

Jim Weatherby, who died on February 20, was visible for decades to many people in Idaho as the go-to “observer” or “analyst” of Idaho government and politics - probably most often on public television but elsewhere too, electronic and print, not to mention lots of panels, association events and much more.

Probably at least some of the people who watched and listened wondered: Why him? What makes his pontifications so worth our attention?

Several things did, and I can testify to them.

Jim was a friend of long standing, and I worked with him on a number of projects, including a book we wrote called Governing Idaho (published by Caxton Press). Among Jim’s other fine qualities I can list patience, because the process from outline to actual printing of that book took more than a decade. But we spent many of those hours - and before and since our work on that book - consuming lots of coffee and lunches while hashing over Idaho’s political and government activities.

His viewpoint was valuable to me as it was to other people, not least in the days when I was intensively reporting on Idaho politics. Those insights tended to be so useful partly because he came at the subject from more directions than I did.

First, the academic. He had a doctorate in political science (from the University of Idaho, and hence the frequent reference as Dr. Weatherby), and for years was on the faculty at Boise State University, but his approach was that of a methodical researcher: Understanding how things are supposed to work, whether they actually do and why they often don’t, observing and learning how people actually use this system of government. If Jim’s mindset was academic– and his thinking was appropriately rigorous –  it was not especially theoretical: It was highly practical.

That happened partly because, second, he also was a practitioner in government and politics. That tended to be glossed over in recent decades, but he lobbied for the state’s cities association and helped other groups, and was highly effective at the legislature because he understood the practice of politics.

A few years ago, after receiving a civic award, he remarked to one group, "I was a lobbyist for 15 years, and to be praised for being so kind - I was told on more than one occasion that I was too nice a guy to be a lobbyist - I took great offense at that.” His manner was so friendly, almost diffident, that you wouldn’t expect hardball from him. But he was capable of it when occasion arose.

He learned from experience, and from absorbing hardball too. On another occasion (in another book on politics he co-wrote with former legislator Mark Stubbs and myself) he talked about a bill he'd worked on as executive director of the Association of Idaho Cities relating to property tax exemptions. The bill seemed poised for passage on a Friday, but died the following Monday. Why? “Apparently there were a lot of sermons preached,” he said. “Everyone is a potential lobbyist, whether a preacher or a parishioner. It just depends on the issue.”

So he understood how the machinery is intended to work, and how it does work in practice.

And then he understood the people. He worked with an endless number of people and groups covering the spectrum of publicly-involved people around Idaho. When I wanted a sense of individual people involved in Idaho government and what they were up to and why, Jim would know.

And then, for decades, he kept refining all that, by talking with people and thinking through and delivering his well-considered takes on what was happening. Writing and presenting about a topic usually hones (not always, but it did in Jim’s case) your thinking and understanding of it. What might have sounded off-the-cuff usually had been extensively polished over time.

Like a lot of people, I always found Jim Weatherby’s observations well worth the attention paid. Kudos to him for the illumination he brought the state over so many years.

 

Immigrants

The Idaho Republican Party is doing its best to keep all immigrants out. And I don’t mean the Border Wall, Shelby Park border fight. I mean you and me.

Well, maybe not me.

You see, I am a registered Idaho Democrat. And I can’t defect. Well, I could, but it would have consequences.

Let me explain.

I have been appointed to serve on a Board that requires partisan balance. The Redistricting Commission I served on back in 2021 required I be a Democrat. We had equal, bipartisan representation. Bring your gerrymandering gripes to me.

And the Health and Welfare Board where I currently serve, requires that there be three members from the minority party, four from the majority. I’m in the minority.

So, you see, I can’t just switch party affiliation, willy nilly. I can’t try to immigrate to the party where my next idiotic legislative representatives will be chosen. No, I have to stay in this measly mess of insignificance. As an Idaho Democrat, I know my place.

But most Idaho Democrats can. And most Idaho Democrats in districts where it might make a difference just got the mailing I did.

The nondescript mass mailing came to my wife and me, both of us registered Idaho Democrats. My daughter got one too. The mailing told us how to register in the Republican Party so we might have some say in the upcoming primary election. They didn’t want to spell it out, but I will for you.

Do you insignificant Idaho Democrats want any say in who represents you in the Idaho legislature? Because, if you do, the Republican primary this May is where you will have a choice. You can support a moderate Republican, or a crazy Republican. Because your Democratic candidate ain’t got a chance come November.

That was how this county was represented for many years. I got my introduction to Idaho politics in the 1980’s and 90’s. Back then, before the Treasure Valley boomed, my county was a legislative district. When I first got elected to the legislature in 2010, I represented Latah County. But Boise boomed and we needed to combine with Benewah in 2012. Redistricting.

But Latah County had mostly Republican legislators back in the 80’s and 90’s. It was wise to vote for Republicans because they could get seniority, maybe become a committee chair, maybe get into majority leadership. You need to know that Latah County voters have been playing this partisan game for years.

Back then, voters could go to the primary election and choose a Republican ballot. Heck, I really liked some of those Republicans. And I’d vote for them. In the general. I didn’t do the primary switch.

But now that option isn’t informal. Now, if you want to vote in the Republican primary you will need to be a registered Republican. Some idiot Federal Judge decided the Idaho Republican Party’s right of free association trumped the Idaho Constitution.

Yeah. If you want to vote in the Republican primary, you have to register. That’s a public record.

Wait a minute.

The Idaho Constitution says, Article 6, Section 1:

SECRET BALLOT GUARANTEED. 

All elections by the people must be by ballot. An absolutely secret ballot is hereby guaranteed, and it shall be the duty of the legislature to enact such laws as shall carry this section into effect.

How is it an absolutely secret ballot when my registering as a Republican is public record?

Oh, well. I won’t be registering Republican for this May’s primary.

Maybe I should. Then I would get kicked off the H&W Board and I’d have standing to sue the state for not following their own constitution.

Aw heck, I like where I am. I don’t want to be no immigrant.

 

Leroy and Haley

Dave Leroy, a former Idaho lieutenant governor and attorney general, is a co-chair of Nikki Haley’s presidential campaign in Idaho. He says the former U.N. ambassador and former South Carolina governor has the credentials and “prescription” for a successful presidency.

But as Leroy sees it, Haley’s value to the Republican Party goes beyond racking up primary victories (she just lost in her home state of South Carolina), or even securing the party’s nomination.

“And you don’t have to attack Donald Trump to support her,” Leroy says. “Success for Nikki Haley is contained within three goals. She’s the nominee in waiting if Trump, for whatever reason, is unable to be on the ballot in November and she is the leading candidate for president in 2028, with a strong vision for both the nation and the party.”

A third, and the one that probably would cause the candidate to cringe, is that she would be a heck of a candidate for vice president – with Trump heading the ticket.

A vice presidential bid could be a tough one. She has described the former president as too old, “unhinged” and a certain election loser in November. It would be difficult for Haley to walk back on those comments. But in the last Democratic primary campaign, Kamala Harris talked about Joe Biden’s ties to segregationists … and look where they are. A Trump-Haley ticket wouldn’t be the first time that the seemingly improbable became possible.

“Politics make strange bedfellows,” Leroy said, chuckling. “There are two things that are almost never true in politics. One is when somebody says, ‘I’m in it to win it.’ Well, nine Republican candidates have dropped out, so that’s not true. Another is, ‘I will never pick (fill in the blank) as my running mate.’”

Leroy well remembers Ronald Reagan picking George Bush as his vice president, after Bush dismissed Reagan’s fiscal plan as “voodoo economics.” Reagan was not chummy with Bush at the time, but correctly figured that Bush gave the Republican ticket the strongest chance of winning.

According to Leroy, Haley adds strength to the party – and he hopes she stays in regardless of what happens in the Idaho Republican caucus, or Super Tuesday states.

“Nikki Haley outlasted nine competitors to be the next to last ‘man’ standing in this race, so there’s nothing wrong with continuing to the convention,” Leroy said. “If she can accumulate a sufficient number of delegates, even if it’s a minority, she can have a voice at the convention. She can have a platform and make the case for a broad-based, viable and inclusive GOP that will have a bright future. And I think she can bring the party and the country with her.”

Leroy – as a former attorney general and prosecutor -- has mixed feelings about Trump’s legal woes. “Many of these lawsuits are political prosecutions, but unfortunately, many of them also have some basis with his actions or inactions. I’m not going to predict the outcome of any of these cases, but none of these cases will be finally decided prior to the time that the votes are cast (in November).”

So far, the legal proceedings have worked in Trump’s favor. But momentum in politics can change rapidly and Republicans could look at poll numbers that show Haley beating Biden convincingly.

“Polls have consistently shown her beating Biden by 15-17 percentage points. It seems like a good bet would be on the fastest horse in the race,” he says. Polls also show that roughly 70 percent of voters do not want to see a Biden-Trump rematch. Haley, at the moment, is the only one standing in the way of that dreadful sequel.

Leroy is hoping for party unity, if that is at all possible in this political climate.

“If it’s Trump’s victory, then hooray for us. If it’s Haley’s victory, then hooray for us,” Leroy said. “We need a broad-based, viable and inclusive GOP, and she represents that, and her continued campaign gives her a role in achieving that.”

Obviously, Leroy comes from the old school of politics – where concepts such as “winning” or “unity” came into play. But for Republicans, there’s wisdom to much of what he says.

Chuck Malloy is a long-time Idaho journalist and columnist. He may be reached at ctmalloy@outlook.com

 

Un-representative

REPRESENTATIVE:  "a: Standing or acting for another through delegated authority;" "b: ...(c)onstituting a government in which the many are represented by persons chosen...by election"

It's no secret some members of the U.S. Congress are "un-representative;" they don't give two hoots in Hell about what the constituency thinks or expects from their Potomac residency.  Despite what the good folks at Merriam-Webster have to say.

That comes as no surprise.  But, never has it been so brazenly and gutlessly demonstrated as it has in the last few years.

Even the most unbiased observer would have to admit the more egregious examples of un-representative votes come from Republicans far more than Democrats.  In overwhelming numbers, folks at home - voters who elected those "un-representatives" - told them how they felt on one issue after another.  But, with a consistency rarely found in politics, the "un-representatives" - Republicans mostly - ignored them.

It's widely accepted, when considering a new President's appointees, a lot of latitude is given to the Chief Executive to have the crew he wants.  Often, this means swallowing hard because of a nominee's tenuous talents to serve in a particular post.   But this batch!  Front to back - top to bottom - monied fools whose "leadership" abilities stopped far short of the vaguest qualifications.  One, in fact, didn't know for two days after confirmation what his new job would be - believing it was to travel the world to promoting this country's oil and gas industries.  A reporter had to "'splain it" to the energy secretary.

"Un-representative" members of the Senate bellied up to the bar to approve nearly everyone that reached the Senate floor.

Idaho had to look no further than Sens. Risch and Crapo to find what voters wanted them to do didn't matter.  Neither would meet with constituents - wouldn't talk to them at district offices - wouldn't come to the phone or return emails.  In fact, neither would even make public what the public said about the list of unqualified nominees.  Finally, one clerk in Crapo's employ let slip that opposition to the Dept. Of Education chief was over 95%!  Still, you know who ol' Mike confirmed.  Yep, he went with the 5%.

In state after state - district after district - across the nation, members of Congress "holed up."  Wouldn't meet - wouldn't talk - wouldn't be interviewed - wouldn't answer mail or phones.  Some locked office doors - doors voters paid for in federal buildings we own.  It was in your face.  Our face.  Locked doors and unanswered phones.

One flat out lie came from un-Rep. Cathy McMorriss Rogers, the highest ranking woman in the GOP in the House, whose home office is in Spokane.  She told voters she'd meet but only two at a time since "the fire marshal had written her that was the most people that could be in her office at once." "Safety," you know.  Except he didn't write.  In fact, he said her office could "safely" handle 30 people.

Two reasons for this chicken-heartedness, I think.  First, lobbyists with pockets full of money.  Oil and gas people turned on all the money spigots for the EPA chief, for example.  Big bucks flooded in to D.C..  Textbook publishers and private charter school companies trucked in loads of greenbacks for the most unqualified billionaire ever to buy the Secretary of Education's job.  And so it went.  Voices of greed outweighed voices of voters and filthy lucre supplanted "the right thing to do."

Second, our un-representatives - mostly Republican - are scared to death of Trump.  Terrified of retribution - of having a primary opponent at home - of having continued employment ended.  They lack guts to do their jobs for fear they'll be violently ripped from the public trough in an act of Trump pique.

It's doubtful the dollars will stop rolling in.  So, there'll likely be that obstacle between voters and members of Congress until that Citizens United decision is eventually overturned.  But, the fear factor may soon strike the Senate.  If six or eight Republican members - enough to sway the balance of voting - decide to do what's right, Trump will cease to be an employment or career threat.  Then we may begin to see some semblance of independence.

However all that may turn out, there's a lesson here we voters must not forget.  While November is a ways off - and some members won't be up for re-election even then - we must remember who the "un-representatives" are.  We need to clearly recall, when we needed them to do the job we gave them, they didn't show up.  When we, in large numbers, needed to talk to them about what we wanted, they locked their doors and took their phones off the hook.

When we were paying them to do their jobs, others were paying them not to.

 

Tough recruitment

Every business, interest group, civic organization, legal group, education entity, government agency and living-and-breathing human being in the Gem State should take heed of the chronic shortage of experienced and competent lawyers seeking to be district judges. It has become harder each year to recruit good candidates for district court positions because of a variety of factors–low pay, high stress, burnout and the prospect of having to gain the office through a contested election. The situation will only get worse if Senate Bill 1347 is approved by the Legislature this session.

For those who may not know how Idaho’s court system is organized, there are three components. Magistrate courts, which currently have 101 magistrate judges, handle civil trials where up to $10,000 is at stake, plus domestic, traffic, estate, misdemeanor and a variety of other cases. District courts, with 49 district judges, handle the full range of felony and higher-stake civil trials. The appellate courts, with a total of 9 judges, handle and decide appeals from the two trial court components.

Candidates for magistrate judge are thoroughly vetted and appointed by regional magistrate commissions. Lawyers seeking positions on the district and appellate court are vetted by the Idaho Judicial Council, which sends a list of the best candidates to the Governor, who appoints from the list. These largely non-political appointment mechanisms have made Idaho’s court system one of the best in the nation.

Former Governor Otter reported on numerous occasions that he regularly received praise from other state governors about the high quality of Idaho’s judiciary.  Former Idaho Supreme Court Chief Justice Roger Burdick also received accolades from his counterparts in other states for the recognized excellence of Idaho judges.

To keep an excellent judiciary up and running, lawyers must be incentivized to step forward and apply for judicial positions. Most will take a pay cut of more than 50% from what they can make in private law practice for the privilege of serving as a judge. I did and I do not regret it. But, if it appears to potential applicants that the burdens of the job substantially outweigh the privilege of being able to perform public service, few would be willing to step forward. That is where Idaho is with district court positions.

Appellate positions–the Supreme Court and Court of Appeals–still have enough well-qualified applicants to fill court vacancies, despite the bargain basement compensation package. The same applies to the magistrate courts. The district courts simply don’t have enough competent, seasoned applicants to fill and replenish their ranks. That poses a serious danger to the ability of the district courts to do their work, and to the public that depends on those courts to decide cases quickly and competently.

Magistrate judge openings often get at least twice as many applicants as district judge openings because they are assured of a merit-based appointment process, the pay disparity is not substantial and magistrate judges do not have to face the prospect of an election contest. On the other hand, district judges presently have a merit-based selection process that the sponsor of Senate Bill 1347 wants to largely disable by requiring district and appellate openings to be filled through contested elections. The sponsor wants to eliminate a retirement benefit that was put in place in 2000 as a recruitment incentive for district and appellate judges, even though she would leave in place a similar recruitment incentive that was adopted for magistrate judges in 2006.

Lawyers could be excused for not wanting to apply for a district court position under such uncertainty as to job benefits and whether the benefits would be subject to future revision during their service. The failure of the Legislature to give all Idaho judges the 7% cost-of-living increase that all other state employees received in 2022 did not go unnoticed by those lawyers. But there is yet another significant consideration for district courts–the workload.  District judges have the highest-pressure job in Idaho’s court system. They deal with heavy duty felonies, like the Maybell and Kohberger murder cases, as well as complicated and high-dollar civil disputes that are litigated to the nth degree by deep-pocket parties. Handling the everyday work of managing a complex case and responding to the incessant demands of the lawyers involved takes long hours–nights and weekends, which leads to stress and burnout. Who would want to take a pay cut of more than 50% for that kind of miserable job?

Legislators should be considering measures to make all court positions more attractive to a broader range of competent, seasoned lawyers. Special emphasis should be placed on getting more applicants for district court positions, because that is where the recruitment problem has reached crisis proportions. Pursuing measures designed to discourage accomplished lawyers from applying for district court positions, where they are needed the most, does not make sense. The Stand up for Courts group, composed of Butch Otter, Patti Anne Lodge, Denton Darrington, Phil Reberger and a host of other concerned citizens, is urging that Senate Bill 1347 be stopped in its tracks in the Senate Judiciary and Rules Committee to help preserve Idaho’s excellent judiciary.

 

An open letter

An open letter to Idaho's U.S. senators, from Charles Graham of Moscow, Idaho.

Dear Senators Risch and Crapo,

You are respected lawyers and leaders in the U.S. Senate. As a former lawyer, I ask you to break your silence and speak out publicly against the ever-intensifying attacks on the integrity of our courts, judges, Department of Justice, and judicial system as a whole.

As lawyers, you know better than anyone else the vital role courts play in preserving the rule of law under the Constitution. You are in the best position to condemn the increasingly vitriolic attacks by former president Trump and others. Your silence is dangerous. It tacitly condones and legitimizes indefensible conduct, leads to unacceptable normalization of the more and more frequent physical threats to judges and prosecutors, and makes even more likely the “bedlam” Trump warns of if the courts rule against him. These attacks and threats are a danger to the nation. You should call them what they are, and call out those, including Trump, who propagate them.

You are also among those most able to speak with authority about the vital necessity of keeping the Department of Justice independent, and about the essential role of its attorneys general and special prosecutors in determining whether to seek indictments, and then of grand juries, comprised of ordinary citizens, to decide based on the evidence whether the facts justify an indictment.

There is no longer any doubt that a vindictive Mr. Trump would do his best to subvert an historically independent Justice Department and convert it to an instrument of retribution against those he thinks have wronged him and might stand in his way, including his perceived political enemies, judges, prosecutors, civil servants, and the media. These are the tools of authoritarianism. Trump openly says he will use them if he regains the presidency. You know the dangers for our democracy and the rule of law.

You may say that under our electoral process it is for the voters to repudiate Trump, to reject his efforts to appropriate for himself powers the founders would never have entrusted to the office of President. But it is you, as lawyers and lawmakers, who best understand the dangers. It is time for you to speak out with moral clarity, to denounce these attacks on the institutions of our democracy, and to place the future of this country above whatever political expediency you may think justifies your silence.