It isn’t unusual for an appeals court justice to depart from one or more of his fellow justices on any particular decision. Often the dissenting justice simply votes differently from them. Sometimes, to explain his dissent he will write a dissenting opinion that appears for publication with the decision.
It is quite unusual, however, for a dissenting justice of the Idaho Supreme Court to introduce his 34-page written dissent with the words, “Courts decide cases in one of two ways: (a) they apply the law to the facts and thereby arrive at the result or (b) they determine the desired result and then twist the law and/or the facts to justify it.”
According to Idaho Supreme Court Justice Daniel Eismann, three of his fellow justices took the (b) road in deciding how to rule in Judy Nield v. Pocatello Health Services, released February 14, 2014.
The Idaho Statesman newspaper first reported this on Feburary 16, 2014, in a story headlined Idaho Supreme Court Justice Daniel T. Eismann at odds with three of his colleagues.
Justice Eismann’s dissent begins on page 24 of the decision in Judy Nield v. Pocatello Health Services.
The entire case is highly technical, but it is not necessary for readers to fully grasp the facts or the law in the case in order to understand the tenor of Justice Eismann’s very detailed dissenting opinion.
Idaho courts seem to pretty much follow the plain meaning rule in statutory construction. That general rule says that statutes are to be interpreted using the ordinary meaning of the language of the statute unless the wording is ambiguous on its face or its interpretation would be patently absurd. The courts presume the Legislature meant to say exactly what it said in writing the statute.
Applying that plain meaning rule softly to Justice Eismann’s opening: “Courts decide cases in one of two ways:…”, OpenCdA observes that Justice Eismann does not seem to limit his dissent to just the Nield decision. “Courts,” plural, suggests that Justice Eismann may have perceived or directly observed the “either – or” behavior exhibited in a substantial number of court cases. Ideally, all courts would decide cases by applying the law to the facts and thereby arrive at the results.
Justice Eismann’s observation, “… or they determine the desired result and then twist the law and/or the facts to justify it” is a refreshing albeit caustic confirmation of what OpenCdA has observed in some courtrooms and in the decisions emanating from the judges presiding.
There will be some who wonder if Justice Eismann’s blunt dissent in Nield somehow violates the Idaho Code of Judicial Conduct. We suppose the final determination on that would be left to the highly political appointees on the Idaho Judicial Council. But from a purely layman’s perspective, we think Justice Eismann may have been trying to achieve what Canon 1 of the Code desires — an independent judiciary. The commentary accompanying Canon 1 says:
“… acting without fear or favor.” Acting without fear [of retaliation at the next election] or favor [assured support in the next election]. Words that not only judges and justices but also prosecutors should abide by in Idaho.
In other words, courts can decide cases (a) according to the law or (b) according to the way things are usually done in Idaho.
Comment by Dan Gookin — February 17, 2014 @ 8:50 am
Dan,
Well, there are some district court judges who seem to do their best in deciding cases by applying the law to the facts and thereby arriving at the result.
My own opinion and observation is that the closer a district court judge is to deserving the label “dead-ender”, meaning his judicial career can and should go no higher or further than the county seat, the more likely he is to choose (b) rather than (a) in those cases that may affect his reelection by voters in the next election.
On the other hand, good judges welcome controversial and technically difficult and challenging cases, because it keeps them sharp and gives them a chance to demonstrate to the public just how fair, wise, and independent the judiciary can be. That’s what inspires public confidence not only in the judges but in the entire justice system.
Comment by Bill — February 17, 2014 @ 9:17 am
Justice Eismann’s public and official allegation literally shakes the foundation of Idaho’s legal system. His allegation cannot be ignored. It cannot be written off as a ‘spat’ between Justices. Justice Eismann’s allegation is the most serious charge that can be made under our system of law because it is made against the persons who have the ultimate authority, and attendant responsibility and duty, to decide the law. It is inconceivable to me how anyone interested in justice and adherence to law can ignore J. Eismann’s allegation. If Justice Eismann’s allegation is true, the guilty members of the Court have forsaken their sacred duty to Idaho’s citizens.
I personally believe that Justice Eismann has the absolute duty to either (1) Publicly apologize to the Justices and all Idaho citizens for lying and immediately resign from the Court, or (2) Publicly demand that the guilty Justices resign immediately and, if they refuse to resign, publicly demand that the Idaho Judicial Council and the Idaho Legislature take immediate action to force their removal from the Court. It is inconceivable to me how anyone can profess to have any respect for, or confidence in, the Idaho Supreme Court until either the guilty Justices are removed from the Court or Justice Eismann publicly apologizes for lying and resigns from the Court.
Comment by up river — February 17, 2014 @ 2:59 pm
up river,
Given the gravity of the allegation in Justice Eismann’s dissent, I would have expected a huge uproar from the Idaho skewsmedia. If Justice Eismann’s allegation — that judges and justices in Idaho’s courts (not limited to the Black Robed Boys of Boise) have twisted law and fact to achieve a desired outcome — is proven, the right of many Idaho citizens to due process of law has been denied. How can citizens have any confidence in any judge at any level anywhere in Idaho that their case’s outcome may have been determined by law and evidence and not by the business or political interests of some third party?
The articles attributed to the AP in the Press and the Twin Falls Times-News were knockoffs of the Statesman’s article.
But what about The Spokesman-Review? Why didn’t our alleged regional skewspaper with intrepid reporter Betsy Russell run even the knockoff? Could it be that The Spokesman-Review has a teensy-weensy conflict here which made it politically touchy for Russell to do any original reporting? Could be. Russell serves on the Supreme Court’s Media/Courts Committee with Justices Burdick and Eismann. She also serves on the Rule 32 Committee with Justices Jim Jones and Supreme Court Clerk Steve Kenyon. And as noted in a link in my post, Coeur d’Alene Joel Hazel serves as the Secretary-Treasurer of the Idaho Judicial Council. Hazel has also represented The Spokesman-Review as an attorney in First Amendment cases. Cozy down in Boise, isn’t it?
Before anyone is forced to resign from the Idaho Supreme Court, I would very much like to see an investigation to determine the factual and motivational basis for Justice Eismann’s allegation. If Idaho’s court system has been corrupted to the point that private citizens are being denied some of their federal and state Constitutional rights by the actions of various judges, that to me is far more serious and more deserving of harsh punishment that just one skewspaper article and some meaningless coverup wristslap by some politically appointed Council or resignation from a court and return to a lucrative private law practice.
Comment by Bill — February 17, 2014 @ 4:56 pm
Yes, this is a pretty good one. However, Justice Eismann pretty much confirms what many of us already know, their (Idaho Judges) cases are ‘pre-meditated’ decisions. I gotta give him credit, tho … he wrote it. That Betsy Russell thingy is bound to get in the way someday at sometime .. not to mention Joel Hazel who is also on the media committee with Betsy … what an absolute mess, and Supreme Court Justice Burdick should fix it. We do not need a judicial media/court committee, it is a huge web of conflict and bias. We have the Idaho Press Club and the IDOG, Idahoans for Openness in Government (that is Betsy Russell, etal too). And, they were just starting to get boring…heck, while they are all at it, lets throw in Karlene Behringer from our area, too – she is the Trial Court Administrator and sits on the Administrative Committee – why she is on a media/courts is beyond me. I guess, they must all call each other and discuss what needs to go in the paper or not and the story line that goes with it.
Comment by Stebbijo — February 17, 2014 @ 7:05 pm
I wouldn’t expect the “forced to resign” option to come into play until after Justice Eismann either (1) Publicly apologizes to the Justices and all Idaho citizens for lying and immediately resign from the Court, or (2) publicly demand that the guilty Justices resign immediately. If 1 or 2 were to occur it would seem to me there is no reason to go to the forcing option. Anyone care to venture a guess as to the percentage chance that either 1 or 2 will occur? As for an ‘investigation’, well, to paraphrase Buddy Holly, “that’ll be the day.”
Comment by up river — February 18, 2014 @ 1:45 pm
Well, Judge Eismann’s opinion is very unique,candid, and bold, that is for certain. I was hoping to read more somewhere on his remark. I was thinking if I were an attorney (I am empathetic) and my case did not go as planned, could I call Justice Eismann as an expert witness, especially if I suspected manipulation in the interpretation of the law and maybe some favoritism and bias concerning the case? Why not? Could I disqualify a judge based on his opinion that reflects the judges in this state? It’s not frivolous to use a Supreme Court case and a remark from the Supreme Court Justice, I would think. We have all sorts of ‘experts’ out there with an opinion, why not a judge on judges? I have a feeling no one is going to force/request that this Supreme Court Justice resign. The plan will be to bury the story, then work on getting him respectfully out the door and probably call him crazy or something,(on the inside of course.) The public will never know anything else. I hope he spills the beans (it’s okay to dream) … all of them, you know there is a pot full of them.
Comment by Stebbijo — February 18, 2014 @ 6:54 pm
Stebbijo,
The allegation explicit in Justice Eismann’s opening paragraph of his dissent is that “courts,” meaning judges and justices, predetermine the outcome of any particular case and then twist the facts and law to fit their desired outcome. In other words, Justice Eismann has alleged that some judges and justices in Idaho rig cases. How that can not generate a civil rights investigation by the US Department of Justice is beyond me. If Justice Eismann’s allegation can be substantiated, it means that some Idaho judges and justices have been denying the right to due process of law to selected Idaho citizens. Justice Eismann is a credible and respected jurist. The citizens of Idaho are entitled to an impartial investigation of the facts to either substantiate or refute Justice Eismann’s allegation.
Comment by Bill — February 18, 2014 @ 7:33 pm
Councilman Gookin,
When you wrote, “In other words, courts can decide cases (a) according to the law or (b) according to the way things are usually done in Idaho” can just as easily be applied to the City’s own Planning Commission; especially since they do have quasi-judicial authority related to who gets to develop what and where. It doesn’t take too long of reviewing P&Z hearings to realize they don’t even know the legal “criteria for approval” let alone follow procedures that are specified in City Code or Idaho Statute.
It’s really easy to glom-on to the anti-big Boise problems, but I would prefer you watch and attempt to correct what is happening in you own appointed court. Yes, I get a little snipey after 9:00 or so, but, its been a really, really long time since I witnessed the Planning Commission follow the City’s rules, rather, what is more and more apparent it that their decisions fall into the (B) category–according to the way things are done in CDA.
If you would like specific evidence with citations, I’d be glad to provide them upon request.
Comment by Old Dog — February 18, 2014 @ 11:49 pm
I have commented before on this subject of planning commissions. It appears that the Coeur d’ Alene Planning Commission needs to be re-invigorated. I would suggest the Mayor to take a good hard look at their commitment to and education in this assignment and their support by the planning staff. I has been a very long time since the Coeur d’ Alene Planning Commission has been tasked to do superior work in land use decisions, for city council deliberations and for the people of the city. From what I am reading and hearing, It’s pretty darned sloppy on that podium.
Comment by Steve Badraun — February 21, 2014 @ 12:08 pm
Oh, Old Dog, you don’t need to remind me. This isn’t the proper venue to discuss it, but if you’d like to send me a message, my email is dan@gookin.com
Comment by Dan Gookin — February 21, 2014 @ 3:34 pm
[Relocated to this post]
Old Dog, I attended the Port of Hope hearing and continuation hearing. I left both dismayed. Rather than go into detail about the hearing, I would direct you to Bill Mc Crory’s post on this issue.
Planning Commission meetings and staff reports certainly changed when Jean De Barberis moved to Florida.
Comment by Susie Snedaker — February 21, 2014 @ 5:23 pm
Comment by Bill — February 22, 2014 @ 6:54 am
Dan,
Agreed on venue, I’ll send you a synopsis of a recent approval by P&Z which exemplifies my point.
Thanks.
Comment by Old Dog — February 23, 2014 @ 11:36 am