In an op-ed piece in this morning’s Idaho Statesman, Idaho Supreme Court candidate William Breck Seiniger, Jr. tried to explain why Idaho judicial candidates cannot speak openly about the issue of impartiality on Idaho’s Supreme Court or perceived flaws in existing law.
Attorney Seiniger raised a valid point that is certainly worthy of consideration, but after mentioning it, he very pointedly avoided addressing the plain-language allegation raised by Idaho Supreme Court Justice Daniel Eismann in his dissent in Nield.
In his dissent, Justice Eismann clearly and unambiguously said that the majority (Chief Justice Burdick, Justice W. Jones, and Justice J. Jones) determined what they wanted the outcome to be and then they twisted the law and/or facts to arrive at that outcome.
Supreme Court candidate Seiniger avoided any hint at how Justice Eismann’s allegation could and should be resolved. In fact, Mr. Seiniger completely avoided even suggesting that Justice Eismann’s allegation needs resolution. It does.
As we noted in our open letter to Idaho’s Congressional delegation, if justices and judges in Idaho’s courts are deciding cases by first determining the desired result and are then twisting the facts and/or law to achieve that result, then we are being denied our due process of law in the courts. Or to borrow the words used by Supreme Court candidate Seiniger in his op-ed piece, we have a, “…’compelling’ state interest in maintaining confidence in the impartiality of the judiciary.”
The Idaho Statesman reported the Eismann dissent first as news, and it has followed up with op-ed pieces by a college professor and now a candidate for the Supreme Court.
OpenCdA wonders why neither The Coeur d’Alene Press nor The Spokesman-Review have editorially weighed in with a demand for action and a solution to the allegation so clearly articulated by Justice Eismann in his Nield dissent.
If the Idaho State Police Forensic Services Laboratory alleged that some of its laboratory technicians had first determined the desired result to be achieved and then had twisted the results of the laboratory examination to fit the desired result, we are reasonably certain that even our local and regional skewspapers would be reporting it as news and commenting editorially.
So why the complete silence when an even more serious allegation of partiality is made by a Justice of the Idaho Supreme Court?
You make the mistake of assuming that the job of the local press is to inform the public of important news.
Comment by Dan Gookin — March 2, 2014 @ 10:13 am
Or–More probable than not, the “men” behind the proverbial curtains who own mainstream news media need and want to perpetuate the methods by which the Court makes decisions as Eismann described in his objection.
Comment by Old Dog — March 2, 2014 @ 11:05 am
Dan,
That was my second mistake. My first was assuming the Press/press could and wanted to differentiate between news and propaganda.
Old Dog,
We have “mainstream news media here?” Really?
Comment by Bill — March 2, 2014 @ 3:31 pm
I kind of remember that John Topp mess, Seiniger is talking about because he is/was from Bonner County. Seems like they were going to disbar him or something because he came out and spoke negatively about a judge. You can’t do that in Idaho unless you are on OpenCdA. So, that is the reason everyone is so quiet. Thus, it’s one of those instances where no one talks about it and if you are silent long enough, it will just get swept under the rug like it is supposed to. But, that rug is starting to look pretty lumpy, so bad you can’t even walk on it.
They have the Judicial Wellness Committee where judges can make anonymous calls about behaviors ect. That is a special committee so they can keep track of each other and report concerns ect in order to maintain their ‘wellness’ – I believe they have a special hotline so nothing is available to the public and it keeps our area professionals out of the loop – we pay for it, tho, by the hour. It is like special damage control for the judges. The consultation(s) are handled thru this elite doctor who lives in another state. They are all probably planning a special wellness intervention of some sort but it’s a difficult issue because Eismann probably has them all by the you know what, so they have to be very very careful. Seriously. 😉
Comment by Stebbijo — March 2, 2014 @ 5:47 pm
Stebbijo,
Both you and Mr. Seiniger touched on one of the generally accepted characteristics of a “profession.” To be recognized as a professional by whomever is doing the recognizing, the professional whatever is usually expected to adhere to a distinctive ethical code in his relationships with clients, colleagues, and the public. Almost always the professional culture relies on a formal and self-anointed and frequently self-appointed group of its members to protect the profession’s practitioners and support disciplinary criteria and actions to censure, suspend, or remove code violators. For example, states have their state bar associations to regulate attorneys. Many states have commissions on peace officer standards and training to regulate the conduct of state law enforcement officers. Idaho has both.
Professional regulatory organizations can become closed cultures populated in the majority by members of the culture. The theory of exclusion of most and sometimes all “outsiders” presumes that the profession has such a specialized body of knowledge that the quality of its administration and performance by members can only be judged by its members. That can lead to a self-protective bias which, in turn, results in confirmed violations of the profession’s ethical code being concealed from the very clients, colleagues, and public the code was intended to protect.
The question raised by those of us outside the alleged professions is this: When there is an allegation by a member of the culture (e.g., an Idaho Supreme Court Justice) or by the public that one or more other members of the culture (e.g., “judges”) have violated the profession’s ethical code, who determines if there was a violation? Once a credible allegation of violation is made, the profession’s recognition, its status as a profession, begins to deteriorate if an equally credible determination the allegation’s validity is not pursued. The results of the inquiry must be made public with sufficient context to be credible to the public.
I believe the point Mr. Seiniger has raised in his op-ed piece is that with Justice Eismann’s allegation in his Nield dissent, others already within the Idaho judicial subculture or those who want to be members of it are constrained by the profession’s ethical code from publicly discussing and addressing the alleged violation of the ethical code.
If that is his point, I disagree with it. Simply put, there is no one left in the State of Idaho who could make an objective judicial determination to either substantiate or refute Justice Eismann’s allegation. Normally that determination would be made by the Idaho Supreme Court, but four of its five Justices are too closely involved with the allegation to even remotely be considered impartial or objective.
It might be argued that Justice Eismann’s dissent was flawed in its analysis, but that would miss the point on two counts. First, Justice Horton essentially agreed with Justice Eismann’s dissent but disagreed with its delivery. Second, his analysis of the case is secondary to his allegation that three Justices of the Idaho Supreme Court did not decide Nield based on the facts and law in the record, but instead they concluded they wanted Nield to prevail so they twisted facts and/or law to enable them to arrive at that decision.
In my opinion, Justice Eismann’s allegation goes directly to the suitability of the three Justices in the majority and his own suitability to be a judge or justice in Idaho. His allegation does not challenge their legal analytical capability; it challenges their willingness to adhere to and follow Idaho’s laws and rules of procedure and evidence. If it is proven they are unwilling to do that, then they are fundamentally unsuitable to even be attorneys.
All of the Justices eventually have to stand for election. We, the people of Idaho, who are not members of the closed culture of judges can’t be expected to fulfill our responsibilities as citizens and cast an informed vote if the closed culture of attorneys, including justices and judges and judicial candidates, are required or allowed to remain opaque to scrutiny from behind the rail. That scrutiny must include an examination of every judge’s and justice’s willingness to follow Idaho law and rules of procedure and evidence.
Comment by Bill — March 3, 2014 @ 4:38 am
Bill, they don’t want informed voters in this country.
All kidding aside, I agree with your analysis. It makes perfect sense that our judges should adhere to the rules of procedure and evidence. But, they don’t. Heck, they even form special committees to change up the rules of evidence. Our legislators are seriously not worth a hoot, they waste time making laws that cannot be enforced or twisted in the event there is a “desired outcome.” It is all baloney. Infuriates me because I know I am so powerless.
I remember days when the Judicial Council phone number and address was a hidden secret. They are more transparent now, but also more careful. It was not that long ago that the Supreme Court decided to give us the right (which we already had but they ignored it) to follow the amendments to rules and offer input or even access their minutes of which they do not have to keep. I still want to know what the Legislative Review Team does. I have informed many legislators of these special committees and how they can operate without so much as a vote to usurp our laws and no one wants to go there, in fact some did not even know about these judicial committees. They do not question our judicial system, they work for them.
Our justice system needs more ‘lay person’ oversight and few people have the time to constantly monitor their antics. It’s the powerlessness that gets to a person when they know they cannot fight a corrupt judicial system. Our Supreme Court is committing their own form of ‘malpractice.’ While, we still have all of our limbs so to speak, they can and have slaughtered many of us emotionally and some financially because of their “desired outcomes.”
I really don’t know the answer but to sue … it might be worth a filing fee just to get it down on paper. Those remarks represent our deprivation of rights under color of law.
Yep, sue ’em.
Comment by Stebbijo — March 3, 2014 @ 10:53 am
Stebbijo,
I’m not sure that a private lawsuit in state court against the Idaho Supreme Court could even be undertaken, but even if it could, at this point there isn’t sufficient information available to even seriously consider it. Right now all we have is Justice Eismann’s allegation as stated in his dissenting opinion in Nield. We just don’t have enough information to adequately substantiate or refute his allegation, so it would be a step way too far to even assert there is evidence of wrongdoing.
I believe that the first step is the one which I contacted Rep. Labrador’s office to suggest and which was restated in my open letter to the four members of Idaho’s Congressional delegation.
Comment by Bill — March 3, 2014 @ 2:14 pm
I think there is evidence of wrongdoing. Justice Eismann admitted it – that is a fact and he is a Supreme Court Justice. He even said they “twist the facts” – that’s pretty black and white. He said it very clearly. I would like to know what cases he is referring to – when he/they twisted the facts and the laws.
“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.”
Labrador is an attorney, his reply will be nothing but a bunch of pretty rhetoric. However, since he is one of those judicial subculture professionals, we can expect that he will just jump on this bandwagon of reform along with Kathy Sims, Luke Malek. and Steve Vick (from our area) who are on the house/senate judicial legislative committees.
Comment by Stebbijo — March 3, 2014 @ 3:57 pm
The Idaho Code of Judicial Conduct is on the internet at:
http://www.judicialcouncil.idaho.gov/Idaho%20Code%20of%20Judicial%20Conduct.pdf
CANON 3, states:
A Judge Shall Perform the Duties of Judicial
Office Impartially and Diligently
A. Judicial Duties in General. A judge shall diligently perform
judicial duties. The judge’s judicial duties include all the duties of the
judge’s office prescribed by law.* In the performance of these duties, the
following standards apply.
D. Disciplinary Responsibilities. Judges are encouraged to bring
instances of unprofessional conduct by judges or lawyers to their attention in order to provide them opportunities to correct their errors without disciplinary proceedings; but the judges should file reports thereof with the Commission of the Idaho State Bar or with the Judicial Council, as appropriate, when no such remedial action is promptly undertaken, or if the violations are flagrant or repeated.
Commentary
Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and/or reporting the violation to the appropriate authority or other agency or body.
_____________________
Perhaps John Sowell, the reporter for the Idaho Statesman who wrote the story about the Justice Eismann’s allegation on February 16, 2014, should give consideration to asking Justice Eismann if he filed a report with the Judicial Council. If Justice Eismann did not file a report perhaps he should ask Justice Eismann why not? Perhaps another newspaper “reporter” should consider doing the same?
On the other hand perhaps, as Stebbijo seems to suggest, the local legislative members on the house/senate judicial committees should investigate the matter? Doesn’t such a committee have subpoena power?
Comment by up river — March 3, 2014 @ 4:14 pm
up river,
Isn’t any sanction recommended by the Idaho Judicial Council subject to review by the Idaho Supreme Court? Wasn’t that one of the bits of information that came out in the Bradbury case? How could the Idaho Supreme Court impartially review and decide a finding by the IJC if that finding involves four of the five Justices on the Court?
Comment by Bill — March 4, 2014 @ 8:17 pm
Question: “How could the Idaho Supreme Court impartially review and decide a finding by the IJC [Idaho Judicial Council] if that finding involves four of the five Justices on the Court?”
Initial Response: Hmm. Are you implying that “Just Trust Us” no longer applies?
Answer: Since the ‘watchdog press’ and our legislators on the judicial oversight committees seem to have adopted Officer Barbrady’s standard position of—“Ok people, move along. There’s nothing to see here.”—-I guess that all of us little and insignificant people (sheep) should relax and just get back to watching TV.
Comment by up river — March 5, 2014 @ 8:43 am
up river,
{broken record alert} I believe Justice Eismann’s allegation needs to be credibly substantiated or refuted. If the laws are to have any meaning and the courts have any credibility in resolving differences in interpretation of the laws, this has to be resolved. {/broken record alert}
Comment by Bill — March 5, 2014 @ 9:49 am