Case points out judge’s dual role

By law, justice leading council also reviews it

BOISE – A bitter dispute between a crusading, reformist judge and Idaho’s judicial establishment is shining light on a little-noticed quirk: Idaho is the only state where, by law, the same person who chairs the council that disciplines judges presides over the Supreme Court’s review of that council’s actions.

“This is the organization whose job it is to ensure that judges do the right thing,” said District Judge John Bradbury, who faces possible removal from his elected judgeship over a residency dispute in a case now pending before the Supreme Court. “I just think if there’s a dispute between the fox and the chicken, the fox shouldn’t be one of the judges.”

Idaho Supreme Court Chief Justice Daniel Eismann, who both chairs the Idaho Judicial Council and presided over the high court when it heard attorneys’ arguments for both the council and Bradbury, said, “I would personally prefer it not to be set up that way. … I wouldn’t sit if I sat on a case in the judicial council and then had it brought up here. I just wouldn’t do it.”

Eismann missed the council’s formal hearing on Bradbury’s discipline case in December 2008 because he was in the hospital. But he has chaired the council since six weeks before it reopened a residency complaint against Bradbury in 2007, through its investigation of where Bradbury lives (he has two homes) and its decision to file formal charges against him.

Eismann said the system probably needs some refinement. “We’re going to be looking at our rules and seeing what needs to be changed to bring clarity.”

Bradbury sued Idaho’s Supreme Court justices in federal court, charging that the justices are violating his constitutional rights. Though a federal judge declined to issue a temporary restraining order against the justices, the federal case is pending, with a hearing set for late September.

Now, well after Eismann presided over and participated in the oral arguments at the Idaho Supreme Court, the chief justice has recused himself from participating in the decision on Bradbury’s case – but not because of the chief justice’s dual role. In a recusal notice filed with the court, Eismann accused Bradbury of using that question in the federal lawsuit to get at a key piece of information that the Idaho Judicial Council refuses to release: the identity of Bradbury’s accuser in the ethics case.

“The only reason for obtaining that information would be retaliation,” the chief justice wrote in his recusal order. That, he wrote, “could have a chilling effect on others who may desire to report possible violations of the law by members of the judiciary.” So Eismann essentially said he recused himself to remove the basis for the federal lawsuit. Eismann wouldn’t comment on the pending case and said his recusal notice speaks for itself.

Bradbury was incensed by Eismann’s retaliation allegation and said he’s never sought retribution against anyone. “By asserting the pretext of retribution, Justice Eismann also betrays a profound personal animus against me,” Bradbury declared.

Though the Idaho Judicial Council received 121 complaints against judges in 2008, it’s rare for judicial discipline cases to reach the Supreme Court. Only one previous case has been recorded since the council was formed in 1967. Bob Huntley, one of the original members of the Idaho Judicial Council, who served there 14 years and later served on the state Supreme Court, said there was a good reason to put the chief justice in charge of the council.

“You needed somebody chairing this thing who has an overall view of the whole working of the judicial system,” he said. “I guess you could say it’s an additional protection for the judiciary that the judicial council doesn’t run wild.”

But Huntley said he assumed the justice would disqualify himself from proceedings reviewing the council’s actions. “There’s an automatic perception of conflict when he has a loyalty to both bodies,” he said.

James Lynch, who was secretary of the Idaho State Bar in 1967 and chairman of the bar’s court reform committee, said he didn’t remember any discussion about the chief justice’s dual role. “The odds are nobody sat around and actually did a what-if analysis of that, just candidly,” he said.

Peter Joy, a law professor at Washington University in St. Louis and an expert on legal and judicial ethics, said, “It gives at least the appearance of something being improper – that the chief justice is in a situation of presiding over the body that’s going to review the chief justice’s own work. … Just for appearance’s sake, it would be better not to put the chief justice in that position.”

Keith Roark, the attorney representing the Idaho Judicial Council on the Bradbury case, filed a motion with the Idaho Supreme Court last week asking Eismann to reverse his decision to recuse himself. He noted that Bradbury waited until after the oral arguments to file a formal motion asking Eismann to disqualify himself.

“By filing the motion in such a cynically calculated and untimely manner, Judge Bradbury and his counsel have deprived the Idaho Judicial Council and its counsel of the opportunity to have this matter heard and decided by a five-member court,” Roark wrote.

Eismann, however, said, “There’d just be one fewer justice involved, unless there was a 2-2 split and they wanted another justice, so then somebody else would be appointed.”

Eismann said that since he’s chaired the judicial council, he’s tried to play a “low-key” role, merely serving as a resource for the other council members. “I don’t want to be perceived that I’m out there to defend things that may be done wrong by judges,” he said. “So I have tried to not make much comment at all when the council’s considering things.”

Said Eismann, “If we feel that we need a watchdog on judges, it would be best if that entity were viewed as independent of the judiciary, is the way I view it.”

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