Testy high court race sparks ethics dispute

BOISE - The contested race for a seat on the Idaho Supreme Court this year has turned testy, with challenger Breck Seiniger raising an ethical issue about second-term Justice Joel Horton regarding a 2008 case. The justice dismisses it as nothing but a personal attack, but a national judicial ethics expert says it’s a legitimate question and in his view, the judge should have disqualified himself in the case. “I think it’s a fair point for an opponent in an election to call out,” said Charles Geyh, a law professor at Indiana University and an expert on judicial disqualification and ethics for judges. “Is the idea that one time, six years ago, he had a lapse – should that get him out of a job? No, by itself, no.” But it’s among the factors that voters should consider, he said. The case involved a group of asparagus farmers who sued Simplot Corp., a major force in agriculture in Idaho, after they hired Simplot to spray their asparagus, and the asparagus, a 15-year-crop, died. A jury awarded the farmers $2.4 million, and found Simplot 85 percent responsible, and a subcontractor that Simplot hired to do the spraying 15 percent responsible. Then, Simplot brought forward new evidence: A major purchaser of asparagus had signed a contract with farmers in Peru, and as a result the major processing plant in the region was closing. This was five years after the spraying incident, but Simplot argued it affected the future value of the ruined asparagus crop. The judge ordered a new trial solely on the issue of future economic damages. The farmers appealed to the Idaho Supreme Court, which upheld the lower-court ruling, but expanded the new trial to be on all damages, not just future economic damages. The tapped-out farmers began preparing for a new trial, but then cut their losses and settled with Simplot. Their attorney filed a motion for reconsideration with the Idaho Supreme Court, citing three issues; one of them was that Horton, the author of the Supreme Court’s opinion, was running for re-election and had named as his campaign treasurer the associate general counsel for Simplot Corp., Dave Spurling. This occurred after the court heard the case, but before the written opinion was issued. The Supreme Court rejected the motion for reconsideration without comment. “Dave was my treasurer because he was my moot court partner in law school, not because of where he happened to work at the time,” Horton said. “That’s really where we got to know each other. We’ve been friends ever since.” Horton says the court made its unanimous decision on the asparagus farmers’ case shortly after the arguments in February of that year, at a time when he didn’t even know he’d be challenged in the election. He named his campaign treasurer in March. The opinion issued in May. “Things get decided well in advance of release of opinions,” he said. “When I’m talking with attorneys, I frequently don’t know whether our opinions have been released or whether they’re just sitting in the chute waiting to come on out.” But Geyh, the national expert, said the average person has no way of knowing that. “You should be mindful of the perception that you create,” he said. “The codes of conduct are very, very clear about the importance of judges keeping track of what public perceptions of them are,” said Geyh, the author of numerous books and articles on judicial ethics and director of the Judicial Disqualification Project for the American Bar Association. “He wasn’t thinking about it. Well, maybe the message is that he should have been. And I don’t think that it’s unfair of his opponent to call this out.” Seiniger’s broadsides against Horton on the issue have included campaign ads highlighting “The Simplot Connection,” and charges that Horton’s opinion ruled “in favor of Simplot.” Horton counters that the Supreme Court ruled against Simplot – upholding the lower-court verdict finding the firm responsible, as well as the lower-court judge’s decision to grant a new trial on damages. “We essentially affirmed the trial court in every aspect except one minor footnote,” Horton said. “When a trial court grants a new trial on damages, all the damages that are properly considerable ought to be in front of a jury.” Seiniger counters, “What I’m saying is it’s improper to sit on the case. Fine, let’s say I have some of the facts wrong. What I don’t have wrong is the fact that he stayed on the case, and he appointed one of their lawyers as his campaign treasurer at a time when it was completely inappropriate.” Spurling wasn’t the lawyer who represented Simplot in the farmers’ case, Obendorf and Gray v. Terra Hug Spray Co. and J.R. Simplot Co. “I don’t think the judge is being corrupt,” Geyh said. “I have no reason to doubt Justice Horton that the deal was done and he was writing the opinion. … But in terms of whether someone should be mindful of the perception problems he creates, it strikes me as just a little cavalier, in the middle of a case where you’ve got the livelihood of local farmers hanging in the balance and a corporate defendant looking for relief.” Seiniger has focused on the Obendorf case to argue that Idaho’s Supreme Court is out of balance, favoring the powerful over the little guy. “I have a persona and perspective that has been forged in the fires of advocacy and in particular, advocacy on behalf of people with very limited resources,” said Seiniger, 66, a longtime attorney in Boise whose website boasts “a proven track record of multimillion-dollar verdicts and settlements spanning 30 years of practice.” “Increasingly in our system, the system is structured so that it works great for people with more or less bottomless resources,” Seiniger said, “but it doesn’t work well for people who have very few resources.” Horton counters, “It’s quite clear to me when my opponent is talking about restoring balance to the court, he wants to tilt the scales of justice … in favor of one class of litigants that appear before the court.” He said it’s the court’s job to weigh the issues of law, regardless of who’s in the case. Horton, 54, is a former prosecutor who spent 13 years as a lower-court judge before joining the Supreme Court in 2007; he narrowly won re-election in 2008. He’s largely stayed out of the headlines throughout his career, and has high-profile, bipartisan support for his re-election bid. Seiniger has also pointed to an Idaho Supreme Court decision in a medical negligence case, Nield v. Pocatello Health Services, in which the justices sharply disputed each other in conflicting opinions, with Justice Daniel Eismann questioning the motives of the majority and Justice Warren Jones calling Eismann’s comments “more suited to a schoolyard argument among teenagers than should be expected in a judicial opinion.” The Nield opinion drew national attention for the rare rancor it showed among Idaho’s justices. But Horton wrote his own dissent, agreeing with Eismann on the legal arguments while disavowing all the nastiness. “The case wasn’t raised to indict Justice Horton,” Seiniger said. “The case was raised primarily to illustrate the fact that I think we need new blood on the court.” Horton said the Nield case was “really just a one-off situation,” and said, “We really are past it. Which is good. Because this job can be really difficult if there were personality conflicts on an ongoing basis.” Horton said the issue in Nield was the same as that in the farmers’ case: How much discretion to yield to a lower-court judge in an appeal. “It’s just an underlying philosophical question as to the role of appellate judges in reviewing what are essentially judgment calls or exercise of discretion by trial judges,” Horton said. The reason the court was unanimous in the farmers’ case, he said, is the standard of review for the appeal dictated that “if the trial court acts within the boundaries of its discretion and consistent with the governing legal standards, and if the judge does so by an exercise of reason, we’re supposed to affirm. … It’s a judgment call that the trial court made. And under the way we approach deciding appeals from those judgment calls, the decision was really almost foregone.” Idaho’s primary election is May 20; it will be the final vote in the nonpartisan Supreme Court justice race.