BOISE – With Idaho Supreme Court Justice Daniel Eismann planning to retire in August, a second seat will open on the five-member high court in a year – and this time, unlike the last one, it won’t be an open, all-comers election that makes the pick.
Instead, the timing – 16 months before the expiration of Eismann’s current six-year term – will allow the Idaho Judicial Council to solicit applications, vet and interview hopefuls, and recommend up to four finalists to the governor for appointment. It’s the same pattern that most Idaho Supreme Court vacancies have followed in recent decades – justices step down before the end of their terms, allowing the state’s merit process to pick their replacement. Then, the new justice runs as an incumbent in the next election.
Bucking that trend was former Idaho Supreme Court Justice Jim Jones, whose decision last year to finish out his term before retiring after 12 years on the court led to a four-way race for the seat last May, followed by a November runoff that was won by Justice Robyn Brody, the first woman on the court in 10 years.
“I would never have been on the court if the only avenue was to go through the Judicial Council and be appointed by the governor,” said Jones, 74, who was twice elected Idaho attorney general. “It just didn’t even occur to me as a possibility, because if you’ve been involved in the political arena, you probably at one time or another have stepped on the toes of whoever ends up being governor. … I didn’t necessarily want to put my fate in the hands of some gubernatorial appointer who would harbor ill feelings.”
Jones ran unopposed for the court in 2004, and was re-elected, again without opposition, in 2010.
Eismann first joined the high court in 2001, after successfully running against and defeating an incumbent justice, Justice Cathy Silak. It was the first time in 68 years that a sitting Idaho Supreme Court justice had been defeated in an election. Eismann, then a district judge in Ada County, aroused controversy by announcing his candidacy at a Republican Party event in eastern Idaho and completing interest group questionnaires about his views. It happened at a time when Silak, who was appointed by Democratic Gov. Cecil Andrus in 1993 and won election in 1994, was under fire for her ruling in a controversial water case.
Idaho Supreme Court positions have been nonpartisan since 1933.
One of the most outspoken justices, Eismann is known for his tough questioning of attorneys who appear before the court. He was re-elected without opposition in 2006 and 2012, and served four years as chief justice.
Eismann has distinguished himself with his push for drug courts and other specialty courts in Idaho, which he helped launch as a district judge in Ada County in 1999. He has chaired the statewide Drug Court and Mental Health Court Coordinating Committee since its inception in 2001. In 2009, he won national recognition for his work in the field and was named to the National Association of Drug Court Professionals’ hall of fame.
“He was an initiator of the drug court concept,” Jones said. “He exercised a good deal of leadership.”
Jones said he sometimes disagreed with Eismann, “but it was always in good faith. I think that he always articulated his position clearly and it was grounded in good law. … He made a real contribution to Idaho jurisprudence.”
Current Chief Justice Roger Burdick said Eismann is thoughtful, dedicated and intellectual.
“We will miss Justice Eismann’s keen intellect and considerable contributions to the Idaho Supreme Court, to the state’s jurisprudence, and to the people of Idaho.”
Of all the current justices on the five-member court, only Eismann and Brody first joined the court through elections. The other three first were appointed, then won election when their initial terms expired.
When former Justice Linda Copple Trout retired in 2007 after 15 years on the court, including two terms as chief justice, she intentionally stepped down before the end of her term to allow the Judicial Council to name her successor. Former Chief Justice Gerald Schroder did the same, the same year. Trout said at the time that her decision was driven in part by a nasty re-election campaign in 2002 in which she was targeted in a last-minute TV attack ad by an independent group. The same thing had happened to Silak two years earlier when she was being challenged by Eismann.
“The attacks from outside sources were very unfair and untrue,” Trout said.
Jones called the contentious campaign that Trout went through “unfortunate,” and said he was sorry to see it play into her decision to retire, because “she was just an absolute asset to the court.”
“I think for the most part, the appointment process is somewhat preferable,” Jones said, “but I think there needs to be another mechanism for how people can get on the court.”
He doesn’t regret his decision to throw his seat open to election, though he had praised the qualifications of some of the candidates who didn’t make it through to the runoff. Jones was a little surprised initially when six candidates filed for the seat; two subsequently withdrew.
“There were times when I had some misgivings along the way, but for the most part I think it worked out fine, and the voters probably did a pretty good job in how they fashioned the outcome,” he said.
Eismann, 70, had no comment on the timing of his retirement. A decorated Vietnam combat veteran, he’s faced serious health issues during his years on the court, including a serious bout with cancer related to exposure to Agent Orange.
“It has been my distinct honor and privilege to serve the great state of Idaho and its citizens,” Eismann said in a prepared statement. “Throughout my career, I have been fortunate to work alongside some of the most dedicated servants to our state and communities. I am proud of all that has been accomplished in the Idaho courts and wish my colleagues the best as they continue to serve all Idahoans.”
The Idaho Judicial Council, which has already received 12 applications for a pending opening on the Idaho Court of Appeals, the state’s second-highest court, is taking applications for Eismann’s seat through May 10. It plans to interview the candidates in July. The new justice would take office at the end of August, when Eismann retires, and then be up for election for a full six-year term, starting Jan. 1, 2019, in the May 2018 Idaho election.
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