For the first time in 30 years Idaho residents - not a panel of judges and lawyers - will decide who sits on the Supreme Court.
The May primary election marks the first time in decades there will be a contested election for an open seat on the Idaho Supreme Court.
Justice Byron Johnson is retiring when his six-year term expires in January. Justices often have left office or retired in the middle of their term. That allowed a judicial council to screen applicants and select candidates to present to the governor. The governor would then appoint the new justice, by-passing a popular vote.
Johnson, 61, decided not to take that route and instead let the public decide who replaces him. The move has created a bit of an uproar among legal experts.
“There is a division of opinion about it among lawyers,” said Boise attorney and Boise city councilman Mike Wetherell. “Some think it’s a great thing to happen every now and then. Others feel it’s horrible, and we shouldn’t have this situation of potential judges out campaigning and raising funds.”
Some fear there will be a temptation to favor campaign contributors when issuing rulings from the bench, he said.
Wetherell supports Justice Johnson’s departure from the status quo, mainly because he’s running for Johnson’s job. Wetherell was one of the first to announce his candidacy and actively campaign for the Supreme Court. Another Boise lawyer, Wayne Kidwell, has also announced, and Judge Lowell Castleton of Preston is expected to join the race.
Wetherell made stops in Bonners Ferry and Sandpoint on Monday to kick off the unusual campaign. The last contested race for a Supreme Court seat was in 1968. Of the 48 justices who have served in Idaho, 22 were elected and the other 26 appointed, according to Johnson.
“We’ve been lulled into a sense there is a tradition that justices are appointed. In fact, the tradition is justices have historically been elected almost as frequently as appointed,” Justice Johnson said.
From 1890 to 1968, electing justices was the norm. That’s a longer-standing tradition than three decades of appointing court members, he added.
“I took an oath when elected to office to support the constitution. The constitution says justices are elected unless there is a vacancy during their term,” he said.
Johnson was appointed to serve the remainder of Justice Charles Donaldson’s term. He was then elected in an uncontested race in 1992.
The election process has been criticized as being a mere popularity contest because the general public understands little about the qualifications needed to hold a Supreme Court seat. But Wetherell said some attorneys consider the judicial council appointments “more of popularity contest than an evaluation” of a candidate’s credentials.
The Supreme Court race is non-partisan. Candidates are barred from making disparaging remarks about judges and typically do not state their positions on such issues as capital punishment and abortion.
Wetherell touts his broad background and 25 years of experience as an attorney. He served a stint as chief counsel for former Idaho senator Frank Church. He’s also published a book and handled many cases dealing with worker’s compensation laws.
About 20 percent of the Supreme Court’s workload deals with worker’s compensation issues, he said. Currently there is no justice on the court with practical experience in that field, he said.
Wetherell already has an impressive list of lawyers backing his campaign. His issues include continuing to allow cameras in the courtrooms, alternative sentencing for juveniles and helping keep judges based in rural communities.
“There should be regular contact between the public and judiciary,” he said. “A judge shouldn’t ride into town once a month.”
, DataTimes MEMO: This sidebar appeared with the story: PAST The last contested race for an Idaho Supreme Court seat was in 1968.