Idaho Supreme Court Eismann, Silak

The contest for an open Idaho Supreme Court seat this spring is supposed to be nonpartisan - but the race has been rife with politics and accusations of judicial activism. The contestants, whose race will be decided in the May 23 primary - not the November election - have accused each other of coming too close to partisanship.

Fourth District Judge Daniel Eismann was introduced as a potential Supreme Court candidate at a Republican fund-raiser in Idaho Falls earlier this year, setting off criticism statewide about his partisanship. Silak recently criticized Eismann after his Ada County campaign coordinator sought volunteers by e-mailing a list of local Republicans.

Incumbent Supreme Court Justice Cathy Silak is under fire, criticized as being an activist judge with rulings on water rights and schools that are now being appealed.

“Although the race is not partisan, that doesn’t mean we can’t reach out to voters. We may meet or appeal to people who identify themselves as a Democrat or Republican,” Eismann said during a Coeur d’Alene campaign stop. “I think people have the right to know what my general philosophy is. … I’m not an activist judge.” Eismann, 53, believes judges should interpret the Constitution and laws according to the intent of the drafters.

The Eismann campaign also criticized Silak, who purchased lists of names and telephone numbers from the Democratic Party in her 1994 campaign for the Supreme Court and for accepting a $550 contribution from Idaho Senate Democrats.

Both instances show justices “playing fast and loose” with requirements in the Idaho Constitution and Idaho’s Code of Judicial Conduct that say judicial candidates must remain nonpartisan, said Jim Macdonald, a University of Idaho law professor.

Eismann is member of the Veterans of Foreign Wars after serving two years in Vietnam and earning two Purple Hearts and three medals for heroism. He’s also a member of the National Rifle Association.

“I strongly feel that my judicial philosophy is what Idahoans expect and have the right to expect,” he said.

Silak, 49, said she is a strict constructionist of the law and applies that to whatever case is before her. She said she follows the precedents of the courts and the U.S. Supreme Court.

“As a member of the court, we have to be aware of the societal problems of the people of Idaho,” she said while visiting Coeur d’Alene to hear cases this spring. Silak said she has been involved in programs that help poor people get legal help, mainly in the area of family law. She was a founding member of the Idaho Coalition for Adult Literacy. She also sits on the YMCA Youth Government board of directors.

Silak was appointed to the bench in 1993 by then-Gov. Cecil Andrus. She was elected the next year after defeating Wayne Kidwell, who now sits on the bench.

Eismann was appointed as an Ada County district judge by former Gov. Phil Batt in 1995. Before that, he served as a magistrate judge in Owyhee County.

Last October, the Supreme Court issued a 3-2 majority opinion, written by Silak, that awarded the federal government the rights to all unappropriated Salmon River water flowing through three central Idaho wilderness areas.

The court agreed to reconsider the case, and a new decision is pending.

Silak said she could not comment on the case because it’s still unresolved.

Eismann said he believes in states’ rights and being careful not to give the federal government more control than it legally has. Last year, Eismann formally withdrew from a school district lawsuit against the state, accusing the court of rewriting the state constitution.

Eismann had ruled that the state was not responsible for adequate buildings, but individual school districts’ voters were to decide how much to tax themselves.

The Supreme Court disagreed and sent the case back to Eismann. That’s when he withdrew.

“I took an oath to uphold the Constitution,” Eismann said. “To follow the court’s directive I would violate my oath of office.”