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Eye on Boise: Idaho court candidate tries to distance himself from trial lawyers, despite membership, campaign contributions
His opponent in his bid for the Idaho Supreme Court, Robyn Brody, was president of the ITLA for a one-year term in 2007-08, and remains a member.
“I don’t know how being a lawyer who’s in a courtroom became a four-letter word,” Brody said. “The Republican Party celebrates Abraham Lincoln every February with their Lincoln Day dinners, and he was probably our nation’s foremost trial attorney.”
She added, “I use my trial skills to help anybody who walks in the door with a problem and the law on their side. … I am proud to be a lawyer, and I like what we do, I love what we do.”
McKenzie, in a published response to an Idaho Statesman editorial endorsing Brody, noted that the newspaper’s editorial board expressed some reluctance because of her “close ties with and support from the state’s trial lawyers,” saying, “If she wins, she can’t listen more closely to one team than the other.”
Though the Idaho Trial Lawyers Association is widely perceived in Idaho as consisting of attorneys for plaintiffs – those who sue, rather than those who are sued – its membership also includes criminal defense lawyers, prosecutors and others. The one category of lawyers the association makes clear it doesn’t represent: Anyone for whom more than half their practice consists of defending insurance carriers. They can join, but only as associate members.
Barbara Jorden, executive director of the ITLA, said, “We’re typically the ones who are representing the plaintiff, and the defendant usually has insurance, right? So the other side is usually the defense, the person who’s defending the wrongdoer.” The group’s big cause is access to courts; it opposes tort reform and immunity legislation, on grounds that they limit people’s ability to take their grievances to court.
McKenzie, in his response to the Statesman editorial, said the newspaper “curiously did not inform readers that Robyn Brody had been president of the Idaho Trial Lawyers Association, a close tie indeed.”
He also noted that he’s received endorsements from groups including the Idaho Farm Bureau, the Idaho Association of Commerce and Industry, and Idaho Chooses Life. “I am proud of such broad support from organizations rooted in Idaho agriculture, commerce, values and communities.”
McKenzie said at the time he wrote that article, he didn’t recall having ever joined the ITLA. But when he requested documentation from the group, it produced the four checks from his law firm for the four years he was a member.
Jorden said McKenzie attended the group’s annual June continuing legal education conference in Sun Valley a couple of times, and there’s a significant discount on the conference for members, which might have prompted him to sign up at that point. But he then continued sending membership checks for the next three years.
McKenzie said the membership checks were signed by his ex-wife, who at the time was still married to him and was handling accounting for his law firm.
McKenzie noted that he debated in favor of and voted for a 2003 tort reform bill that the ITLA opposed. He also suggested they opposed two gun-rights bills he sponsored, including his successful guns-on-campus legislation that allowed concealed weapons on Idaho public college campuses for those with certain permits, over objections from the colleges. But Jorden said the group has no position on gun rights; it objected to a legal-immunity clause in the guns-on-campus bill and asked McKenzie to remove it. He declined.
McKenzie’s Senate campaigns received $4,950 in campaign contributions from the ITLA’s political action committee from 2002 to 2014, including $2,000 in 2012 and $1,000 in 2014.
“If they want to support me as a candidate, knowing the positions that I’ve taken, I’m happy. I was happy to take those contributions,” McKenzie said. “It didn’t affect how I voted on anything. But I wouldn’t refuse the contribution from the organization.”
The ITLA hasn’t endorsed either candidate in the Idaho Supreme Court race, noting on its website, “We are proud to say each of these candidates has been a member of the Idaho Trial Lawyers Association. Their commitment to our organization’s values and goals is greatly appreciated.” It wished both candidates luck.
McKenzie operates a private law practice in Boise that includes criminal defense, civil litigation, parole representation, wills and estate planning and business counseling.
Brody, who operates her own private law practice in Rupert, said the ITLA is a valuable resource for “small-town lawyers like myself, who’ve got a very diverse practice.” The group’s networking helps the lawyers share research and resources, she said. “It’s like having a virtual law firm.”
Jorden said, “Our mission is to make better lawyers and maintain access to justice. … Most lawyers actually are trial lawyers.”
About that obscure amendment …
I’ve had some questions from readers about HJR 5, the constitutional amendment on Idaho’s November ballot, noting that the issue is obscure and the ballot explanations complex. Here’s a simple explanation:
Currently, all administrative rules issued by state agencies are reviewed by the Legislature; they can accept them or reject them. This would enshrine the Legislature’s right to do this in the state constitution and not let the governor have any veto power over any rules rejections. He doesn’t now. So, if this passed, what would change? Nothing.
The Legislature’s right to do this is established in state law, upheld by a decision of the Idaho Supreme Court. Legislators think it’s an important enough privilege of theirs over the executive branch that they want to put it in the constitution, so no future court could disagree. Opponents say the courts are best equipped to say which powers each branch of government has, and that the legislative branch is attempting to unduly increase its constitutional power at the expense of the executive branch.
This same amendment, with some different wording, was on the ballot in 2014, then called HJR 2, and the voters rejected it, 50.6 percent to 49.4 percent. HJR 2 passed both houses of the Legislature unanimously in 2014. HJR 5 passed the House this year 62-3 and the Senate 34-1; opponents argued that the voters already had spoken.
To amend Idaho’s constitution, a change must receive two-thirds support in each house of the Legislature, plus a majority vote of the people at the next general election.