From the October 2005 Idaho Observer:

CDA meeting reveals need for judicial accountability

Conflicts of interest abound in Idaho’s current judge-judging process

COEUR D’ALENE—Citizens gathered October 5, 2005, to hear about the Idaho Judicial Accountability Act (IJAA.) The meeting was hosted by IJAA sponsors Rose Johnson of Hauser and Norma Batt of Caldwell. Johnson presented the Idaho Judicial Accountability Act of 2006 (IJAA) and responded to citizens’ questions.

IJAA is a citizen initiative law being proposed for the November 2006 general election. If passed, IJAA would create a new law and procedure to hold Idaho Judicial Officers (including state judges, administrative hearing officers and prosecutors) accountable for willful disregard of the Constitution, laws and due process requirements.

The Idaho Judicial Council (IJC), the agency currently responsible for the discipline and removal of judges will be eliminated when IJAA becomes law.

Dan Romero, an IJAA advocate and one of the authors of the initiative, traveled from Canyon county to share his personal experience with the legal and judicial systems in Canyon County. Romero spoke regarding an incident where he and his wife were falsely charged with kidnapping their young granddaughter who was actually in school at the time. The police, prosecutors and judge all knew that there was no kidnapping, and that the charge was fictitious, but, that didn’t stop them.

Dan and his wife refused to plea bargain and forced their case to a jury trial. They were eventually found not guilty. Judge Debra A. Orr should have dismissed the charges prior to the trial, but she chose to pursue the persecution against the Romeros in an apparent attempt to persuade Romero to discontinue his campaign for county commissioner in the local 2004 election.

Michael Naylor spoke on the case involving a disabled child, Lizzy Goodwin, who died at the hands of Mr. and Mrs. Whittle. Lizzy had previously been removed from the home of the Whittles due to child abuse and was placed in a protected facility "Children’s Village," but was placed back with the Whittles. Lizzy died by drowning and drug-overdose in a bathtub two days later. The Whittles had active warrants for them in another jurisdiction for child abuse and the potential danger to Lizzy was obvious and documented. Judges Simpson and Mitchell and the prosecutors involved have accepted no responsibility for their failure to protect this child from known child abusers contracted by the state to care for children.

Naylor emotionally told the listening crowd, that his former wife, Rhonda Naylor, the Director of the Court Appointed Special Advocate (CASA) program, tried to stop Lizzy’s placement with the Whittles, but to no avail. She cried to Michael just before the child was killed, saying that little Lizzy would not last the weekend. She was right.

Jerry Weaver also spoke on a matter close to many hearts—grandparent rights! Jerry and his wife Glenda have a disabled daughter and two grandchildren. The children have lived with their grandparents for several years and visit on a regular basis with their mother, who resides in an assisted living facility in Coeur d’Alene. The grandson has a biological father that has chosen for the past five years to not be a part of the child’s life, until recently when he attempted to sue for custody of both children.

Judge Simpson informed the Weavers that the grandparents’ rights statute was unconstitutional in his opinion, referencing an out-of-state case with no legal parallels. He also informed them that the federal Americans with Disabilities Act didn’t apply in his court.

Weaver also shared with the audience their last experience in the Kootenai County court. Approximately 50 court-watchers (many of them grandparents themselves) appeared for the Weaver trial. Administrative Judge Charles Hosack ordered that they all be removed from the courthouse. Johnson verified that Weaver’s account of the happenings at the courthouse was true, as she was one of the 50 persons ordered out of the courthouse.

Dan Romero, Michael Naylor and Jerry Weaver have all filed complaints against judges with the Idaho Judicial Council. But none of those judicial officers have been removed from the bench.

Johnson explained how IJAA works and why it is an improvement over the present Idaho Judicial Council. She noted that more petition signature gathers are needed in this effort and attendees were asked to help collect signatures, particularly in their own respective counties. It was mentioned that South Dakota is gathering signatures for their judicial accountability measure and have acquired some 12,000 signatures to date. Idaho citizens must collect nearly 50,000 signatures by April 30, 2006 in order to see IJAA on the November 2006 ballot.

During the last portion of the meeting, citizens heard from those in attendance who were opponents to the Initiative.

The Idaho Judicial Council (IJC) was represented by Ken Howard, a new member of the IJC, and Robert Hamlin, who has been the IJC Executive Director since 1982. This was the first time the IJC has accepted an invitation from IJAA’s supporters to speak publicly on the topic of judicial accountability.

Citizen attendees, however, were not impressed with the IJC’s explanation of why nothing is being done about bad judges. Romero questioned Howard directly on how criminal charges could be filed when the elements to support the charges don’t exist. Howard’s response was that is why we have courts and judges, because what one person thinks is no evidence, another person may disagree.

Further attempts to clarify what is judicial misconduct seemed to fall on deaf ears. Howard did say that a judge’s attitude and demeanor could possibly be misconduct, but that the questions concerning interpretation of law and fact cannot be decided under the current rules of the Idaho Judicial Council and must be reserved for an appellant judge.

Historically, judicial misconduct has not been legally defined, presenting a real problem in disciplining judges.

Johnson noted that under the IJAA Initiative, judicial misconduct is clearly defined.

Johnson asked Howard to explain from what authority does Hamlin’s position exist in the IJC. Howard, being new to the IJC, let Hamlin address that issue. Hamlin explained that his authority comes from the fact that the IJC, by statute, can hire staff to assist the council members.

Hamlin explained that he is not a member of the IJC, but support staff only. His job is to accept complaints, make copies of the complaint for each council member and to make inquires or investigate at the direction of the Council.

Hamlin explained that he gives his findings to the council members who then decide if the complaint is forwarded to the Idaho Supreme Court for review. If the Supreme Court files an official complaint against the judge, it becomes public record. Otherwise all actions by the council are secreted from the public.

The issue of conflict of interest arose when Johnson asked Hamlin why the IJC office is located at his private law offices. Hamlin acknowledged that his private law office and the IJC office are the same. Hamlin explained that to avoid a conflict of interest, his private practice is limited to civil practice only for large corporate accounts.

Johnson noted that state financial records reflect Hamlin regularly receives $7,000 - $11,000 monthly from the IJC budget. It is also interesting to note that Hamlin, whose conduct is akin to a reigning monarch, describes his duties at the IJC as those of a messenger boy.

Weaver pointed out that, according to IJC’s own reported statistics, since 1995 only two complaints out of 1,303 filed with the IJC have resulted in any official action taken by the Supreme Court.

In one case the judge resigned and in the other the judge was allowed to retire. Statistically, Weaver observed, you have a 99.85 percent chance that your complaint will be dismissed by the IJC.

Hamlin presented information that a judge had recently retired instead of allowing the IJC to move forward with complaint(s) filed against him.

Johnson was unable to get Hamlin to respond and identify which judge had been allowed to retire with full benefits. Johnson explained to the audience that under IJAA, when a judge is removed from the bench, half their retirement benefits are forfeited to the Judicial Accountability Trust Fund.

It appeared that the IJC representatives could not adequately address judicial misconduct issues and were not truthful in their description of how the IJC operates as a check against judicial misconduct.

IJAA acquired four new supporters at the Coeur d’Alene meeting, each of whom is now carrying IJAA petitions. Hamlin and Howard demonstrated that a new entity must replace the IJC if Idahoans are to hold judges responsible for their actions from the bench. Additional petition signature sheets are available from IJAA and signature gatherers are needed.

Future IJAA activities include a courthouse march and door-to-door petition signature gathering.

To help support the Idaho Judicial Accountability Act of 2006 contact Rose Johnson at 208-773-6274 or Norma Batt at 208-459-0207 or visit www.IJAA.net.