From the April 2002 Idaho Observer:

AG office deepens ballot title controversy

Deputies contradict themselves, provide no remedy

By The Idaho Observer

BOISE -- Proponents of the judicial accountability initiative proposed by the Idaho chapter of J.A.I.L. 4 Judges claim that the long and short ballot titles drafted by Idaho Deputy Attorney General Brian Kane do not accurately reflect the proposed law.

The short ballot title, which appears at the bottom of petitions signature pages, states that the J.A.I.L. initiative would create a, “...special grand jury with statewide jurisdiction in order to review every judges' actions and decisions.”

J.A.I.L. spokesman Scott Thurston explained that the purpose of the citizens' grand jury is to review complaints against judges and return indictments or recommendations of civil action, whichever is appropriate, if the complaints are deemed to have merit. “There is no language in the initiative to suggest that the grand jury will be authorized to review the actions and decisions of every judge,” Thurston said. “Unless, of course, complaints are filed for every action and decision by the states' judges are found to have merit,” he added.

The long ballot title claims that the initiative intends to create, “...a special grand jury with statewide jurisdiction for the purpose of eliminating judicial immunity in all forms, reviewing the decisions and actions of judges in all cases before them.”

“This, too, is misleading,” commented Thurston. “The initiative specifically states that judges are to enjoy their traditional immunity during good behavior. It is only when the citizens' grand jury has found enough evidence that the judge has used his authority in a criminal, immoral or unethical manner that his immunity is removed. Any inference to the contrary is simply incorrect,” said Thurston.

Immediately upon receipt of the approved ballot title in mid February, Idaho Rose Johnson contacted Kane who, according to Johnson, agreed that she had a valid complaint. “Kane told me, however, that he would not change the ballot title language to more accurately reflect the intent of the initiative. He told me to appeal the ballot titles language problem to the Supreme Court as provided in statute,” Johnson explained.

A choice?

J.A.I.L. proponents were given the choice of either appealing the ballot title language to the Supreme Court as provided in statute or proceed with signature gathering regardless.

“We decided that the appeals process would likely ruin our chances to get on the ballot for November. We also decided that the attorney general's office's intended to mislead the petition-signing pubic with the misinterpreted ballot title language in an effort to sabotage our attempts to make judicial accountability the law. It has been our experience that a simple description of the ballot title controversy encourages people to sign the petition because the intent on the part of the attorney general's office becomes transparent,” said tour speaker Don Harkins of The Idaho Observer.

To further take advantage of the ballot title controversy, tour members distributed hundreds of copies of a letter addressed to Attorney General Alan Lance describing the issue. “We encouraged people from all over the state to sign the letter and sent it to the attorney general. We think the AG's office has received hundreds of these letters,” Harkins explained.

Official contradiction

During the tour, Thurston and Harkins stopped by the Capitol March 12 and discussed the ballot title issue with Kane and Deputy Attorney General William von Tagen.

Ballot title author Kane explained that, “We are limited by statute to 20 words in the short title, 200 words in the long title.”

Kane went on to explain that it is “within the confines” of the word limitations that the attorney generals' office seeks to, “capture the spirit and intent of the proposed legislation” when drafting the long and short ballot titles.

“No,” said Kane when Harkins asked if he had ever discussed “the spirit and intent” of the J.A.I.L. initiative with its framers.

“The way I read it is the way I read it,” he explained.”

“All we have to go on is what's written,” von Tagen chimed.

“I believe I caught the deputy attorneys general in a contradiction,” said Harkins. It is impossible to 'capture the spirit and intent of the proposed legislation' without talking to the people who wrote it,” Harkins stated.

Kane and von Tagen believe that the text of the initiative is so overbroad that they can justify believing J.A.I.L. proponents want the authority to review every judges' decision and action. “I have no idea how Kane arrived at his beliefs. Nobody with J.A.I.L. anywhere in the country has ever advocated the removal of judicial immunity in all forms nor have they ever expressed intent to review all of their decisions and actions. Furthermore, the initiative itself specifies the authoritative parameters of the citizen grand jury in plain, unambiguous language,” said Thurston.

No administrative remedy

By directing J.A.I.L. proponents to appeal the ballot title language to the Supreme Court, the attorney general's office has admitted that they have no administrative remedy.

The entity passage of the J.A.I.L. initiative would replace is the Idaho Judicial Council (IJC). According to Idaho Code Section 1-202(2), the IJC “shall..Make reports to the Supreme Court and legislature at intervals of not more than two (2) years;.”

“To direct J.A.I.L. to appeal the ballot title language to the Supreme Court is not sound legal advice,” commented Thurston, who added that the Supreme Court cannot ethically hear such an appeal as it presents an obvious conflict of interest.

J.A.I.L. proponents began investigating their avenues of legal recourse.The avenue decided upon was to file a $5,000,000 tort claim against the attorney general's office.

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