From the March 2002 Idaho Observer:
Does J.A.I.L. withstand legal muster?
The people behind the J.A.I.L. initiative believe that contemporary judges have been allowed to abuse their traditional immunity to the point that they may do almost anything to anyone, however lawless or unethical, without fear of repercussion. The people behind J.A.I.L. also believe that the state proves the J.A.I.L. position by the number of complaints of judicial abuse it receives compared to the number of judges that are punished for having been abusive. The state argues that the initiative is unconsititutional, but offers no remedy for the judicial anarchy that prompted the need for such an initiative. The state also claims that J.A.I.L. will be overturned if passed.
The Certificate of Review from the office of Idaho Attorney General Alan Lance is available at the Idaho Secretary of State's website. Below is the rebuttal to AG Lance's position from lawyer John Bradbury, who is an advocate for J.A.I.L. because he found out first hand how the state militantly defends judicial immunity an all behavior -- good or bad.
Rebuttal of AG Review
Rose Marie Johnson
Dear Ms. Johnson:
Persuant to your request, I have reviewed the Attorney General's advisory opinion to the Secretary of State concerning Judicial Accountability Initiative Law's proposed initiative. My review has been cursory, but I am nonetheless confident in telling you that the opinion is seriously flawed.
The Attorney General predicates his opinion that the initiative has serious constitutional problems on the separation of powers doctrine. He cites Idaho Constitution, Article II, Section 1 and Article V, Sections 2 and 13, which do define the respective roles of the judiciary and the legislature. But he ignores the constitutional provision that deals with the initiative's purpose, which is the discipline and removal of judges.
Article V, Section 28, specifically provides for the discipline and removal of judges. It states:
Removal of judicial officers -- Provisions for the retirement, discipline and removal from office of justices and judges shall be provided by law.
Section 28, by its clear and unambiguous language, reposes the power to discipline and remove judges from office solely in those groups authorized to enact laws.
The Idaho Constitution identifies who is entitled to enact legislation in Idaho. Article III, Section 1, provides in part:
Legislative power -- Enacting clause -- Referendum -- Initiative.
The Attorney General cites this section but does not recognize its significance apparently because he was unaware that the Idaho Constitution specifically provides that it is the legislators, not the judiciary, who shall decide the reasons for and the means by which judges shall be disciplined and removed from office. Contrary to what the Attorney General says, under the Idaho Constitution, only the state legislature or the people through the initiative process have the authority to provide for the discipline and removal of judges from office. The judiciary is entitled to participate only to the extent legislation by either group permits it.
To the extent that the initiative can be read to permit the grand jury to reverse a decision of a court or to sue a judge for anything other than misconduct, a separation of powers issue does not exist. You should be sure to include a sentence stating that only those portions of the initiative that a court finds unconstitutional may be deleted from the act.
I hope this will be helpful to you and Secretary of State Pete T. Cenarrusa. If I can be of any further help, please advise.
Yours very truly,
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