From the March 2005 Idaho Observer:
The Accountability Solution:
Judicial accountability is coming to Idaho in 2006
by Hari Heath
Anyone who has an IQ higher than President Bush and an ability to look farther than his TV screen can see we have problems in government. There have been a myriad of solutions attempted, but most have withered on the vine. Not for failure to properly cultivate the solutions, but because we have a drought of accountability. In such a drought, no remedies can grow. Only hardy noxious weeds remain.
The election process has been commandeered by electronic vote tabulation, a partisan manipulation which excludes viable alternatives, and mass media programming. Writing a legislator or other official is an exercise in futility. Protests and petitions go unheeded. Operating under a cloak of immunity, secure in their chambers, the judiciary offers the final blow to any hope of decent government.
For those whose contact with the judicial branch is limited to Judge Judy and reruns of Perry Mason, all is well. But those who have encountered the judicial system usually have a different tale to tell—all too often a horror story.
Fraud and perjury are routine. Fundamental rights and due process are violated along with the laws and mandates of the Constitution. Judges routinely disregard or conceal material facts; act without jurisdiction or when conflicts of interest require they step aside. This is common when judicial officers know there will be no consequences. The people, who should be the masters of the government which serves them, instead find themselves subjected to the whims of judicial power.
Thomas Jefferson warned of this in 1823: "...that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large...that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before anyone has perceived that, that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted ...if secured against all liability to account."
What does this mean to the common man? With volumes of case law, filling more shelf space in law libraries than all the statutes written by legislators, the judiciary has decided, quite literally, just what the definition of is, is, and everything else. Their self-legislated "doctrines" perpetuate the judiciary’s ever expanding abuse of power.
Since 1934, they have made their own rules, controlling procedure in the courts, the admissibility of evidence, and how, when and if a citizen can take an appeal from their misconduct.
The result is an ongoing feast by the lawyering class upon the general public and a U.S. prison population that exceeds that of the former soviet republics or communist China. An estimated one-third of convictions are the result of due process violations, while sixty percent are incarcerated for victimless crimes; some are convicted of crimes which do not exist or held without charges—often for political retribution.
Torture, ranging from the deprivation of fundamental necessities, to actual cruel and unusual punishment is routine and largely ignored by those "on the outside." And to where can the abused, incarcerated citizen appeal for relief? The same judicial gang that caused the problem in the first place.
The unlawful theft of property and the seizure of assets by judicial fiat has reached epidemic proportions. The courts have become one of the largest real estate and financial management institutions, except most of their "clients" did not willingly consent to the transactions. And most of this billion dollar industry goes unreported in the dominant press, leaving the public unaware of the scope of the problem.
Adding insult to injury, judicial officers have legislated for themselves the doctrine of "absolute immunity," declaring themselves absolutely immune from suit for any act committed in a judicial setting. This absolute immunity has been extended to both judges and prosecutors:
"Judges will not be deprived of immunity for erroneous acts or even those actions performed maliciously or in excess of authority." (Glick v. Koenig, 766 F.2d 265).
"Judge is immune from civil damage suits...immunity extends even to malicious or corrupt acts." (Bryant v. O’Connor, 671 F.Supp.1279).
"Prosecutors may appeal to their immunity in the face of allegations of knowing use of perjured testimony and withholding of exculpatory information." (Glick v. Koenig, 766 F.2d 265).
There is an ample collection of decisions in court digests and reporters, creating and maintaining this doctrine of immunity. Frederic Bastiat, who wrote The Law in 1850, explained this:
"When plunder becomes a way of life for a group of men living together in a society, they create for themselves in the course of time, a legal system that authorizes it and a moral code that glorifies it."
Taking the initiative
But a group of people in Idaho have taken the initiative to change this. Using their inherent power recognized in the Idaho Constitution and the initiative process, some folks in Idaho are proposing a unique system of judicial reform—The Idaho Judicial Accountability Act of 2006.
The Act’s Preamble and Purpose declares its intent and authority: "We, the People of the State of Idaho, find that the doctrine of judicial immunity has been greatly abused; that no effective remedy to redress judicial misconduct exists; that the writ of habeas corpus in many cases is effectively suspended; that the Idaho Judicial Council has offered a less than one percent chance for formal action being taken to remedy judicial misconduct to the people of Idaho and many have, and continue, to suffer from the results of a judiciary which is not held accountable to the people; therefore, an emergency is hereby declared to exist in fact. We the People of Idaho, in whom all political power is inherent; and for whom government is instituted for our equal protection and benefit; and who have the right to alter, reform or abolish the same whenever we deem it necessary; as declared by Article One, Section Two of the Idaho Constitution; we therefore establish by Initiative this Act for our immediate protection and for the benefit of our posterity so as to insure judicial accountability and justice."
Unlike most modem day legislation, this initiative cites numerous constitutional authorities supporting its enactment.
The current Idaho Judicial Council which has failed miserably at providing any accountability (and is composed largely of judicial branch members and attorneys) will be abolished by this people’s Act, saving the Idaho taxpayers about $150,000 a year. The Judicial Council only issued reprimands in 3 of the first 1,000 complaints that were filed with them.
The Initiative is not an attack on the judiciary, as some in government would have you believe. It takes a balanced approach, applying a comprehensive and responsible solution to an existing problem.
An agency of the people
It creates a 15 member Idaho Judicial Accountability Commission (IJAC) as an "agency of the people" to review complaints of judicial misconduct and petitions for relief. There are requirements for filing complaints, including the requirement that the complainant must have first tried to remedy the misconduct in the venue where it occurred.
The commission’s task is to both protect the public from judicial misconduct and to protect judges from ill-founded or frivolous complaints. The "immunity" which judicial officers now enjoy, will have some limits after the Initiative passes. The Act defines the misconduct for which they will no longer be immune as: "any willful, intentional or deliberate act(s) or omission(s) which at the time of their commission or omission violated the Constitutions or laws of Idaho or the United States of America; perpetrated fraud or perjury; created a conspiracy to deprive any person of life, liberty or property; violated due process of law; denied or deprived discovery in a case; disregarded a material fact or law; denied or deprived access to counsel; was a judicial act exercised without jurisdiction; blocked the lawful conclusion of a case; tampered with a jury; or neglected to disclose conflicts of interest; or refused to recuse themselves from an action when a conflict of interest was evident."
The scope of the proposed commission’s power to adjudicate complaints is limited to review of the complaints’ merits and rendering decisions. The decision in a case is not a final determination of the matter, but only determines whether or not the judicial officer’s "immunity" should be set aside so further action in a regular court, either civil or criminal, can proceed. This would create a check and balance on the use of power, preventing the commission from becoming a judicial witch-hunt.
A job for Idahoans
The initiative extensively details the formation, jurisdiction and general duties of the IJAC. The qualification of commissioners are limited to Idaho citizens who are at least 21 years old and "able to speak, read and comprehend English." Certain people are prohibited from becoming commissioners: "As an agency of the people of Idaho, and in the interest of justice and to prevent possible conflicts of interest, people not eligible for IJAC service shall extend to and include:
(a). all current and prior elected or appointed public officials who have held a state office within the last ten (10) years, or;
(b). any past or present members of the Idaho State Bar, or;
(c). currently employed law enforcement personnel, or;
(d). current employees of the legislative, executive or judicial branches of government, or administrative agencies, and;
(e). the spouses and/or members of the household of any person who is disqualified from being an IJAC Commissioner under subsections .(a) through (d) of this section."
This should prevent this watchdog "agency of the people" from being coopted by those who have an interest in maintaining the status quo of government.
A unique selection process
The method of commissioner selection is unique. Three-year terms will be filled by qualified Idahoans who have applied to be in the "IJAC Commissioner Candidate Pool." The pool will be maintained by the Idaho Secretary of State, who at certain times will draw names to fill the positions on the IJAC. It will be a full time job, which pays $3,500 a month.
There is extensive language in the initiative detailing the selection process, but the Fees, fines and forfeitures
There is also an optional filing fee of $50 for complaints before the IJAC. In lieu of paying the filing fee, a complainant may file a declaration of indigency or objection to paying a filing fee. This agrees with Article One, Section Eighteen of the Idaho Constitution, which prohibits the delay, denial or sale of justice.
Judges who receive three strikes and are removed from office (more on that later) will also lose half of their judicial retirement benefits. The half they lose will be forfeited to the IJATF under this proposed Act.
Complainants who are determined to have filed a frivolous or harassing complaint may be subject to a fine of up to $1,000 which will be deposited into the IJTF.
A frivolous complainant may also be required to pay up to $1,000 dollars to the judicial officer for defense costs.
All of these potential revenue sources are likely to create a self-supporting agency of the people. The initiative provides, after five years and every five years thereafter, for a legislative review of the "budget, revenues and costs of operations of the IJAC and [the legislature] may thereafter amend the minimum annual operational budget amount to an amount which reflects the actual operational costs incurred..."
Initially, the commission should be swamped with work, thinning out years of corruption. But after a few years, the garden of good government should become more established and only require some light weeding from time to time.
State judges and county prosecutors offices are created by the judicial article, Article Five, of the Idaho Constitution. As such, they are all judicial officers subject to review by the IJAC. Some may argue that prosecutors act in an executive capacity, which should be true, but, in fact, in Idaho they are not executive officers. Anyone who has observed the "teamwork" judges and prosecutors use to ensure convictions can verify the practical reality of this fact.
Complaint procedures and rules
The initiative will set certain complaint filing procedures in statute and empower the commission to develop further rules, which shall govern IJAC procedures for filing complaints and petitions; investigating, reviewing considering and determining the merits of complaints or petitions; authorizing, issuing and/or serving summons and/or subpoenas to compel the appearance of witnesses or documents as needed; transferring cases to trial court for further civil or criminal actions; reviewing, granting or denying petitions for: temporary immunity from arrest, forfeiture or confiscation of property, deprivation of Rights or privileges, or habeas corpus.
These Idaho Judicial Accountability Rules (IJAR) will be required to be made available, at no cost, in all county Courthouses, the Idaho Supreme Court, law libraries, state prisons, county jails, state agency offices which hold administrative hearings and other state offices. The IJAC will also be able to promulgate its own rules for its internal operational procedures.
Judicial notice of remedy required
The Initiative will also require judges to place a notice on "every judicial ‘Order, Decision, Judgment or sentence’ which clearly states that: ‘Any party who believes a judicial officer has committed any act of judicial misconduct may file a complaint pursuant to the Idaho Judicial Accountability Act of 2006, (Idaho Code, Title 1, Sections 2501 et. seq.)." This will both let the public know they have a remedy for judicial misconduct and remind judges, with every order they sign, that they may be held accountable.
Criminal complaints of judicial officers may be brought directly to the IJAC upon all the following prerequisites: "(1) a criminal complaint has been lodged with the appropriate prosecutorial entity or court, for the alleged misconduct; (2) the prosecutor declines to prosecute, or ninety (90) days has passed following the lodging of such a complaint and prosecution has not commenced; and (3) an indictment, if sought, has not been specifically declined on the merits by a Grand Jury."
On occasion, judges and prosecutors commit criminal acts during proceedings. Within the closed loop of the current judicial machine there have been no avenues open to remedy such misconduct. With this provision of the initiative there will be an place to effectively begin such criminal proceedings.
The IJAC will only review cases to see if there are any grounds for action. Complaints are then forwarded to a special trial court. The IJAC shall then select a special prosecutor and a judge from a county other than that of the defendant judicial officer. That trial court is then empowered to select special trial jurors from the venue where the case is to be tried, without preemptory challenges and with voir dire limited to challenges for a personal relationship with any party in the case.
The special trial jurors will come from the same jury pool as any regular jury and will be instructed that they have the power to judge both the law and the facts. The initiative will amend the payment to juror statute so special trial jurors will be paid $70 instead of the current $10 a day. No person will be compelled to be a special trial juror.
Upon conviction, the special trial jury will have the exclusive power of sentencing, limited to incarceration, fines and/or community service. Each juror will determine the sentence they would impose, but no sentence imposed by any juror shall exceed the statutory maximum allowed for the crime(s) for which the judicial officer was convicted. The actual sentence imposed will be derived by an average of the sentences imposed by each juror.
Statute of limitations
The initiative specifically declares that there will be no statute of limitations limiting the time in which a complaint for judicial misconduct can be filed. It can take people who have suffered substantial losses from a corrupted judicial process time to gather their wits, the documents and evidence to mount a successful response.
Under this initiative however, a complainant must "have first attempted to remedy the conduct complained of in the venue where it occurred." The initiative describes numerous forms of attempted remedies that will be considered as an initial attempt for remedy.
The IJAC can consider complaints of misconduct that occurred prior to the enactment of the initiative, if the complained of misconduct was "illegal or contrary to the mandates of the Constitution(s) at the time they occurred." The Constitution prevents ex post facto laws, or laws which make previous behavior a new crime, "after the fact," but if an act was already illegal, and the perpetrator was being protected by a system which refused to consider charges against one of its own, people will have an opportunity for an independent review, if the initiative is passed.
There are many standard operating procedures condoned in courts by judicial doctrine or self-promulgated rules, which defy the laws and mandates of the Constitution. Some of these criminal procedures will be exposed for what they are—criminal—once judicial accountability becomes law.
The Judicial Accountability Act does not in itself solve everyone’s problems. Criminal matters must still be resolved in a separate trial setting. And "winning" a decision from the IJAC in a civil matter only means the complainant is allowed to continue past the current "wall of immunity" in a regular civil court. The Act’s statute of limitations requires them to do so, in a civil case, within 180 days after the Decision is rendered, or their case may be dismissed.
Public indemnification prohibited
"No judicial officer complained of, or sued civilly by a complainant pursuant to this Act shall be defended at public expense; or from any publicly-funded indemnity or insurance fund; or by any elected or appointed public counsel in any proceeding before the IJAC; nor shall any judicial officer be reimbursed from public funds for any losses sustained under this Act."
Currently, the state has a well-funded risk management insurance fund, with an army of attorneys ready to fight off the citizenry every time they try to right a wrong committed by a government employee. At least when before the IJAC, a judicial officer will have to stand responsible for his or her own defense.
Removal of judicial officers
The IJAC will be empowered by the initiative to remove judges from the bench after they have three "strikes" assessed against them. A "strike" is any conviction in a criminal matter, "including any plea of guilty, no contest plea, deferred or withheld judgments of any offense committed while acting in a judicial capacity," or "an adverse decision against a judicial officer resulting from a civil proceeding in which the judicial officer has been found liable for act(s) or omission(s) while acting in a judicial capacity."
Whenever the IJAC becomes aware that a judicial officer may be eligible to receive a strike against them, the IJAC will review the matter and assess a "strike" if it is appropriate. After three strikes, the "judicial officer shall be ineligible to hold any State judicial office, including pro tem or senior judge."
And they mean business: "An Order for...removal from office concerning any judicial officer, duly executed by the IJAC...shall be enforced immediately and with the assistance of local law enforcement if necessary...which may include escorting the individual (judicial officer) from the court or other official property. Any judicial officer refusing to comply...may also be charged with impersonating a judicial officer, trespassing and/or any other charges deemed appropriate." Wow!
Forfeiture of retirement benefits
"Retirement benefits for any removed judicial officer shall not exceed one-half of the benefits that such person would have otherwise been entitled. One-half of any judicial officer’s retirement benefits shall be forfeited to the IJAC, with an equal payment made to the Clerk of the IJAC. Early retirement shall not avert a third-strike penalty. Retirement benefit forfeitures under this Act are limited to benefits accrued as a judicial officer. Benefits accrued from sources other than public service as a judicial officer are not subject to the provisions of this Act."
The IJAC will be empowered to "grant or deny temporary immunity from arrest, prosecution, forfeiture or confiscation of property or the deprivation of Rights and/or privileges to any complainant or defendant, except in cases of: Conviction for violent felony involving actual injury to another person; or conviction of an act of fraud, theft or property damage exceeding five-thousand dollars." The IJAC, after review of the case, may grant such immunity if the action being protected from, "resulted from judicial misconduct or abuse of authority as documented in complainant’s complaint." Defendant judicial officers may be granted similar relief and immunity may be extended to include protection during any civil or criminal case which is related to the case before the IJAC. Temporary immunity from arrest may also be granted to any fugitive scheduled to appear before the IJAC.
The Idaho Legislature "reformed" the habeas corpus and post conviction relief process several years ago, essentially clipping the wings of this ancient writ. While it still is, and can be used, it no longer has as broad an application. Essentially, under the new reform, to apply for relief from constitutionally or jurisdictionally-defective convictions, only the convicted party or his attorney may apply for relief and then only in the district where the conviction occurred or in the Idaho Supreme Court. The Supreme Court usually goes with the status quo and applying for relief in the same place where the judicial misconduct occurred can be an exercise in futility. Additionally, many of the issues which become subjects in a habeas corpus petition, challenge the standard operating procedures of modern courts, which if they admit they are improper, open the door to the admission that our courts are sometimes operated in a criminal manner. Habeas relief is, therefore, often denied when it shouldn’t be.
The Initiative grants the IJAC the power to hear and grant the writ of habeas corpus, giving Idahoans a much-needed avenue for relief.
As the Initiative provides, all challenges to the Initiative must be tried by a jury and not by a bench trial or panel of judges, or by any judge who has a pending complaint before the IJAC. The Act declares that preeminence shall be given to this Act, as an Initiative of the people of Idaho, exercising their sovereign authority, in any conflict with Idaho statute, case law, or doctrine(s). There is a severance clause in case any part is determined to be unconstitutional, the remainder shall be in full force and effect.
A balanced remedy
For a change, the people of Idaho are exercising their right to reform government for their equal protection and benefit. This Initiative provides a much needed limitation to the judicially legislated doctrine of "absolute immunity." By defining specified misconduct and providing an avenue for remedy, good judges are protected and respect for the system can be restored.
With the self-funding aspects of the initiative, in time it may even provide revenue to the state’s general fund. As a balanced remedy, it provides a forum for relief that’s not all powerful. Further civil or criminal proceedings in regular courts are required to achieve the final outcomes.
The citizenry will have a source for temporary immunity and habeas corpus relief that is independent of the system which may have been the problem in the first place.
And ultimately, as the Initiative declares, by holding the judicial branch accountable to the laws and the Constitution, they will thereafter hold the other branches accountable also.
The system will attack
The system of government we now have, will attack this effort with all the force it can muster. It must, because passage of this Act will ultimately provide the method to rollback a century of unlawful legislative enactments and judicial doctrines. The current usurpers in office realize the gravity of the situation. They will lose much of the powers they have assumed for themselves and they may find themselves held liable, civilly and criminally, for their past and current conduct.
Idaho attorney General Lawrence Wasden has already made a blanket declaration that the Act is unconstitutional. Never mind that if his arguments against the IJAA were applied to current state government, it too would be found unconstitutional.
He declares that it violates the separation of powers in Article Two of the Constitution. Any first-year law student must know that administrative agencies engage in legislative, executive and judicial acts, which for almost a century, the courts have consistently construed as appropriate administrative conduct, even though they violate the separation of powers. Wasden also fails to consider the numerous constitutional authorities cited by the Initiative which "expressly direct or permit" its enactment, to paraphrase the final words of Article Two.
Wasden’s Certificate of Review states, "An initiative is an exercise of legislative power; therefore, the Commission can only exercise those powers that are provided for within Article III of the Idaho Constitution. This initiative seeks to create a commission empowered with the authority to exercise both Article IV and Article V powers. Exercise of these powers is constitutionally offensive. The interference with and assumption of powers of coordinate branches of government by another is anathema to the basic concepts of Idaho’s constitutional representative democracy."
I don’t disagree with Wasden’s essential premise, in fact I would like to see our current government adhere to it. And it may have to, once the Initiative is passed. But I have to wonder how someone could graduate from law school and succeed to the office of the attorney general without knowing that the legislature, in the exercise of its Article III, legislative powers has created many commissions and other agencies which exercise primarily Article IV, executive powers, but also routinely promulgate rules (a legislative act), and hold hearings on contested issues, from which they issue decisions (exercising an Article V, judicial power), without being "expressly directed or permitted" to do so.
Wasden’s review also attempts to claim the Initiative violates the unity of subject and title requirements in Article III, Section 16: "Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title."
Any reasonable person who has read the Initiative can easily see that it contains only matters properly connected with its subject and title, Judicial Accountability. If there is any question about what is a legally acceptable legislative enactment, one need not look any further than the legislation which adopted or amended the Uniform Commercial Code found in Title 28. Talk about a multi-headed monster let out of its cage.
In a world with an unaccountable judiciary, it doesn’t matter how flimsy or misapplied governments’ arguments may be, judges will often rule in their favor anyway. But Wasden’s thin arguments may not get far with a judiciary that has begun to smell a few whiffs of accountability on the horizon.
You can make the difference
The Initiative’s sponsors Norma Batt and Rose Johnson have done some incredible work putting this initiative together. It is now actively in the signature-gathering phase to put it on the ballot for 2006. To be on the ballot, the Initiative requires 50,000 or more signatures from registered Idaho voters by April, 2006.
A statewide coalition is now forming to make it happen. You can support it by signing the petition, gathering more signatures and organizing in your area to support judicial accountability. To find out how, visit www.IJAA.net or call Norma Batt (208) 459-0207; Rose Johnson at 208-773-6274.