From the December 2009 Idaho Observer:

District Judge John Bradbury’s epic trek through the Idaho state and federal judiciaries

The following story is an update to the article in the July 2009 edition of The I.O., “ILC seeks sanctions against good judge for curious cause”, which detailed the Idaho Judicial Council’s persecution of Judge Bradbury over his residency status.

When Bradbury discovered Chief Justice Daniel Eismann, who had presided over the Idaho Judicial Council when it decided to reopen the case and to file formal charges, also was sitting as the chief justice in the case, he demanded to see the notes of the conferences the justices had regarding Bradbury’s motion that the Idaho Supreme Court order the council to disclose its documents before hearing the appeal. The conference notes disclosed that Eismann conferred and voted with the other justices to deny the motion.

Bradbury then moved to disqualify Eismann for conflict of interest (sitting in judgment of his case) and three other judges, who permitted him to confer with them because of exparte contact with a party in the absence of the other party. Former Justice Wayne Kidwell was sitting as a pro tem justice in Justice Horton’s place because Horton had voluntarily recused himself. As a result, Kidwell did not participate in the conferences.

Bradbury then sued the four regular justices in federal court alleging they had denied him due process. At that point, Eismann recused himself with a statement that he did not want Bradbury to get council documents because his only motive for wanting them was to retaliate against his accuser. He cited no evidence to support his conclusions.

The Idaho Supreme Court then decided on Sept. 30, 2009 that Bradbury does not have a right to know who his accuser is and that the evidence the Idaho Judicial Council relied on to reopen its file regarding his residency and to file formal charges against him was not relevant. It did not explain how it could decide that without knowing what the evidence was.

The Idaho Supreme Court also decided that Chief Justice Daniel Eismann’s dual roles as chair of the judicial council and sitting as a justice on the court to judge the conduct of the council did not offend due process because Judge Bradbury had not shown that Eismann’s participation on the council conflicted with his role on the court. It did not explain how Bradbury could show that when it denied him access to the council that this reflected the part Eismann played as recorded in the judicial council’s minutes. The supreme court also decided that Bradbury was not prejudiced by denying him access to the council documents regarding him because the council said it had made the decision only on the record at its hearing. It did not explain why only one party to a dispute should have access to all the facts and be able to unilaterally decide what the record before the supreme court should be.

Based on these conclusions, the supreme court decided that “actually reside” means “primarily reside” in Idaho County. It ordered Bradbury to submit an affidavit within twenty-one days that he primarily resided in Idaho County, which Bradbury did. The court was apparently not bothered by the fact that if one can primarily reside in one place, he can actually reside in other places as well, which is all the statute requires.

On October 20, 2009, Federal Judge Lynn Winmill heard the four justices’ motion to dismiss Bradbury’s complaint. He ruled that Bradbury was entitled to relief only if he could show extraordinary circumstances. He decided that denying Bradbury the identity of his accuser, the evidence the council ruled on to bring its charges, and allowing one of the parties to confer with other justices regarding Bradbury’s right to council documents, were not extraordinary and dismissed the case.

Bradbury is appealing that decision to the Ninth Circuit Court of Appeals. The saga continues.