What did Idaho's AG say about the original 2002 J.A.I.L. (Judicial Accountability Initiative Law) ballot initiative?

Plain-English summary

This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed January 15, 2002, titled "The IDAHO Judicial Accountability Initiative Law (J.A.I.L.)." It was the first of several iterations of the same proposal that Idaho would see between 2002 and 2005. The AG identified the same separation-of-powers defect that he would later restate in his 2003 and 2005 reviews of similar proposals.

The proposal sought to:
1. Eliminate judicial immunity;
2. Create a Special Grand Jury related solely to the conduct of judges on the bench;
3. Establish procedures for the removal of judges;
4. Add implementation provisions for the Grand Jury.

The AG concluded each measure would most likely be struck down as unconstitutional and a violation of the separation of powers doctrine. Each branch of government is intended to operate in its own sphere, subject only to the checks and balances expressly granted within the Idaho Constitution. Absent a constitutional amendment, the measure would not survive judicial review.

This is part of a national wave of "JAIL 4 Judges" (Judicial Accountability Initiative Law) proposals filed in many states between roughly 2001 and 2006. None succeeded.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional analysis (separation of powers under Idaho Const. art. II, § 1) reflects long-standing Idaho doctrine and remains generally applicable. None of the JAIL-style initiatives succeeded in any state.

Common questions

Q: Did this initiative make the ballot?
A: No. The petition did not gather sufficient signatures.

Q: How does this differ from the later 2003 and 2005 IJAA initiatives?
A: This 2002 J.A.I.L. version had four elements (eliminate judicial immunity, Special Grand Jury, removal procedures, Grand Jury implementation). The 2003 IJAA of 2004 (Cert. 1/30/2003 and Cert. 6/4/2003) added abolishing the Judicial Council. The 2005 IJAA of 2006 (Cert. 4/4/2005) renamed the Special Grand Jury to the "Idaho Judicial Accountability Commission" and added several implementation details. None of the iterations qualified for the Idaho ballot.

Q: What is "judicial immunity"?
A: A common-law doctrine that protects judges from civil suits for acts done within the scope of their judicial functions. The doctrine is recognized in Idaho and federal law (Stump v. Sparkman, 435 U.S. 349 (1978)). Eliminating judicial immunity by statute would expose Idaho judges to civil liability for their judicial decisions, a sweeping change with significant constitutional implications.

Q: What's the separation of powers concern?
A: Idaho Const. art. II, § 1 establishes three branches: legislative, executive, and judicial. A "Special Grand Jury" with broad authority to review judicial decisions and remove judges would either be a fourth branch (which the constitution does not contemplate) or would be exercising powers properly belonging to the judicial branch. Either way, the structure conflicts with the constitution.

Background and statutory framework

Idaho's initiative power (Idaho Const. art. III, § 1) lets voters propose statutes; Idaho Code § 34-1809 requires the AG to issue a Certificate of Review. The separation of powers in Idaho Const. art. II, § 1 establishes three branches with mutually exclusive powers.

This is the earliest of multiple Certificates of Review the AG issued on JAIL-style initiatives in Idaho. Subsequent iterations were addressed in Cert. 1/30/2003, Cert. 6/4/2003, and Cert. 4/4/2005.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (AG initiative review)
- Idaho Const. art. II, § 1 (separation of powers)
- Idaho Const. art. III, § 1 (legislative power)

Related certificates: ID AG Cert. 1/30/2003 and Cert. 6/4/2003 (IJAA of 2004); Cert. 4/4/2005 (IJAA of 2006).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021102.pdf

Original opinion text

February 11, 2002

The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review – Initiative Regarding Judicial Accountability Initiative Law (J.A.I.L.)

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on January 15, 2002. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

[The full certificate runs several pages, with sections on Ballot Title; Matters of Substantive Import (Introduction listing the four elements; analysis under Idaho Const. art. II, § 1); and Conclusion. See the linked PDF for the complete text.]

Sincerely,

LAWRENCE G. WASDEN
Attorney General