What did Idaho's AG say about the original 'Idaho Judicial Accountability Act of 2004' ballot initiative filed in January 2003?
Plain-English summary
This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed January 2, 2003, titled "The Idaho Judicial Accountability Act of 2004" (IJAA). It is the second iteration in a multi-year series (following the February 2002 J.A.I.L. proposal). A substantively similar refiling was reviewed in Cert. 6/4/2003, and the same sponsor reworked the proposal again as the IJAA of 2006 (reviewed in Cert. 4/4/2005).
The proposal sought to:
1. Eliminate judicial immunity;
2. Create a Special Grand Jury (SGJ) to review any decision made in any court;
3. Establish procedures for the removal of judges;
4. Abolish the Judicial Council;
5. Add implementation provisions for the SGJ.
The AG concluded most provisions would likely be struck down by a reviewing court as unconstitutional and a violation of the separation of powers doctrine (Idaho Const. art. II, § 1). The branches of government are intended to operate in their own spheres, subject only to the checks and balances expressly granted within the Idaho Constitution. A change of this magnitude requires a constitutional amendment.
The June 4, 2003 follow-up Certificate of Review incorporated this one by reference. The 2005 review of the IJAA of 2006 incorporated the 2005 follow-up by reference and pointed back to this and the June 4, 2003 review. The whole sequence is part of the national "JAIL 4 Judges" wave of judicial-accountability initiatives, none of which succeeded in any state.
Currency note
This opinion was issued in 2003. 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. None of the JAIL-style initiatives in Idaho qualified for the ballot.
Q: How does this differ from the May 2003 refiling?
A: They are substantively similar. The May 2003 refiling addressed some technical issues raised in this January 2003 review and renamed certain entities, but the constitutional defects (creating a fourth branch, separation of powers) persisted across iterations.
Q: What was the "Special Grand Jury" supposed to do?
A: Under the IJAA framework, an external citizen body would review any decision made in any court, hear complaints of judicial misconduct, and (in later iterations) appoint special prosecutors. The Grand Jury would have broad powers to remove judges. The constitutional problem: that body would either be a fourth branch or would be exercising powers properly belonging to the judicial branch.
Q: Why is judicial immunity considered constitutional?
A: Judicial immunity protects judges from civil suits for acts done within the scope of their judicial functions. The U.S. Supreme Court recognized the doctrine in Stump v. Sparkman, 435 U.S. 349 (1978), and Idaho recognizes it under common law. The doctrine exists because letting losing parties sue judges for unfavorable decisions would chill judicial independence and flood courts with collateral litigation. Eliminating it by statute raises substantial separation-of-powers concerns.
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.
This is the second of multiple Certificates of Review on JAIL-style initiatives in Idaho:
- Cert. 2/11/2002 (J.A.I.L. of 2002)
- Cert. 1/30/2003 (this one, IJAA of 2004)
- Cert. 6/4/2003 (refiled IJAA of 2004)
- Cert. 4/4/2005 (IJAA of 2006)
Citations and references
Statutes and constitutional provisions:
- Idaho Code § 34-1809
- Idaho Const. art. II, § 1; art. III, § 1
Related certificates: Cert. 2/11/2002; Cert. 6/4/2003; Cert. 4/4/2005.
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C013003.pdf
Original opinion text
January 30, 2003
The Honorable Ben Ysursa
Secretary of State
HAND DELIVERED
Re: Certificate of Review – Initiative Regarding The Idaho Judicial Accountability Act of 2004 (IJAA)
Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 2, 2003. 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 five elements; separation of powers analysis under Idaho Const. art. II, § 1); and Conclusion. See the linked PDF for the complete text.]
Sincerely,
LAWRENCE G. WASDEN
Attorney General