What did Idaho's AG say about the original 2003 'Idaho Judicial Accountability Act of 2004' ballot initiative?
Plain-English summary
This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed May 7, 2003, by Rose Johnson titled "The Idaho Judicial Accountability Act of 2004" (IJAA). It was the first of two related judicial-accountability initiatives the same sponsors filed in Idaho; the AG's later (April 4, 2005) Certificate of Review on the IJAA of 2006 incorporated this one by reference. The AG also incorporated by reference an even earlier review dated January 30, 2003 (which is not separately scraped).
The proposal would have:
1. Eliminated judicial immunity;
2. Created a "Special Grand Jury" (SGJ) (later renamed "Idaho Judicial Accountability Commission") to review any decision made in any court;
3. Established procedures for the removal of judges;
4. Abolished the Judicial Council;
5. Added implementation provisions for the Grand Jury / Commission.
The AG flagged the same fatal constitutional problems that he later restated in the 2005 review:
Fourth branch of government. Idaho Const. art. II, § 1 establishes three branches: legislative, executive, and judicial. The proposed Commission was created as an entity independent of all three, in essence a fourth branch. The AG called this "patently unconstitutional." A change of that magnitude requires a constitutional amendment, not a statute.
Separation of powers. The Commission would interfere with the powers properly belonging to the three established branches. The AG concluded such interference is "anathema to the basic concepts of Idaho's constitutional representative democracy."
Stylistic critiques. The use of "A.D." in dates was superfluous. The U.S. Constitution should not be described as "the 1789 Constitution for the United States of America including the 1791 Bill of Rights"; the Constitution and its amendments are simply "the Constitution" (M'Culloch v. Maryland, 17 U.S. 316 (1819)). The Declaration of Independence has no force or effect of law.
The AG concluded the proposal would likely be found unconstitutional by a reviewing court.
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 Idaho Judicial Accountability Act series of initiatives was part of a national wave of "JAIL 4 Judges" (Judicial Accountability Initiative Law) proposals sponsored in many states. None succeeded. The constitutional provisions cited remain in force.
Common questions
Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. The petition did not qualify for the ballot. The same sponsors refiled an updated version in January 2005 (the IJAA of 2006), which received an equally negative AG review and also did not qualify.
Q: What is the Judicial Council the proposal would have abolished?
A: Idaho's Judicial Council is established by Idaho Code Title 1, Chapter 1. It is responsible for selecting and recommending qualified judicial candidates to the Governor when judicial vacancies occur, and for investigating allegations of judicial misconduct.
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, even if alleged to be in error or malicious. The doctrine is recognized in Idaho and in federal law (Stump v. Sparkman, 435 U.S. 349 (1978)). The IJAA's elimination of judicial immunity would expose Idaho judges to civil liability for their judicial decisions, a sweeping change with substantial constitutional implications.
Q: What are "JAIL 4 Judges" initiatives?
A: A nationwide series of judicial-accountability proposals sponsored in the early-to-mid 2000s. Their core theme was that judges had become unaccountable for "judicial misconduct" and needed an external citizen-grand-jury body with broad powers to review any judicial decision and impose sanctions or remove judges. South Dakota voters rejected a JAIL initiative (Amendment E) in 2006 by 89%. Most other state versions failed at the signature-gathering stage.
Q: Why is creating a fourth branch by statute unconstitutional?
A: Because Idaho Const. art. II, § 1 expressly enumerates the three branches and provides that no person or collection of persons may exercise powers properly belonging to one branch except as the constitution permits. A new branch must be added by amending the constitution, not by passing a statute. An initiative is an exercise of legislative power, and the legislative power cannot itself create a new constitutional branch.
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 creates three branches with mutually exclusive powers, except as the constitution otherwise provides.
This 2003 review is the second of three Certificates of Review the AG issued on the IJAA series in Idaho (the first, dated January 30, 2003, was attached to this review and is not separately available; the third was the April 4, 2005 review of the IJAA of 2006).
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)
Case:
- M'Culloch v. State of Maryland, 17 U.S. 316 (1819)
Related certificates:
- ID AG Cert. 1/30/2003 (incorporated by reference; not separately available)
- ID AG Cert. 4/4/2005 (the later iteration, IJAA of 2006)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C060403.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
June 4, 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 May 7, 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 certificate then walks through, in order: Ballot Title; Matters of Substantive Import (Introduction listing the proposal's five elements; Departments of Government, with the fourth-branch analysis; A Note About Word Choice); and Conclusion incorporating the January 30, 2003 Certificate by reference. The full text runs approximately 3 pages and is available in the linked PDF.]
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import, and that the recommendations set forth above have been communicated to petitioner Rose Johnson by deposit in the U.S. Mail of a copy of this certificate of review.
Sincerely,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Brian P. Kane
Deputy Attorney General