What did Idaho's AG say about the 'Idaho Judicial Accountability Act of 2006' ballot initiative, the second JAIL-style judicial-accountability proposal aimed at Idaho?
Plain-English summary
This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed January 10, 2005, by Norma Batt and Rose Johnson titled "The Idaho Judicial Accountability Act of 2006" (IJAA). It was the second judicial-accountability initiative the same sponsors had filed in Idaho; the AG's June 4, 2003 Certificate of Review on the IJAA of 2004 was incorporated by reference into this one.
The proposal would have:
1. Abolished the Judicial Council;
2. Created the "Idaho Judicial Accountability Commission" (renamed from the prior "Special Grand Jury") empowered to review any decision made in any court, review complaints of judicial misconduct, and appoint "special prosecutors";
3. Repealed Idaho Code Title 1, Chapter 1 (Judicial Council);
4. Repealed Idaho Code § 1-2003;
5. Imposed limitations on judicial immunity;
6. Amended Idaho Code §§ 19-4201A, 19-4202, 19-3945, and 2-215;
7. Created procedures for the removal of judges.
The AG flagged two fatal constitutional problems:
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 exercise powers properly belonging to all three established branches: legislative (creating an entity, appropriating funds), executive (appointing special prosecutors, art. IV powers), and judicial (reviewing court decisions, art. V powers). The interference with and assumption of powers of coordinate branches by another is "anathema to the basic concepts of Idaho's constitutional representative democracy."
Single-subject violation. Idaho Const. art. III, § 16 requires every act to embrace one subject. The eight pages of single-spaced text covered the Commission's creation, appropriations to the Commission, removal procedures for judges, criminal causes of action, jurisdiction over habeas-corpus actions, and changes to juror payments, among other matters. The AG cited Hailey v. Huston, 25 Idaho 165 (1913), for the proposition that appropriations are typically distinct acts that should be separate from other matters.
Stylistic critiques. The proposal described the U.S. Constitution as "the 1789 Constitution for the United States of America including the 1791 Bill of Rights," which the AG called meaningless under M'Culloch v. Maryland, 17 U.S. 316 (1819). The Declaration of Independence, also referenced, 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 2005. 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 Idaho Code sections and constitutional provisions cited remain largely in force, though specific subsections have been amended.
Common questions
Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. Idaho's earlier (2003) IJAA proposal also failed to qualify for the ballot. The AG's strong negative review of the constitutional defects, repeated across multiple iterations, did not encourage signature-gathering.
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 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 of government" by statute or initiative 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 (see also Williams v. State Legislature, 111 Idaho 156 (1986)).
Q: What's the relevance of the M'Culloch citation?
A: M'Culloch v. Maryland, 17 U.S. 316 (1819), is the foundational U.S. Supreme Court decision recognizing that the U.S. Constitution is the supreme law of the land. The AG cited it to point out that describing the Constitution as "the 1789 Constitution for the United States of America including the 1791 Bill of Rights" adds nothing of legal substance: the Constitution and its amendments are simply "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 creates three branches with mutually exclusive powers, except as the constitution otherwise provides. Idaho Const. art. III, § 16 (single-subject rule) requires every act to embrace one subject and matters properly connected.
Two AG Certificates of Review address the IJAA series: this one (February 4, 2005, dated April 4, 2005, on the IJAA of 2006) and the earlier one (June 4, 2003, on the IJAA of 2004). The 2003 certificate is incorporated by reference into this one and was attached to it.
Citations and references
Statutes and constitutional provisions: see the list at the top of the file.
Cases:
- M'Culloch v. State of Maryland, 17 U.S. 316 (1819)
- Hailey v. Huston, 25 Idaho 165 (1913)
Related certificate: ID AG Cert. 6/4/2003 (Idaho Judicial Accountability Act of 2004, the earlier iteration).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C020405.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
February 4, 2005
The Honorable Ben Ysursa
Idaho Secretary of State
HAND DELIVERED
Re: Certificate of Review – Idaho Judicial Accountability Act of 2006
Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 10, 2005. 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 seven elements; The Proposed Initiative Likely Violates the Separation of Powers, including the fourth-branch analysis; Article III, § 16 Prohibits Consideration of More than a Single Subject; A Note About Word Choice); and Conclusion incorporating the June 4, 2003 Certificate by reference. The full text runs approximately 4 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 petitioners Norma Batt and 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