Could the Governor of Idaho appoint a sitting judge to the Children's Trust Account Board?

Opinion 85-5: Separation of powers blocks judicial appointment to the Children's Trust Account Board

Plain-English summary

The Director of the Department of Health and Welfare asked whether the Governor could appoint a sitting judge to the Children's Trust Account Board, created by the 1985 legislature and codified at Idaho Code § 39-6001 et seq. The AG concluded the answer was no. The dispositive provision was article 2, section 1 of the Idaho Constitution, which divides government into legislative, executive, and judicial departments and bars members of one branch from exercising powers belonging to another, "except as in this constitution expressly directed or permitted." The Children's Trust Account Board is an executive-branch body. Putting a judge on it would have the judge exercising executive powers, and no constitutional provision expressly authorizes that crossover.

The opinion noted that article 5, § 7 (which bars Idaho Supreme Court justices from holding "any other office of trust or profit" during their term) was not the right tool here. Jordan v. Pearce had held that provision applies only to Supreme Court justices, not to trial judges, and its purpose is to prevent justices from aspiring to other offices, not to delineate strict separation of powers.

Currency note

This opinion was issued in 1985. 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.

Background and statutory framework

The Children's Trust Account Board was created by the 1985 legislature to administer funds collected for child abuse prevention and treatment. Article 2, § 1 of the Idaho Constitution states:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

Article 5, § 7 separately provides that no Supreme Court justice shall be eligible to any other office of trust or profit during the term for which he was elected.

What the AG concluded at the time

Article 5, § 7 was not the dispositive provision

The opinion explained that article 5, § 7 was adopted at the constitutional convention without debate, and that the parallel debate over a similar restriction on the governor (which failed) revealed the purpose: preventing officeholders from using their office as a stepping stone to a different one. Jordan v. Pearce limited the section to Supreme Court justices specifically. The provision did not address what role a sitting judge could fill outside their judicial duties.

Article 2, § 1 controls separation of powers

Drawing on the federal foundations (the Federalist Papers, Montesquieu's Spirit of the Laws as filtered through State v. Barker (Iowa 1902) and State v. Brill (Minn. 1907)), the AG explained that separation of powers is the rule whether or not state constitutions spell out specific cross-branch prohibitions. Federal courts have uniformly held that only judicial functions may be imposed on the judiciary (Brill).

In Idaho, the Children's Trust Account Board is an executive-branch creation. Administering a trust account, distributing funds, and providing oversight are executive functions, not judicial ones. Putting a judge on the Board would have the judge participating in executive decision-making, which article 2, § 1 forbids.

No express constitutional authorization

The exception in article 2, § 1 ("except as in this constitution expressly directed or permitted") would have to point to a specific constitutional provision authorizing judges to serve in executive bodies. None applies to the Children's Trust Account Board.

Common questions

Could a retired judge serve on the Board?

The opinion addressed sitting judges. A retired judge would not be "exercising powers properly belonging to" the judicial branch any longer and would not raise the same concern.

What about magistrates or part-time judges?

The opinion did not draw a distinction. It treated the question as one about members of the judiciary in general. The Idaho Supreme Court could reach a different conclusion in a particular case based on the nature of the judicial role.

Could a judge serve on a purely advisory body?

The opinion did not address this carve-out. Other states have drawn lines between adjudicative or advisory roles and substantive executive duties; Idaho's article 2, § 1 is broad.

Citations

• Idaho Constitution art. 2, § 1 — separation of powers.
• Idaho Constitution art. 5, § 7 — Supreme Court justices and other offices.
• Idaho Code § 39-6001 et seq. — Children's Trust Account.
• Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419 (1967) — article 5, § 7 limited to Supreme Court justices.
• State v. Brill, 111 N.W. 633 (Minn. 1907) — federal courts uniformly hold that only judicial functions may be imposed on the judiciary.
• The Federalist Nos. 47, 78 — foundational separation-of-powers texts.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP85-05.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL
BOISE 83720
TELEPHONE (208) 334-2400

ATTORNEY GENERAL OPINION NO. 85-5

TO: Rose Bowman, Director
Department of Health and Welfare
Statehouse Mail

Per Request for Attorney General Opinion

QUESTION PRESENTED:

Is the Governor of Idaho permitted to appoint a member of the judiciary to the Children's Trust Account Board?

CONCLUSION:

No. An appointment of a member of the judiciary to the Children's Trust Account Board would violate the separation of powers clause, article 2, section 1 of the Idaho Constitution.

ANALYSIS:

Your letter asks if it is permissible for the governor to appoint a sitting judge to serve on the Children's Trust Account Board, created by the 1985 legislature, codified at Idaho Code § 39-6001 et seq. The question is primarily one of separation of powers.

Little guidance is provided in that regard by article 5, § 7 of the Idaho Constitution, which states:

No justice of the Supreme Court shall be eligible to any other office of trust or profit under the laws of this state during the term for which he was elected.

This provision of the constitution was adopted without debate at the constitutional convention. Vol. II, p. 1522. The meaning of the provision is, however, clear from the debate of a similar provision which was proposed regarding the governor and other constitutional officers. The sponsors of that proposal, which failed to pass, had argued that such a restriction would serve three purposes: first, it would prevent the governor from using "the patronage of his office and the influence of his position, for the purpose of lifting himself into some other office, generally that of senator of the United States"; second, it would prevent constitutional officers, especially attorneys, from seeking less prestigious but more highly paying offices; finally, it would insure stability and continuity in government because, in the opinion of the sponsors, "when the people elect a man to any office he should undertake to fill that office during the term for which he was elected, and not when he gets into office merely use it for something else." Proceedings of Constitutional Convention, Vol. I, pp. 426-29.

Article 5, § 7 sheds no light on the question presented in your letter. For one thing, as the Idaho Supreme Court has stated, "this provision is applicable only to justices of the Supreme Court," not to trial judges. Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419 (1967). More importantly, the purpose of the provision, even as to supreme court justices, is to prevent a sitting justice from aspiring to another office during his term of office, not to map the terrain dividing strict separation of powers from permissible overlap of powers.

Instead, the answer to the question posed in your letter must be found in article 2, section 1, of the Idaho Constitution, which states in full:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

The framers of the Idaho Constitution gave very little consideration to the separation of powers provision embodied in article 2, section 1. In fact, during the proceedings of the constitutional convention, there was no article regarding separation of powers in the papers before the convention delegates nor in any committee thereof. Judge Beatty offered the section under a suspension of the rules because the committee on revision had discovered that there was:

no article in here such as is provided in nearly all constitutions for the distribution of the powers of the legislative, executive and judiciary; and I have prepared, or rather I have quoted from another constitution, what is the usual provision, . . .

Under suspension of the rules, the article was adopted unanimously.

The source of the separation of powers doctrine at the federal level predates the U.S. Constitution. As narrated by the Iowa Supreme Court in State v. Barker, 89 N.W. 204 (1902), the founding fathers had in mind Montesquieu's Dissertation on the Spirit of the Laws and similar reasoning in The Federalist Papers (Nos. 47 and 78). The Constitution of the United States does not itself contain any express separation of powers doctrine, "but the federal courts have uniformly held that only judicial functions may be imposed upon the judiciary." State v. Brill, 111 N.W. 633, 642 (Minn. 1907).

[The opinion proceeds to apply the separation of powers doctrine to the Children's Trust Account Board, concluding that the Board's duties are executive in nature; that no constitutional provision expressly authorizes a member of the judicial branch to exercise such executive powers; and that the Governor therefore cannot appoint a sitting judge to the Board.]

DATED this 21st day of October, 1985.

ATTORNEY GENERAL
State of Idaho