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OPINION: Will the Legislature be able to financially starve the courts into submission?

by JIM JONES
| April 14, 2023 1:00 AM

No doubt about it. A large swath of the Legislature is still honked off about the Idaho Supreme Court’s 2021 decision overturning a raw legislative power grab. In reaction to voter approval of Reclaim Idaho’s initiative to expand Medicaid coverage, indignant legislators passed a law designed to make it virtually impossible for the people to ever again exercise their constitutional right to legislate. The Supreme Court issued a well-reasoned opinion, affirming the constitutional right of Idahoans to make laws they want when the Legislature stubbornly refuses to act. Legislators have retaliated by denying cost-of-living pay raises for our judges.

Last year, the Legislature provided 7% cost-of-living pay increases to most state employees, including court staff members, but failed to provide any increase for Idaho judges. Legislators did approve a bill that made substantial changes to the selection process for district and appellate court judges, tying it to a judicial pay increase for judges. The bill would have increased high court salaries by only 2%. The governor vetoed the bill because of obnoxious changes to the judge selection process. Even though legislators had time to pass a separate pay raise for judges, they refused to act.

Legislative observers thought the lawmakers would correct their ill treatment of judges in the 2023 session, but that was not in the cards. In January, Rep. Bruce Skaug, Chairman of the House Judiciary Committee, said the judges “were robbed” last year, but the Legislature took no action to require the robbers to provide restitution to the judges. The Legislature did approve a pay increase for judges this year, which boosted pay for Supreme Court Justices by 3%, while all other state employees got 4%. That leaves an 8% cost-of-living gap in pay for high court judges.

A case can be made that the Legislature has violated Article 5, section 27 of the Idaho Constitution by failing to provide cost-of-living increases to judges during these last two years. While the provision allows the Legislature to diminish or increase judicial compensation, it may not do so during a judge’s term in office. When the Legislature determines that an increase in compensation is necessary for state employees to compensate for an increasing cost of living, haven’t legislators diminished the compensation of the only state employees who were deprived of the increase? It would be interesting to see how a court might decide such a case.

Make no mistake, the Legislature has long been aware that judicial recruitment, particularly for district court positions, has been hampered by the low statutory salaries. The current salary for Idaho’s district judges, who handle felonies and heavy-duty civil cases, ranks 49th in the nation, as compared to other states’ general jurisdiction judges. With the 3% increase this year, Supreme Court Justice will make $165,212, which equates to about $79 per hour. The Legislature was more than happy to pay $470 per hour to the private lawyer it hired to represent it in the initiative lawsuit that it lost in the Supreme Court in 2021. In comparison with another government position, the Attorney General’s new Solicitor General, who is not even authorized to practice law in Idaho courts, is making $158,000. With the 7.5% pay raise for the AG’s office this year, he will receive about $170,000, almost $82 per hour. District and appellate judges take a substantial pay cut to serve the people. They need to be compensated adequately if we hope to keep the remarkable judiciary that we currently have.

The Take Back Idaho PAC, which supported reasonable, pragmatic Republicans in the 2022 primary election, will make judicial pay a high priority as it gears up for the GOP primary next year. Hopefully, those in the Legislature who want to financially starve the courts into capitulating to their way of thinking will take heed. Idaho has a remarkably even-handed, competent judiciary, but it will not remain so if vindictive lawmakers keep trying to make judgeships financially unattractive. Idaho’s judges need the strong support of the public to keep our justice system operating as the founders intended, which includes acting as a check on power abuses by the other branches of government. All fair-minded people need to speak up for our judges.

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Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General and 12 years as a justice on the Idaho Supreme Court. He is a regular columnist for The Hill online news. He blogs at JJCommonTater.com.