OPINION: A law firm should not malign the judge for its own bad lawyering

The publicist for Attorney General Labrador recently maligned federal judge Lynn Winmill for his July 31 decision prohibiting the AG from prosecuting doctors who refer patients to other states for abortion pills and services. Labrador sent an opinion letter to a legislator on March 27, saying that Idaho doctors could be charged with a felony for doing so. For reasons unknown, Labrador withdrew the letter seven days later.

Planned Parenthood sued Labrador to prevent the enforcement action called for in his letter. When the matter was argued before Judge Winmill on April 24, Labrador’s Deputy AG (DAG) claimed that doctors would not face charges because the letter had been withdrawn. However, he asserted that Labrador would not disavow the opinion. The DAG tied himself in knots trying to explain why doctors would not be prosecuted even though Labrador stood by his opinion letter.

In his July 31 decision, the judge hinted that Labrador might have won, had he simply given assurance that he would not be filing criminal charges as implied in the letter. His DAG’s refusal to disavow the letter might be characterized as Labrador conceding the need for injunctive action or, in more graphic terms, shooting himself in the foot.

It took a lot of nerve, then, for Labrador’s publicist, Beth Cahill, to imply that the judge’s decision was based on bias for Planned Parenthood. She proclaimed: “In his 28-year career you’d be hard-pressed to find a time when Judge Winmill has ruled against Planned Parenthood, so his decision is not surprising. Judge Winmill wants to restrain a power we don’t possess.” She is wrong on both counts. First, Judge Winmill’s past decisions regarding Planned Parenthood have been correct on the law. Second, given the broad overreach and poor wording of Idaho’s abortion statutes, the AG does have the apparent “power” to bring charges as per his letter, even though there are serious questions about whether the charges would stand up in court.

The publicist for the largest law firm in the state has no business maligning the judiciary in Idaho, particularly when her claims are false. The AG lost in court because of bad lawyering, not because of any bias or misconduct by the judge. Even if the judge had erred, the AG is an officer of the court and should not use the power of his office to unfairly malign the judge. Judges don’t have the ability to respond to unfair charges.

And we should not lose sight of the fact that a judge who stands up for the rule of law often makes decisions that go against his personal values. Judge Winmill was called upon to do just that in 2011 when he ruled that the Republican Party could exclude all but registered Republicans from its primary election. Reading between the lines, it was clear the judge had trepidations about the decision. He said the closed primary would have the “very real and immediate effect of…producing more ideologically extreme candidates.” He obviously ruled based upon his view of what the law required, setting aside any personal beliefs. That’s what judges do when they respect the rule of law.

The extremists have rejoiced over Judge Winmill’s closed primary decision, using it to oust reasonable Republicans and put extremists in control of the GOP. Party chair Dorothy Moon now proclaims that the Party is a “private club” and has the right to purge anyone who has the courage to stand up to her extremist branch of the Party.

The public should not put up with lawyers or law firms that falsely scapegoat judges for their own failings. In over 50 years as an Idaho lawyer, I’ve known of a few lawyers who blame the judge when they lose in court because of their bad lawyering. It is a blight on the profession. All lawyers are officers of the court and expected to comport themselves with dignity toward the judiciary. To have the Attorney General’s office falsely questioning the integrity of a judge through its megaphone is a violation of that ethical duty. Those who support the rule of law should call out that kind of abusive conduct. In the meantime, the AG’s office should make a sincere apology to the judge.

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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.