Last legislative session, lawmakers frustrated with the process the Idaho Judicial Council deployed to fill judicial vacancies passed a law to change things up a bit. One of those reforms required the council, when it reports to the governor with names of candidates for the court, to “provide to the governor a report summarizing the factors considered in including each person on the list.
“Such factors may include references to comments and ratings received by the council regarding each nominee as well as other qualifications and considerations that the council considered in making its recommendations; provided however, that a comment that is not a public record or subject to disclosure pursuant to court rule shall not be disclosed in this report,” the new law says.
In addition, lawmakers amended the state’s public records law to say, “The judicial council ratings and tabulated scores from attorney questionnaires of candidates for a judicial vacancy whose names are submitted to the governor and the summary prepared pursuant [to law] shall be public.”
Very clear. And so, on Monday, I filed two public records requests, one with the governor and the other with the Idaho Judicial Council, asking for a copy of the report to the governor. To its credit, the governor’s office produced what appears to be a complete copy of two separate letters from Judicial Council, including a summary of its findings and the ratings of the four candidates named as potential Supreme Court justices.
The Judicial Council, on the other hand, stalled and, as of this writing, continues to obfuscate. I emailed the council on Monday: “Hello, I'm requesting from you the report submitted to the governor under Idaho Code 1-2102(4) in regard to the candidates for the state supreme court. Thank you in advance.”
I received this reply about 24 hours later from Jeff Brudie, the executive director of the Judicial Council: “Good morning, the report you requested was provided to the Governor along with the candidate files for the 4 listed individuals. I believe that report would therefore be the recipient's to release. Please contact the Governor's office.”
Everyone who has ever requested documents from a state agency knows this is not legally appropriate. My response was to point out that “the request is being made of you, consistent with Idaho's public records law. If you retain a copy of the letter, it is a public record, and I'm asking you for it.”
Brudie “thanked” me for the clarification but then still waited for me to prod him again for a response before producing a letter.
I received just one of the two letters from the Judicial Council and none of the ratings.
To be sure, neither letter is terribly illuminating when it comes to the “factors considered” when naming candidates for possible appointment to the state’s highest court. Did the council include Lawrence Wasden on its list because of his years of public service? Or Cynthia Meyer, whom Gov. Little ultimately chose for the position, because of her warm smile and administrative experience? No one knows, and no one ever will know because of the council’s slapdash manner of reporting its recommendations.
What’s so hard about the council producing the letters it sent the governor? What’s so hard about releasing the candidate ratings, as required by law? Why can’t either letter, along with candidate ratings, go on the council’s website for everyone to see?
This obfuscation represents a pattern of untransparent behavior. What’s so hard about keeping the videos of its interviews with judicial candidates online instead of deleting them? Why must the Judicial Council be so guarded about its interviews, selections, and reasoning for its actions?
The council’s members harp on “confidence in the courts” during their interviews with judicial candidates. It’s a theme with them. Yet the council’s own actions undermine that very thing.
