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Senate Bill 1382 — Judicial council, appointments

Senate Bill 1382 — Judicial council, appointments

Wayne Hoffman
March 11, 2022

Bill Description: Senate Bill 1382 would make some records in the judicial appointment process public but make others confidential; it would also lessen the possibility of “stacking” the list of nominees by the Judicial Council.

Rating: -1

Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency, accountability, or election integrity? Conversely, does it increase public access to information related to government activity or increase government transparency, accountability, or election integrity?

This legislation would open to public scrutiny certain records about judicial candidates. The bill says that “the judicial council rating of candidates for a judicial vacancy whose names are submitted to the governor and the tabulated scores from attorney questionnaires on the qualifications of those candidates shall be public.” This mirrors similar language in House Bill 600.


Senate Bill 1382 has provisions that go beyond House Bill 600. This legislation l would require the council to “disclose to the applicant any written information or comments provided to the judicial council as part of or to be considered in the application and interview process, including the source of any such information. Such information shall not be publicly disclosed in any manner by either the judicial council or the applicant.” 

The rigidity of the privacy provision is the antithesis of government transparency, and it sets up a situation wherein a government body has information before it, but keeps it as a closely guarded secret. Indeed, any public record that makes mention of “information” about an applicant would have to be kept confidential and redacted from a public record.


Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? 

The proposed statute also violates the constitutionally protected rights of an attorney applying for a judicial vacancy. Its plain reading says that the applicant is barred from speaking about or publicly disclosing information other lawyers have provided to the Judicial Council, which represents a restraint on the applicant’s constitutionally protected rights. 


Analyst note: This legislation also would change state law so that the governor may reject a list of the three candidates submitted to him for a judicial vacancy, compelling the Judicial Council to submit a new list of potential nominees. The purpose of that change is to prevent the council from “stacking” its list so that the governor is forced to select from candidates who have the same attributes. There are some benefits to this change, but perhaps some concerns, also. For example, it would give the governor more power over the judicial selection process. It is important to remember that, as the governor is the elected head of the executive branch, he arguably should have more say than the unelected Judicial Council.

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