Washington Courts

Here is a story regarding an action of Judge Bradbury.  Here.

In the case against Judge Bradbury, Judge Eismann, afer participating in the hearing of the case before the Supreme Court has recused himself.  Apparently he has done so because he thinks that by doing so the federal case which Judge Bradbury has filed will go away.  And, that if it goes away the name of the person who accused Judge Bradbury will not be disclosed or will not have to be disclosed.

Here is what  the Supreme Court of Idaho Blog says:

“ ‘The only reason for obtaining that information [i.e.,who filed the Judicial Complaint against Judge Bradbury] would be retaliation,’ the chief justice wrote in his recusal order. That, he wrote, ‘could have a chilling effect on others who may desire to report possible violations of the law by members of the judiciary.’ So Eismann essentially said he recused himself to remove the basis for the federal lawsuit. Eismann wouldn’t comment on the pending case and said his recusal notice speaks for itself.

The notion that the name of an accuser in the circumstances of a case wherein someone might be deprived of a valuable right, such a right to hold public or make a living from a public office can be kept secret is really disturbing.  In a criminal situation a person has a right to confront his accuser.  This same right exists in other contexts where a valuable right is put in jeopardy.  

In the criminal situation the right is secured by the confrontation clause of the 6th Amendment.  Where a valuable right is involved the right to confront witnesses is protected and secured by the Due Process Clause of the 14th Amendment.   See Lytle v. Dep’t of Licensing, 94 Wn. App. 357, 361, 971 P.2d 969 (1999)  for a Washington case.  I would imagine there is an Idaho case on point.

And, would one not be curious to know who is raising the issue?  Would it not be very curious and perhaps telling of the unconstitutionality of the Idaho Judicial Conduct Council system if a person on the council was the ”secret” accuser, or a friend of someone on the council was the “secret accuser?”

By the way, some students of judicial conduct commissions or council process as they now exist suspect that the commissions and councils use their powers for political purposes and objectives. 

For example, some contend the process in Washington state has been used for political purposes with respect of a Washington Supreme Court justice, Justice Richard Sanders.  But for now that matter will have to await further discussion. To put it simply, Justice Sanders, a true libertarian, is not much liked by the at least some in the core of “ judicial-legal fraternity.”

Sorry, I have to say a bit more: Let me see if I understand this situation: Judge Eismann is the head of the Judicial Council. The Council investigates judges when someone complains of a judge. Most times I am sure the Council dumps the complaint with little or no investigation. In this instance Judge Eismann is heading up the Council when a complaint comes in against Judge Bradbury. The complaint is supposedly made in secret. The Council under the direction of Judge Eismann investigates and the Council, while Judge Eismann is head of the show, files charges against Judge Bradbury.

A hearing is held and Judge Bradbury is found to have violated the rules pertaining to judges in Idaho. Judge Eismann is in the hospital. But he is not in the hospital when Judge Bradbury’s case is appealed and heard by Judge Eismann and his fellow judges of the Idaho Supreme Court.

Judge Bradbury has the temerity to seek a determination by the United States District Court for Idaho as to whether what is happening to him is fair — that is whether he is being accorded due process of law under the Constitution of the United States.

Judge Eismann then recuses himself before the Supreme Court makes a decision. And in doing so complains that the District Court action is being undertaken to get the name of the person who filed the complaint against Judge Bradbury.

Seems Judge Eismann is a bit short on an understanding of the law. One little tidbit of the rules of the system is that a person is entitled to confront his accuser. Another is that people do not have a right to decide cases in which they are involved. Since Judge Eismann is a member of the Judicial Council, he has to recuse himself and should have recused himself before the case was argued.

Would it not be interesting to find out that the person who filed the complaint against Judge Bradbury had some connection to someone who did not want him on the bench, who was not affected by the so-called residency requirement Judge Bradbury is accused of violating, or had no real public interest in the matter?

This situation is a real mess.

Here is how I understand the facts of Judge Bradbury’s complaint and concern for the Idaho judicial system.   See the Spokesman Review article.

In Idaho the “person who chairs the state’s [judicial] council [the group] that disciplines judges presides over the Supreme Court’s review of [the] council’s actions.” Idaho Supreme Court Chief Justice Daniel Eismann heads up both the council and the Supreme Court.

Judge John Bradbury, who has been judged by the judicial committee and whose case has been argued before the Supreme Court thinks Judge Eismann may have a conflict. According to the Spokesman Review Judge Bradbury said “I just think if there’s a dispute between the fox and the chicken, the fox shouldn’t be one of the judges.”

Judge Eismann was not present when the judicial council heard Bradbury’s discipline case in December 2008. But Eismann headed up the council “since six weeks before it reopened a residency complaint against Bradbury in 2007, through its investigation of where Bradbury lives (he has two homes) and its decision to file formal charges against him.” That is to say, the judicial council brings charges, or elects to explore charges on its own on because someone made a charge or charges against a judge, and then brings charges which it then hears. Judge Eismann was the lead judge – the head of the judicial council. One might be a bit concerned about this. Due process comes to mind.

Then Judge Eismann “presided over and participated in the oral arguments at the Idaho Supreme Court” in Judge Bradbury’s case. Then Judge Eismann “recused himself from participating in the decision on Bradbury’s case – but not because of the chief justice’s dual role.”

This,  from the article,  is of sad but near comic interest as far as Judge Eisman is concerned:

Now, well after Eismann presided over and participated in the oral arguments at the Idaho Supreme Court, the chief justice has recused himself from participating in the decision on Bradbury’s case – but not because of the chief justice’s dual role. In a recusal notice filed with the court, Eismann accused Bradbury of using that question in the federal lawsuit to get at a key piece of information that the Idaho Judicial Council refuses to release: the identity of Bradbury’s accuser in the ethics case.

“The only reason for obtaining that information would be retaliation,” the chief justice wrote in his recusal order. That, he wrote, “could have a chilling effect on others who may desire to report possible violations of the law by members of the judiciary.” So Eismann essentially said he recused himself to remove the basis for the federal lawsuit. Eismann wouldn’t comment on the pending case and said his recusal notice speaks for itself.

Bradbury was incensed by Eismann’s retaliation allegation and said he’s never sought retribution against anyone. “By asserting the pretext of retribution, Justice Eismann also betrays a profound personal animus against me,” Bradbury declared.

Betsy Russell of the Spokesman - Review has an article entitled “Case Points Out Judge’s Dual Role“  The article brings out another concern and that is whether the judges and the bar associations should be judging themselves. 

What we are witnessing here is the fact that there is a judicial fraternity which exists in Idaho (and Washington and other states). This fraternity is tied to the legal fraternity, the bar associations. In fact, the bar associations are “an arm of the supreme court” and thus the judicial fraternity.

A person who does not fit into the fraternity or who does not accede to the then current status quo of the fraternity is a threat to the fraternity.

The fraternity will then act to bring the person in line or expel him or her. This is done overtly and covertly, sub silentio. The process is is really one akin to fraternity “black balling.” Except in these circumstances the black balling takes place as group black balling and it is wrapped up in what appears to be “due process.” I say appears to be due process, on close examination it is not. The fraternity of the judiciary and the fraternity of the bar only gives lip service to the notion, and in fact despite the oaths of the judges and lawyers, the majority of them have no idea of the meaning of “due process of law.”