Idaho Supreme Court hopefuls face off in forum

BOISE – The four candidates in a rare contested race for an open seat on the Idaho Supreme Court faced off in a two-hour forum this week sponsored by the state bar, and got a chance to highlight their differences and what each would bring to Idaho’s highest court.

“The Idaho judiciary is not a legislative body. … That’s not the role of the judiciary, and we have to honor that separation,” said candidate Robyn Brody, an attorney from Rupert. “But at the same time, I think it’s imperative that when the Idaho Legislature oversteps its bounds, that we recognize that at its core, it’s about protection of individual freedoms, and we have to be willing as justices to stand up.”

Brody said she brings a “rural perspective” to the court, as an attorney in private practice in a small town, who handles everything from divorces to closing a $3.5 million real estate deal for a FedEx cargo facility at the Twin Falls airport.

Candidate Curt McKenzie, a seven-term state senator from Nampa, highlighted his legislative service; his position as head of the Pacific Northwest Economic Region, a group that works on economic development for northwestern states and Canada; his work with local charities; and his work in law firms both large and small.

“I’ve had civil, criminal, I’ve worked with large law firms all the way down to a sole practice, done civil rights litigation, criminal practice both representing the state and representing individuals, as well as worked on complex civil litigation,” McKenzie said. “I think that’s an important background to have, as well as a history of public service, not just the Legislature but in the community.”

Candidate Clive Strong, head of the natural resources division of the Idaho Attorney General’s office, said, “I have had the opportunity to work on some of the most important and some of the most significant issues that have confronted the state of Idaho over the last 30 years.” Those included the Swan Falls case, he said, in which “the very essence of Idaho was at stake, the issue of whether the power company or the state would control the waters of the Snake River Basin.”

That case led to the massive Snake River adjudication, for which Strong was the state’s lead attorney. “I’ve worked in the trenches, I’ve worked throughout the state,” he said. “I’ve also had the opportunity to litigate at the highest levels,” including two cases that went to the U.S. Supreme Court on issues of state sovereignty.

Candidate Sergio Gutierrez, now a judge on the Idaho Court of Appeals, which is the state’s second-highest court, noted that he was first appointed a judge by Gov. Cecil Andrus, a Democrat, and then was appointed to the Court of Appeals by Gov. Dirk Kempthorne, a Republican. “I emphasize the role these men played in my judicial career, because although they may have had different political views about many things, they each understood and valued the importance of an independent and nonpartisan judiciary,” he said.

Gutierrez also spoke of his “personal life experience, that of an illegitimate child born into poverty and dysfunction. An immigrant. … A high school dropout who has known both hunger and homelessness. … A Job Corps graduate and a father and grandfather who understands that the American dream is not so much about achievement as opportunity. I deeply believe this to be true, that those who are called to sit in judgment on Idaho’s highest court must be experienced not only in the law, but in the many paths a life can take.”

Here’s how each of the candidates responded to two of the questions posed by moderator Marc Johnson:

Biggest single challenge facing Idaho’s courts:

Clive Strong: “Restoring public confidence in the Idaho judicial system itself. … What we see are a lot of litigants turning now towards mediation as an alternate solution,” which may be appropriate in some cases, he said. “But the consequence of mediation is it’s done in private, it doesn’t create the precedent that is useful in addressing future disputes. We need the current body of case law.” If Idaho can’t “get people to the point that anyone can afford to come to the court and get relief … we run the risk of losing that body of case law that we need.” He said possible solutions include “looking to try to triage cases; not every case has to be litigated to the ends of the earth.” And, he said, “Some are simpler cases which we can have a streamlined process for.”

Curt McKenzie: “I think it’s ensuring our judges don’t have an overwhelming case load, getting candidates that are qualified and have proper experience, and continuing to develop our specialty courts, drug courts, domestic violence courts, those types of things.”

Robyn Brody: “From my perspective, it’s surely the implementation of the new computerized court system. Getting all the counties up and running, I think, is an enormous task. The resources are slim in terms of dollars and people, and frankly, we’re bumping up against mindsets and challenges and people’s resistance to technology.”

Sergio Gutierrez: “I would say it has to be the access issue, as the cost of litigation and the cost of hiring a representative has gone up, many folks, it’s not a question of reducing the cost, it’s a question of not even believing they can come to the doors of our courts. Chief Justice Jim Jones has spearheaded the pro bono efforts around the state. But the need is much bigger than that. … I think really, the court has to take that on and put forth a strategy that will allow the doors of the courthouse to be open to everyone.”

On the current court’s lack of a woman or person of color:

Clive Strong: “I think diversity is important and is a factor that should be considered. But I also take into account other forms of diversity … in terms of experience, background, so that we get a broad array of input that allows us to better understand each other’s points of view. Yes, I think it’s an important issue, but it’s one that’s not just based on gender or ethnicity.”

Robyn Brody: “That’s a tough question for me, since I’m the only one up here in a pink suit, and it’s been almost 10 years since we’ve had a woman sitting on the bench. It’s hard for me to remember that, since when I started practicing law, Linda Copple Trout was actually the chief justice. I’ve never been about my gender. … I’ve always been about being the best, making myself the best lawyer that I can be. My philosophy as a lawyer is that when a client walks in, I want them to be better off when they walk out the door.”

Curt McKenzie: “I think that’s important, but also include diversity of background, academic background, diversity of experience as an attorney, types of practice, the types of cases, I think those are all important things to think about when we select a justice.”

Sergio Gutierrez: “Excellent question. I was a new district judge when Justice Linda Copple Trout asked me to head the fairness and equality committee. And it weights heavy on me. When I became a judge in 1993, I thought, well, it’s going to be five years, we’ll see another Latino on the bench. I’m still waiting. And it’s important in this instance, that it really impacts the integrity of the court system. Imagine, as a lawyer going to the jury, and it not being reflective of your community. lt’s pretty simple. … What happens when you add diversity? I prefer to call it inclusion, as opposed to diversity. And that is that you widen the lens of justice.”