Idaho’s attorney general must act with civility toward the judiciary

By Tom Arkoosh

Tom ArkooshIdaho lawyers are expected to act with respect, dignity and candor toward judges and the court system. They are presumed to understand that a “correct” interpretation of the law is often uncertain. Judges have the job of deciding the law in cases brought before them. Most often, one litigant wins and the other loses. If every loser’s lawyer made unfounded public utterances against the presiding judge, it would be extremely corrosive of the rule of law.

While a lawyer certainly may critique a court ruling on the legal merits, the Idaho Rules of Professional Conduct, which apply to all Idaho lawyers, require that lawyers “demonstrate respect for the legal system and for those who serve it,” including judges. Lawyers may not make false statements regarding the “integrity of a judge.” That includes making ugly misstatements regarding the ramifications of a court decision.

Attorney General Labrador stepped way over the line when he falsely claimed a December 26 decision made by federal judge Lynn Winmill will allow “young boys and girls” to be “experimentally treated with mastectomies, penectomies, puberty blockers, and other irreversible and untested treatments.” He raised the specter of “mutilating procedures” and “experimental surgeries.” He equated the decision to “the eugenics movement and forced sterilization of intellectually disabled people.” These over-the-top, alarmist charges are completely unwarranted.

Judge Winmill did not approve any mutilating procedures. He merely ruled that a new Idaho law which criminalizes medically-accepted treatment of transgender youth is violative of the U.S. Constitution. Other federal district courts have made similar rulings. The decision is well-reasoned and in accordance with generally-accepted constitutional law. The evidence established the medical psychological benefits of gender-affirming care for Idaho adolescents. There was no competent evidence of harm to Idaho minors.

The decision did not change any law that has been in effect since Idaho attained statehood. When the law was considered and passed last year, there was no instance brought to light of any surgical procedure previously conducted or then contemplated of the nature claimed by Labrador–no mastectomies, penectomies or experimental surgeries. All of that false demagoguery was a figment of Labrador’s imagination. It was obviously designed to smear the judge and divert attention from the Attorney General’s embarrassing court loss. That loss was widely anticipated in the legal community.

Legislative proceedings on the transgender bill disclosed that such surgeries are not being conducted on minors in Idaho. Rather, as Judge Winmill found, puberty blockers and gender-affirming care is being provided by Idaho doctors in accordance with guidelines accepted by every major medical organization in the United States. Reputable Idaho doctors have attested that non-surgical treatment is essential to the well-being of transgender kids.

Taking cheap shots at judges to score political points or to deflect attention from a court defeat is unacceptable conduct for lawyers licensed by the State of Idaho. Labrador is a repeat offender, having previously maligned Judge Winmill for a court loss that was the result of Labrador’s own incompetence. Last March, he wrote an opinion saying Idaho doctors could be prosecuted for referring patients to other states for abortion pills and service. Days later he withdrew the opinion, but was sued on it. At the court hearing, he could have won, but his deputy refused to disavow the opinion, even though it had been withdrawn. It was no surprise that Judge Winmill ruled against Labrador, since he practically invited the ruling. Then his office claimed the judge made a biased ruling.

Labrador’s scurrilous criticism of the judge for the transgender decision was quickly echoed by his supporters at the Idaho Freedom Foundation. IFF president Wayne Hoffman stoked up extremist outrage for what he called “Judge Winmill’s idiotic ruling.”

As expected, the extremist groups picked up the mantle, making all kinds of inflammatory statements vilifying the judge for simply doing his job. Labrador’s unseemly actions clearly demonstrate the reasons why lawyers are required to treat judges and the judicial system with truthfulness and respect.

Tom Arkoosh is a former Prosecuting Attorney of Gem County, a long-time Idaho legal practitioner and former candidate for Attorney General of Idaho.

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