If you pay peanuts for a job, you’re likely to attract monkeys

By Jim Jones
JJ Commontater

Jim JonesJudges are the heart of the American system of justice. Faith in our court system depends upon having judges who are competent and impartial. That, in turn, requires thorough vetting of judicial candidates to put the best qualified people on the bench. For over 50 years, Idaho has had procedures in place to ensure the appointment of highly qualified judges at every level of the court system.

Magistrate judges, who handle misdemeanors and a wide range of specialty cases, are vetted and appointed by regional magistrate commissions. District and appellate judges are thoroughly vetted by the non-political Idaho Judicial Council. The Council sends a list of up to four candidates for each position to the Governor for selection of the finalist.

The system has worked well. Former Governor Butch Otter, who appointed over 55 district and appellate judges during his 12 years in office, regularly received praise from other governors across the country for the high quality of Idaho’s judiciary. During his eight years as Chief Justice of the Idaho Supreme Court, Roger Burdick received similar compliments from his high court colleagues from other states.

While the appointment process is vitally important to a quality judiciary, it is critical that the state offer a compensation and retirement package that is attractive enough to bring in a significant number of judicial candidates. The package must be sufficient to ensure a decent standard of living for candidates who are making at least twice as much in private practice. That is where Idaho’s selection process has begun to fail. District court positions are the hardest to recruit for because of long hours, high stress and early burnout. Candidates must have 10 years of experience and most of those lawyers are getting close to their peak earning capacity. They are the highly qualified candidates we want and need to preside over our toughest, most challenging civil and criminal cases.

Starting in 2021, the Judicial Council has averaged less than five applicants for the 16 district court openings. Previously, it was not unusual to get twice as many applicants for a vacancy. Part of the problem is that district court judges must stand for a possibly-contested election in the low turn-out primary every four years. Magistrates run every four years in a no-contest retention election. Magistrate openings, which pay $12,000 less than district court, generally get more than twice as many applicants.

But compensation is the big problem with recruitment for district and appellate court positions. Idaho’s judicial salaries rank 49th in the nation. Last year we lost a talented Supreme Court Justice and a highly-regarded Magistrate Judge in Bonneville County because of the low pay. The pay for high court justices equates to $79 per hour, for district judges it is $72 per hour and for magistrate judges it is $69 per hour. In contrast, the Legislature often hires counsel to represent it in court for more than $470 per hour.

In the last two years the Legislature has considered legislation to give a partisan slant to the Judicial Council process and to chip away at the retirement package that has previously attracted candidates to apply for district and appellate positions. They have never expected great wealth, but they have expected certainty as to the extent of the sacrifice they make in compensation in order to perform public service.

To add insult to injury, judges were the only public employees who did not receive a seven-percent cost-of-living increase in 2022. Last January, Representative Bruce Skaug, Chairman of the House Judiciary Committee, proclaimed that judges “were robbed” for the slight. Unfortunately, the Legislature failed to provide restitution for the robbery. A good case could be made that the theft violated a provision of the Idaho Constitution prohibiting the reduction of judge’s compensation during their term of office, but that is for a later column.

The fact is that we risk getting enough qualified candidates for judicial positions unless there is an immediate and substantial pay raise for all judges. It makes no sense to have judges deciding complicated cases that vitally affect the lives and fortunes of litigants where lawyers for the parties may well be receiving many times the $69 to $79 per hour that the judges are being paid. A ten percent across-the-board increase for judges, in addition to any cost-of-living increase that other state employees might receive, is essential to get more highly-qualified lawyers to apply. And the Legislature should cease its tinkering with judicial election and retirement laws.

As per the old saying, if we continue to pay peanuts to our judges, the judicial selection process may well be swamped by unqualified monkeys.