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The Advocate November 2007 The OfficAial Pubdlicatiovn of othe IdcahoaStatetBaer Volume 50, No. 11 November 2007 Attorney’s Oath or Affirmation “I do Solemnly Swear That: (I do solemnly affirm that:) I will support the Constitution of the United States and the Constitution of the state of Idaho. I will abide by the rules of professional conduct adopted by the Idaho Supreme Court. I will respect courts and judicial officers in keeping with my role as an officer of the court. I will represent my clients with vigor and zeal and will preserve invio - late their confidences and secrets. I will never seek to mislead a court or opposing party by false state - ment or fact or law and will scrupulously honor promises and com - mitments made. I will attempt to resolve matters expeditiously and without unneces - sary expense. I will contribute time and resources to public service, and will never reject, for any consideration personal to myself, the cause of the defenseless or oppressed. I will conduct myself personally and professionally in conformity with the high standards of my profession. SO HELP ME GOD. ( I hereby affirm.)” This issue of The Advocate is sponsored by the Idaho Legal History Society FEATURE ARTICLES The 9 Welcome from the Idaho Legal History Society Hon. Gaylen L. Box 11 Idaho’s Founders and Their Mormon Test Advocate Oath MANAGING EDITOR BOARD OF Dennis C. Colson Jeanne S. Barker COMMISSIONERS EXECUTIVE DIRECTOR Andrew E. Hawes, President 16 Titans Tug of War Diane K. Minnich Terrence R. White, Hon. David L. Evans Commissioner EDITORIAL Dwight E. Baker, 20 The Life & Death of Idaho’s Loyalty Oath ADVISORY BOARD Commissioner Kathleen R. Hodges Lorna K. Jorgensen, Chair B. Newal Squyres, 24 Loyalty Questionnaires and Japanese Matthew T. Christensen Commissioner Samuel B. Laugheed Americans in WWII Douglas L. Mushlitz, Kenneth J. Pedersen Robert C. Sims Commissioner Scott E. Randolph 27 The Second Missouri Compromise Pamela J. Tarlow ADVOCATE STAFF Owen Wister Mitchell E. Toryanski Jeanne S. Barker 34 Idaho’s Oral Legal History Project Hon. Mikel H. Williams Managing Editor Rita Ryan John N. Zarian [email protected] 42 Justice Linda Copple Trout Retires Brian P. Kane Robert W. Strauser Jennifer Reinhardt and Kira Pfisterer Karin D. Jones Advertising Coordinator B. Newal Squyres Senior Production Editor COLUMNS Commissioner Liaison [email protected] 5 President’s Message, Andrew E. Hawes Amber R. B. Kenoyer 8 Executive Director’s Report, Diane K. Minnich Communications Assistant 47 Federal Court Corner, Tom Murawski NEWS AND NOTICES Copyright © 2007 The Idaho State Bar. The editorial contents 7 Newsbriefs of this publication are the 36 Idaho Law Foundation opinions of the authors and do 36 IVLP Special Thanks not necessarily represent or 37 New Admittees Directory Update reflect the policies or opinions 44 Idaho Supreme Court Fall Terms of the Idaho State Bar. The 44 Idaho Supreme Court Oral Arguments Advocate has the authority to edit material submitted 44 Idaho Court of Appeals Fall Terms for publication. Appearance of an advertisement in 44 Idaho Court of Appeals Oral Argument The Advocate does not constitute a recommendation 45 Cases Pending or endorsement by The Advocate or the Idaho State 50 Directory Updates Bar of the goods or services offered therein. The 55 Of Interest Idaho State Bar Editorial Advisory Board reserves the 58 Classifieds right to reject advertising determined not to be in 60 Coming Events keeping with the publication’s standards. 60 Continuing Legal Education Information The Advocate (ISSN 05154987) is published monthly, ON THE COVER September through June by the Idaho State Bar, 525 W. Photo is of 2007 ceremony for new admittees as Jefferson Street, Boise, Idaho 83702. Subscriptions: they take the attorney oath. Idaho State Bar members receive The Advocate as part of their annual dues payment. Nonmember subscrip - SECTION SPONSOR tions are $45 per year. Periodicals postage paid at Boise, This issue of The Advocate is sponsored by the Idaho Idaho. Legal History Society. POSTMASTER: Send address changes to: The Advocate P.O. Box 895 4 The Advocate • November 2007 P RESIDENT ’ S M ESSAGE ANDREW E. H AWES JUDGES PICKED BY VOTERS ARE BETTER ? Contrary to 4. Governor or Legislature Appointment My summary is just a brief sketch of conventional wis - (judges appointed directly by the the paper they wrote about the study, and dom, elected governor, the state legislature, or I urge you to read the entire publication judges may per - Direct Appointment) before you form an opinion. 1. But, antici - haps be better THE “R ESULTS ” pating this message would run in the than appointed PRODUCTIVITY November 2007 Advocate sponsored by judges. This the Idaho Legal History Society, I dis - Score one for the partisan-elected angle to judicial cussed this paper with Idaho Senator judge. Utilizing the authors’ standards, the choice grabbed William E. Borah 2 (sometime referred to paper reported that judges elected in par - my attention too. as the Lion of Idaho) to gauge his reaction tisan elections wrote more opinions than Three law professors suggest just this. In to such a study. We met for coffee at the judges from the other categories. August 2007, Stephen J. Coi, New York Starbucks a few blocks from the Capitol. Specifically, partisan-elected judges University School of Law; G. Mitu Gulati, According to Senator Borah, the Duke University School of Law; and Eric wrote a mean total of 31.3 opinions per measures utilized by Professors Coi, A. Posner, University of Chicago Law year versus 27.5 mean total for non-parti - Gulati and Posner to gauge ‘Judicial School, published a study testing the san elected judges, 23.6 mean total for Quality’ make as much sense as the assumption that appointed judges are far merit-selected judges and 20.9 for direct- rationale behind the League of Nations superior to elected judges. This study is in appointment judges. Treaty, a similar kind of mindset that the the form of working paper number 357, CITATIONS Senator said he and his peers spent many second series, in the University of However, according to the paper, hours debating. In fact, he scoffingly said, Chicago’s John M. Olin Program in Law direct-appointment judges excel the rest “Just because a judge decides a case or a & Economics. Although more research is under this category. The data shows mean motion lickity split, it doesn’t necessarily needed, the data suggests that elected citation rates for direct-appointment mean it is a quality decision. In fact, judges are better qualified than appointed judges—.872, followed by merit- Andy, if you want a modern day compari - 1 judges. selected judges—.774, non-partisan- son let’s look at my triple venti vanilla In their study the professors quantified elected judges—.712 and judges elected latte. If the barista gets behind and starts “judicial quality” using three forms of under partisan election—.572. to rush orders and fails to take the neces - measurement and analyzing four different INDEPENDENCE sary time to put the right amount of vanil - ways to become a judge. The study determined political affilia - la syrup or properly foam the drink, I’ll EASUREMENTS get a bad product. Conversely, I have had M tions by reviewing news articles, cam - bad lattes in cases where I was the only 1. Productivity (total number of opin - paign contributions, and the party of the customer in the store and the barista had ions issued) governor who appointed the judge. Based all the time in the world.” 2. Citations (how often a judge’s opin - on this data the professors were able to On the topic of the paper’s use of ana - ion is cited in other states) determine party affiliations of 352 of the lyzing frequency of citation to determine 3. Independence (how often a judge 408 state judges surveyed. Other factors writes a dissenting opinion) whether one was better than other, the study considered were: salaries for 4. Whether the opinion is in conflict Senator Borah had this to say, “Frequency high court judges, length of tenure, and with other judges from the same of citation to measure ‘judicial quality’ the rate of change on each bench. The political party on the same court doesn’t make sense either. I submit that authors then measured instances where a the frequency a case is cited is likely a WAYS TO BECOME A JUDGE judge issued an opposing opinion against result of that decision having a typical 1. Partisan Election (judges run for elec - a fellow co-partisan judge on the same issue of law concerning a common set of tion under a political party) bench in order to determine level of facts. Lawyers often cite cases not neces - 2. Non-Partisan Election (judges run for “independence.” The study concludes that sarily because they are best reasoned, but election with no political affiliation) judges subject to partisan-election have because they are on point and in support 3. Merit Selected (judges appointed by the highest independence and non-parti - of an argument they are presenting in Governor from a list of candidates san judges have the lowest independence, front of the court.” selected by a non-partisan commit - and that independence levels of elected Finally, Senator Borah and I had a tee) and appointed judges are not that differ - chance to discuss his thoughts on the ent. paper’s definition of “independence.” I November 2007 • The Advocate 5 want to share with you his much more ty.” Perhaps this has something to do with Andrew E. Hawes, is an in-house expansive definition of “independence.” the fact that the practice of law is an art, attorney for Western Pacific Timber, LLC According to the Senator, “ … ‘indepen - not a science.
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