Ethics Violations at Idaho’s Judicial Council?

According to leaked video, Idaho’s Chief Justice, head of the Judicial Council, seems to recommend a judge because that candidate shares the Chief's Mormon faith.

Idaho’s Judicial Council acts as a gatekeeper for Idaho’s entire judiciary. People who want to be judges apply to the Judicial Council in order to serve. The Council then interviews candidates and puts them on a list from which the governor must select judges. It is a big deal.

Staffing a judiciary is no easy matter. The public does not necessarily have sufficient time or knowledge to figure out who is judicious and technically able to serve as a judge. But if the public is shut out, clans, cliques, and insular groups can easily hijack any process. The national government handles this difficulty with a complex system. The real power lies in what happens outside the public eye, as presidents vet potential candidates for judiciousness and judicial philosophy. Then presidents nominate, and the Senate offers advice and consent.

In Idaho, most everything is done behind closed doors in the Judicial Council. Clannishness and corruption can arise, especially when membership does not change over too much. Members of the judicial council must adhere to a set of ethical rules, including Rule 2.3 against “Bias, Prejudice and Harassment, ” where judges shall not “in the performance of judicial duties” manifest bias on the basis of race, sex, gender, religion and other things.

An opening on the district court in Canyon County arose in 2021. This is a trial judgeship. Six applicants sought the position, according to publicly-available documents. The Judicial Council forwarded Gov. Brad Little four names, after conducting interviews. Statute requires the Judicial Council to send the governor two to four names. No record of how members of the Judicial Council voted appears in the public record, nor is there a public record of the interviews (though there is a youtube link on the interview schedule).

The names forwarded for that 2021 opening were Scott J. Davis, Randall S. Grove, Tyler J. Rands, and Brent L. Whiting. Two candidates did not make the list—Robert. W. Hancock, Jr. and “Raymond” George DeFord, Jr. Why was Rands’s name forwarded to the governor, while Hancock’s and Deford’s were not?

Footage from the Judicial Council deliberating, acquired by Action Idaho, reveals a deep problem. The Chief Judge and Ex-Officio Chair of the Council, G. Richard Bevan, has a hot mic on the video. During the discussion of Rands, Judge Bevan says, “I don’t know what the judicial council thinks of this candidate never trying a case.” During the interview, Rand had apparently said that he had never tried a case. A candidate for a trial judgeship had himself never tried a case! He appears completely unqualified. (Whether the candidate did not try a case is at issue in this case, actually, but not the Chief Judge’s state of mind: he thought the candidate had not tried a case, apparently.)

At this stage, the Chief Judge says that Rands is really smart, has a 3.83 GPA (again, we cannot confirm that GPA) at Michigan State (the 91st ranked law school in the country) and that he had a “good ole LDS upbringing.” Why is this LDS upbringing even brought up? It is a violation of judicial ethics to choose a candidate based on religious affiliation.

The hot mic episode suggests that that is just what happened in this case.

The record of Tyler Rands compares quite unfavorably to DeFord and Hancock on paper. DeFord has been practicing law since September 1998, clerked for two federal judges, and owns his own firm, for instance. There is something fishy about the selection.

Many people know about the Chief Judge’s comments, but no one has anywhere to go for the ethics charge, because the same man sits at the top of the judiciary and the judicial council.

Idaho’s legislature should consider revisions to the judicial council law, as they did last legislative term. One such concern is finding places to take ethics violations, though it is not the only such concern. Legislators should also be concerned about why, after thirty years of Republican rule in Idaho, justices are more on the left than on the right. Involving the Idaho Bar in judicial selection has been a big error—and the legislature should not worsen the situation by increasing the Idaho Bar’s presence on the council. More on that soon.