Friday, March 6, 2009

Supreme Court considers judge disqualification rule

Twin Falls prosecutor joins Thomas in not wanting Elgee on their cases


By TERRY SMITH
Express Staff Writer

Blaine County 5th District Court Judge Robert J. Elgee is facing blanket disqualifications against him by prosecuting attorneys in both Blaine and Twin Falls counties. Photo by Chris Pilaro

The Idaho Supreme Court met in private session Tuesday to consider suspending a judge disqualification rule in the 5th Judicial District because of a rash of judge disqualifications in Blaine and Twin Falls counties against Judge Robert J. Elgee.

No decision was officially available to the Idaho Mountain Express by press deadline Thursday, but the Twin Falls County prosecuting attorney reported that the Supreme Court had declined to suspend the rule.

Suspension of the rule was considered by the high court at the request of Elgee, Blaine County's district court judge, because of blanket disqualifications against him on felony criminal cases by Blaine County Prosecuting Attorney Jim Thomas and Twin Falls County Prosecuting Attorney Grant Loebs.

Elgee has declined to comment on the situation, and neither Thomas nor Loebs has been willing to say why they don't want Elgee on their cases. The Idaho Mountain Express, however, has learned that dissatisfaction with Elgee stems mainly from pre-trial rulings on admission of evidence.

For example, last October Elgee declined to allow Thomas to introduce evidence in a case of sexual battery of a minor child in Bellevue. Thomas intended to bring other young girls into court to testify that the accused man had also attempted inappropriate contact with them. Elgee ruled that the testimony would not be relevant to the charge against the suspect.

Rule 25, as issued by the Idaho Supreme Court for judicial proceedings in the state, allows a prosecutor or defense attorney to disqualify one magistrate judge and one district court judge per case without stating a reason.

Since November, Thomas has disqualified Elgee from all 15 felony criminal cases that have come to district court in Blaine County. Loebs started his blanket disqualifications on Elgee at about the same time.

Also in November, Thomas and Loebs had a telephone conference with other prosecutors in the 5th District to discuss their concerns about Elgee.

Both Thomas and Loebs have denied that any attempt was made to initiate blanket disqualifications throughout the 5th District, which includes Blaine, Camas, Cassia, Gooding Jerome, Lincoln, Minidoka and Twin Falls counties.

"There was no conspiracy whatsoever," Loebs said Wednesday. "Jim and I explained to them what was going on, but there was no attempt to get anyone else to do this."

Thomas issued a written statement to the Idaho Mountain Express on Thursday.

"I have spoken with the 5th District prosecuting attorneys about my situation in Blaine County to advise them that my actions could ultimately affect them," Thomas wrote. "At no time was there any discussion or agreement to purposefully expand the disqualification of Judge Elgee. Each prosecutor understands that they have to make their own independent decisions about how to prosecute their cases in each of their counties."

Cassia County Prosecuting Attorney Alfred Barrus confirmed that the discussion took place, but he said no attempt was made by Thomas or Loebs to convince other prosecutors to disqualify Elgee.

"I'm sure they just wanted us to know what their problems were," Barrus said. "In my conversations, they weren't trying to get anyone to do anything. They were just trying to tell us what happened in their cases."

Blanket DQ's

After previously declining to comment on the situation, Thomas issued a news release on Monday.

"I have avoided comment in order to comply with my ethical obligations and the Rules of Professional Responsibility, and to preserve the integrity of the judicial process, which must be protected from unnecessary criticism and conflict," Thomas wrote.

"Please be assured that I did not come to these decisions lightly and any insinuation that I am exercising the disqualification rule for petty reasons is absurd because I have the utmost respect for the judiciary. As always, my primary goal as prosecuting attorney is to ensure that the state of Idaho, our communities and crime victims are well represented and that the interests of justice are served."

Thomas and Loebs exercise their disqualification options at different times during judicial proceedings. Since Elgee is Blaine County's presiding judge, all felony cases in the county go to him, and Thomas must file a separate disqualification motion in each case.

Loebs exercises the option before Elgee is ever assigned to a case in Twin Falls County. When a felony case reaches district court, a list of judges is sent to prosecutors and defenses attorneys. The list shows which judges would be available to hear a case if the county's regular district judge, for one reason or another, is unable to hear a case. Since last November, Loebs has disqualified Elgee from every Twin Falls County case.

"I don't particularly want to go into it," Loebs said. "The rule eliminates the need to discuss the reasons. I've discussed it with him (Elgee) and I've discussed it with Administrative District Judge (Barry) Wood. It's not a secret, I just don't want to give a reason for public consumption.

"I have never used a disqualification simply because I don't agree with a judge's sentencing."

Rule 25 has been revoked before, said Hailey attorney Kevin Cassidy, a former deputy prosecutor and magistrate court judge.

"Back in '87, because of abuses up in Kootenai County, we lost the rule for several years and it wasn't brought back until the mid-90s," he said.

Hailey attorney Douglas Nelson said he sometimes disqualifies judges, but he tries to use the rule judiciously.

"As a blanket, I think that is not in the spirit of the rule," Nelson said. "There's only one reason you do it and that's because you don't agree philosophically with what the judge does. Every judge has one particular thing that gets under their skin. Some have a thing about sex crimes, some have a thing about DUIs. If I don't think that a particular judge is the best judge to hear a case, then I owe it to my client to disqualify him."

Terry Smith: tsmith@mtexpress.com




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