Prosecutors in Idaho can no longer disqualify a judge from criminal cases without stating a reason why.
Late last month, the Idaho Supreme Court suspended Criminal Rule 25, a legal procedure that allowed prosecutors or defense attorneys to disqualify a judge "without cause." In a one-page order signed on July 23 by Chief Justice Daniel T. Eismann, the Supreme Court declared that Rule 25 has been "used excessively and abused" and is suspended immediately.
The high court did not specify in the order where excessive use and abuse had occurred, however Blaine County 5th District Court Judge Robert J. Elgee has been a victim of Rule 25 during the past two years because of numerous disqualifications filed against him by prosecutors in Blaine and Twin Falls counties.
The disqualifications were even used as a campaign issue against Elgee by Hailey attorney Douglas Werth, who unsuccessfully tried to win Elgee's position on the bench in the May primary election.
Blaine County Prosecuting Attorney Jim Thomas is no longer routinely disqualifying Elgee, but disqualified the judge from nearly every felony criminal case in the county from November 2008 through May 2009. Twin Falls County Prosecuting Attorney Grant Loebs started blanket disqualifications against Elgee at the same time as Thomas and has continued since then to keep Elgee off felony cases in his county.
Elgee petitioned the Supreme Court in March 2009 to have Rule 25 temporarily suspended and modified, but his request was then denied.
Thomas said Tuesday that he doesn't believe the Supreme Court suspended the rule because of disqualifications filed against Elgee.
"You may recall when the issue of alleged abuse of Rule 25 disqualifications came before the Supreme Court in March 2009, the court ruled unanimously that neither Blaine County nor Twin Falls were abusing the rule," Thomas said. "Based upon that, I don't believe the recent decision to suspend Rule 25 has anything to do with our previous use of the process.
"As we have only used the Rule 25 once since May 2009, I do not anticipate suspending the rule will have any impact on how we operate our caseload," Thomas said.
Without Rule 25, prosecutors or defense attorneys can still disqualify a judge, but they now have to state a reason and the judge in question has the opportunity to rule on their request.
Loebs said Tuesday that he thinks suspending the rule was a mistake.
"I think it's a bad idea," Loebs said. "I think it will deny justice to litigants in some criminal actions."
Loebs has never stated publicly why he doesn't want Elgee on Twin Falls County cases, but said if Elgee is now assigned to one he will file a motion to disqualify with cause.
Fifth District Court Administrator Linda Wright said Monday that Elgee has not been assigned any cases in Twin Falls County and likely won't be assigned any in the near future. However, Wright acknowledged that the possibility exists.
"I'll still DQ him if it comes up," Loebs said.
Loebs insisted that the Rule 25 was not suspended because of disqualifications in the 5th Judicial District.
"I know that it doesn't pertain to any misuse here," he said. "It has more to do with problems in northern Idaho."
Elgee said that he has mixed feelings about the rule suspension.
"I think as a whole the judges are happy it got suspended," Elgee said. "But that's not what I asked for. I never asked for the rule to be suspended completely—I asked for it to be modified."
Elgee said disqualifications against him may have had something to do with the Supreme Court's decision.
"It might have to some degree," the judge said. "But there are other districts that have used it far more than the 5th Judicial District."
Terry Smith: tsmith@mtexpress.com
Judge Robert J. Elgee presides over the Hailey courtroom.
