Businesses should be alarmed by the dearth of district court candidates

Very few lawyers with experience in business litigation have applied in recent years for openings on Idaho’s district court bench where multimillion-dollar business cases are decided. District courts handle trials of felony cases, as well as high-dollar cases involving all sorts of disputes that can substantially impact the bottom lines of Idaho businesses ― contracts, agricultural issues, malpractice, class actions, employment, secured transactions, competitive practices, water disputes, land use and development, corporate disputes, you name it. Putting these disputes in the hands of judges without substantial experience in the business arena is risky business.

The problem of recruiting business-savvy candidates for positions on our district courts has reached crisis proportions. Periodic surveys of Idaho lawyers disclose that many experienced middle-aged lawyers, both men and women, are interested in serving as a judge. The crux of the problem is that candidates for the district court must have 10 years of legal experience ― just when talented lawyers start climbing the compensation ladder. Not many of them would opt for a district court position without assurance of a favorable and reliable compensation package. State pay and benefits now are anything but.

The salary concern came front and center in 2022 when the Legislature gave every state employee, except for judges, a 7% cost-of-living pay increase. Judges were unsettled by that slight but equally concerned by other legislative actions in the next two years ― tinkering with the Idaho Judicial Council selection process, trying to limit or totally do away with a useful retirement option and trying to force contested elections, among other things. Those discouraging actions have had the effect of reducing the number of highly qualified candidates who apply for district court positions. Imagine trying to recruit talented lawyers for corporate counsel positions when the board of directors is continuously trying to make unappetizing changes to the conditions of employment.

It is no wonder that recent openings for the district court have attracted very few candidates with substantial business experience. One district court opening in Canyon County in 2023 produced only five applicants ― three deputy county prosecutors and two deputy public defenders. These candidates may all have been well-versed in criminal law, but that does not necessarily mean they would be ideal for deciding a complicated, multimillion-dollar civil lawsuit. Two district court openings last year ― one in Minidoka County and one in Kootenai County ― drew only three candidates, the minimum number required by law. None of them appeared to be highly qualified to handle important business litigation.

The current annual salary for district judges is $155,508 or $77.76 per hour for a 40-hour work week. Most of those judges find it necessary to devote 60 to 80 hours per week to adequately handle their caseloads. Seven deputies in the Idaho Attorney General’s office are paid more on an hourly basis. Gov. Brad Little is calling for the pay of contract public defenders to be raised to $150 per hour. The Legislature routinely hires lawyers in private practice to represent it in litigation on specific issues at rates exceeding $400 per hour. According to a recent survey, salaries for district court judges in Idaho are 48th lowest in the nation and 50th for Supreme Court Justices.

So, if two businesses are engaged in a fight for survival in a district court in Idaho, each paying over $400 per hour, which is quite common in Boise, they will place their fate in the hands of a district judge who may or may not have substantial business experience and who is being paid as low as $38.88 per hour, figuring an 80-hour week. We currently have a strong bench of district judges around the state who are very capable of handling such cases. Without a dramatic pay increase, that will cease to be the case.

The other judges in our judicial system are also seriously underpaid. The annual pay of Supreme Court Justices is $169,508, which equates to $81.49 per hour, comparable to the pay rate for those seven deputy attorneys general and slightly more than half of what a contract public defender will receive. Court of Appeals judges are paid $161,508 or $77.65 per hour, and magistrate judges receive $147,508 or $70.92 per hour. Those salaries all need to be increased, but the real crisis is in the district court ranks. The appellate courts have not been as seriously impacted because those positions are more sought-after for a variety of reasons. Magistrate judge openings currently invite numerous qualified applicants, partly because magistrates do not face election contests.

Chief Justice Richard Bevan made a compelling case in his State of the Judiciary Address for improving the compensation package for the judiciary. He proposes raising judicial salaries by about 27%. District court judges would get $201,000, Supreme Court salaries would be $215,000, Court of Appeals judges would get $207,000 and Magistrate Judge pay would be $193,000. The plan proposes a citizens’ commission to set future salaries for judges, much like legislative salaries are presently set. That would remove the issue of judicial salaries from the political realm and encourage more high- quality candidates to step forward for these critically important positions. The business community can do a big favor for the courts, and itself, by vigorously supporting such legislation during this legislative session. The community has much to lose if our courts don’t have trial judges who can knowledgeably decide complex business disputes.

Anyone wishing to lend a hand in this effort can contact me at [email protected] or [email protected].

Jim Jones is the former Chief Justice of the Idaho Supreme Court and Attorney General for Idaho.