What court does — and doesn’t — do

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Art Macomber

On June 16, your lead editorial discussed the Idaho Supreme Court’s recent ruling on police and misdemeanor crimes, and their inability to arrest an alleged miscreant because they did not witness the act. I did not read the Supreme Court decision, and it is unnecessary to my concerns today. I am writing about the editorialist’s mischaracterization of the job of the third branch in protecting liberty, and the constitutional limitations on its power.

The editorialist stated, “the court’s intention is understandable,” after which it recites facts of the Hayden case “involving an alleged groping incident at Honeysuckle Beach.” However, the State Supreme Court is not a maker of policy or law, especially based on the facts of an individual case. That job is left to the Legislature. The Legislature may hold hearings, it may invoke the subpoena power to call people before it, it may commission studies to determine alleged widespread occurrences of facts, and thereafter it can create laws based on policies it believes proper within the scope of its power as granted by the people in the Idaho Constitution. The Idaho State Supreme Court is not a legislature. Therefore, the Supreme Court can have no policy intentions, except to uphold the Idaho State Constitution by interpreting and then applying the laws made in furtherance thereof in individual cases.

The editorialist then opines, “jurists want a high standard for misdemeanor arrests.” The jurists do not want any standard, except the constitutional standard. The Court’s proper role is to find that standard and then apply it. If the Court goes beyond that role, it is acting unconstitutionally.

The editor relates the State Supreme Court “determined that an officer needs either a warrant or must witness the misdemeanor crime to be able to make an arrest.” The editor’s language conveys the mistaken notion that the Supreme Court is acting as a legislature in making policy. However, it is not the Court, but the Idaho Constitution that mandates an officer have either a warrant or must witness a misdemeanor crime to be able to make an arrest. The Constitution safeguards individual liberty, and in this case the Constitution requires the liberty of the alleged miscreant be protected, unless probable cause gives the officer reason to arrest.

I understand that domestic violence situations present difficult constitutional issues. Practically, a person in fear of their spouse may benefit from the de-escalation that occurs if the abusing spouse is arrested and separated from the abused one, even if the abuser has to be released prior to arraignment because there is no evidence sufficient to hold them against their will. Even if true in 100% of the cases, this does not mean that the Supreme Court is in the position to make a policy determination about whether one’s liberty should be lost. The Idaho Constitution is a creation of the people of Idaho, and the people of Idaho are historically justified in being rigorous about safeguards to their individual liberty. The State Supreme Court’s function is to be rigorous in upholding the peoples’ Constitution.

The editorialist then makes the mistake of stating, “the next option is a possible legislative remedy.” The Legislature cannot make a law that violates the Idaho Constitution, because such a law, if signed by the governor, would be immediately void, although it would take a court case to have it recognized as such. The only resolution to a perceived societal need to make an arrest under any circumstances the police deem justified and to thereby take someone’s personal liberty is to have a constitutional amendment that explicitly determines that in some situations liberty is not that important, and that the police should be the best determinants of when that is important. This concept is alien to Idaho government, and it would be wrong for the citizenry to ignore history by giving a police officer that much power.

Finally, using no argument that the Court got the law wrong the editor calls for a rehearing, but arguing “for the sake of avoiding outrage that can result in murder.” One of the core purposes of having a Constitution is to avoid the “outrage that can result in murder,” as the founding fathers recognized when they glanced across the water at France in 1791. The founders of the State of Idaho recognized that popular emotions like “outrage” should not motivate lawmaking, and that is why the Constitution was written as it was in 1890. Bowing to the popular will does not mean making changes to the Constitution in response to every emotional outrage felt by the populace. Idaho is not a democracy, God help us remember, it is a republic. I, for one, would pray for better marriages prior to giving police the power to seize people based on a social policy that believes a temporary deterrent justifies such a loss of liberty. The Supreme Court is not the Legislature, please let’s not talk as if it is one.

•••

Art Macomber is a Coeur d’Alene attorney.

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