BOISE Justice Stephen Bistline, the Idaho Supreme Court's conscience and resident civil libertarian for more than 18 years, announced Friday that he is resigning effective Dec. 1.
Bistline, 73, who has had some physical problems in recent years and has failed to participate in an increasing number of cases in recent months, was the court's most prolific dissenter, often taking dozens of pages to disagree sometimes scathingly with a relatively brief majority opinion. He also frequently was alone in his dissents.
"When one perceives gross prejudicial misstatements in a majority opinion, the only answer is either to get to work or get out of the kitchen," he wrote in a 1990 dissent when the court rejected condemned torture-murderer Gene Francis Stuart's petition for rehearing.
The Pocatello native spent five years in the Navy, flying blimps on anti-submarine patrol, qualifying as an aerial navigator and bombardier and finishing his service in connection with the Manhattan Project that developed the atomic bomb.
Bistline received his law degree from the University of Idaho in 1949. He later practiced law in Bonners Ferry and Sandpoint until Democratic Gov. Cecil Andrus appointed him to the five-member Supreme Court in May 1976. His current term was to expire in January 1997.
He was Idaho's 42nd Supreme Court justice. Only eight served longer.
"Justice Bistline has been a significant part of the development of law in Idaho for 18 years," Chief Justice Charles McDevitt said. "His intellect and his point of view helped shape our law."
The announcement that he was resigning came less than three weeks before the Nov. 8 election. Andrus is retiring, and fellow Democrat Larry EchoHawk is locked in a tight race to succeed him with Republican Phil Batt.
The Idaho Judicial Council said it would notify potential candidates to succeed Bistline beginning Monday.
After the applicants are evaluated by the Idaho Bar and interviewed by the council, a panel of up to four is submitted to the governor for his selection. The process could be completed in as little as eight weeks, but usually takes 10 weeks or longer. That would push the submission of nominees beyond the Jan. 2 inauguration, leaving the choice to Andrus' successor.
Bistline only infrequently asked questions of attorneys appearing before the court and generally declined interviews. He was best known for his often pointed written disagreements with his colleagues.
Of the 959 opinions in which he participated through Oct. 21, he was in the minority in 586, or 61 percent. By comparison, former justice Robert Bakes dissented in 282 of 838 opinions, less than 34 percent, during a career on the bench that was three years longer.
He even in one case dissented from a majority opinion which he authored.
"He was for the underdog. He was for the person that society tended not to look after," Bakes, who served with Bistline for almost 17 years, said Friday. "He had a certain empathy for people who maybe didn't have the resources or the power of their own to confront society. He put human interests first."
Bistline's opinions and dissents, more rare in recent years, usually were written in a style as much literary as legal. He did not shy away from criticizing his brethren on the bench or lower courts for failing to protect the constitutional rights of defendants.
In a 1977 dissent from the high court's decision that the death penalty was an option in the resentencing of convicted murderer Thomas Eugene Creech even though he had murdered his victims when the death penalty was unconstitutional Bistline quoted a dialogue between Roper and Thomas More in Robert Bolt's play, "A Man For All Seasons" to help make his point.
He then connected the passage to the reason Creech should not face a possible death sentence, summing up his approach to such cases.
"If the people of Idaho support the existence of the death penalty in this state for another century, it is unlikely that a more satanic candidate than Thomas Eugene Creech will ever merit its sanction," Bistline wrote.
"For a mass murderer to escape death because of what appears to be a legal technicality will be judged by the people and the press to be, in Roper's words, sophistication upon sophistication.'
"Still, it is the business of this court to uphold the laws, not to lay them all flat in order to get at anyone, not even a Creech."
