Tom Perry, attorney for Gov. Butch Otter, said U.S. Supreme Court Justice Anthony Kennedy, the author of the Windsor decision, has “sort of carved himself out as the swing vote, and we’ll see which side he goes on.” Said Perry, “This is a question of state authority, a question of the democratic vote in 2006 where Idahoans nearly 2-1 voted to retain the benefits of man-woman marriage. Justice Kennedy, as an advocate for gay and lesbian rights, is also a big proponent of democracy and federalism. So that’s where you’ve seen kind of the push and pull here.”
Deborah Ferguson, attorney for the couples challenging Idaho’s ban on same-sex marriage, said, “If we are discussing a fundamental right … then that is not subject to the will of the majority, and we all don’t get to decide what the fundamental rights might be of a minority group. That is not the American way.”
She said, “There is the question: Is this a fundamental right? That’s our due process argument. The other is our equal protection argument. These are laws that discriminate against a group of people. … So does the government have a legitimate reason to discriminate against that group of citizens? That’s the equal protection argument I think in a nutshell.”
The attorneys are speaking at the University of Idaho's Constitution Day statewide panel discussion, with audiences in Boise, Moscow and Coeur d'Alene. Craig Durham said he agreed with Ferguson on democracy and fundamental rights, but also agreed with Perry that Justice Kennedy likely will be the deciding vote on the nation’s highest court.
The first question posed to the lawyers from Idaho’s gay marriage case was about the atmosphere in the courtroom at the 9th Circuit Court of Appeals when the judges heard arguments in Idaho’s case earlier this month. Deborah Ferguson said the arguments were in the San Francisco courtroom that’s normally used for en banc arguments, when larger panels are convened. “It’s a very beautiful courtroom of marble and mosaics,” she said. “The building predates the great earthquake in San Francisco.” She added, “It’s the first time I’ve ever seen access to the courtroom so tightly controlled, and every seat was spoken for.”
The arguments were streamed live on YouTube, she noted. “Personally, I’d rather not be videotaped, although you forget about that very quickly as they start asking you questions, the judges, that is.”
Craig Durham said, “I had the unfortunate revelation afterward that I was on YouTube sitting behind whoever was speaking.” Tom Perry said, “I share Craig’s perspective – you would turn on your phone and you’ve got 300 texts, ‘Hey, I see you,’ as you’re pawing through your briefs trying to respond to an argument.”
Asked to rate the 9th Circuit judges’ questions compared to those from other circuits, the attorneys declined. Durham said he was a bit surprised that the 9th Circuit judges didn’t ask the lawyers any questions about Baker vs. Nelson, an early 1970s case that’s been a topic of questions at arguments in some other circuits.
Perry noted, “A lot of times, judges take you to places that really aren’t the principle thrust of your case.” He added said, “For degree of toughness, I really thought Judge (Candy) Dale, on both sides, she was really pretty tough on both of us.” Dale is the U.S. magistrate judge who overturned Idaho’s ban after hearing arguments this spring in Boise.
Deborah Ferguson, the attorney who made the arguments in the 9th Circuit this month against Idaho’s ban on same-sex marriage, told the UI’s Constitution Day crowd, “It’s been sort of a remarkable turn of events in how quickly everything has developed … in a period of just 14 months.”
Tom Perry, attorney for Gov. Butch Otter – who’s on the other side of the case – agreed. A UI grad himself, he told the law students participating in today’s statewide discussion, “There aren’t really very many opportunities as a student to learn constitutional law from a real-live example,” but the marriage debate is just that. “The briefing in these cases is really quite good across the nation,” Perry said, advising law students to read it. “You’re reading cutting-edge equal protection (arguments), from both sides.” He added, “From both sides, we’re really seeing some fantastic advocacy, and it’s really worth a look to get a better flavor.”
In honor of Constitution Day, attorneys from both sides in Idaho’s same-sex marriage case are gathered at a University of Idaho event in Boise today, in which students, lawyers and others are participating from Boise, Moscow and Coeur d’Alene. Here, the attorneys are Craig Durham, left, and Deborah Ferguson, center, who represent the four Idaho couples who successfully sued to overturn Idaho’s ban on same-sex marriage in federal court; and at right, Tom Perry, attorney for Gov. Butch Otter, who is thumbing through a pocket version of the U.S. Constitution, an item that’s been provided to all the attendees here in Boise. Otter and the state appealed the federal court ruling to the 9th Circuit Court of Appeals, where it's now pending.
Shaakirrah Sanders, University of Idaho law professor, said, “This case still very much is in the litigation phase, and so to that extent … we are not expecting any of our panelists to really discuss the merits of the case. Our goal is to help provide a broader understanding both for the public and for the attorneys in the room on how our Constitution applies under these circumstances, and the fact that this is very much an issue that is in the public’s interest.”
Ferguson is starting with an overview of what's happened thus far in the case.
Since July 1, 2007, Idaho’s school districts have backfilled their budgets with more than $1 billion in supplemental property tax levies, Kevin Richert of Idaho Education News report. These short-term, voter-approved levies – property tax increases – have steadily grown over that time period; 91 of Idaho’s 115 school districts had a supplemental levy on the books in 2013-14, up from 59 districts in 2006-07, the budget year that ended on June 30, 2007.
Richert reports that the growth of the supplemental levies occurred as the state was cutting K-12 funding, and using money from the federal economic stimulus package to pick up some of the slack; but the locally passed supplemental levies replaced only a fraction of the money cut from state funding. His full report, including comments from candidates for governor and state school superintendent, is online here.
Idaho 1st District GOP Congressman Raul Labrador introduced bipartisan legislation today to restrict surplus military equipment from going to state and local law enforcement agencies, saying local police shouldn't be militarized. “Our nation was founded on the principle of a clear line between the military and civilian policing,” Labrador said in a news release. “The Pentagon’s current surplus property program blurs that line by introducing a military model of overwhelming force in our cities and towns. Our bill would restore the focus of local law enforcement on protecting citizens and providing due process for the accused.”
In 2011, Labrador co-sponsored a bill to require 10 percent of military equipment being returned from Iraq that's suitable for law enforcement work, including drones, humvees and night-vision goggles, to be sent to federal and state agencies with a preference for using it for southern border security. Labrador’s spokesman, Dan Popkey, says that was “apples and oranges” and nothing like the program he's targeting today. “The 2011 bill was specifically for border security,” Popkey said. “Also, the items had to be suitable for local policing.”
The 2011 bill, dubbed the SEND Act, didn’t pass. SEND stood for “Send Equipment for National Defense” Act. It directed the Secretary of Defense, within one year after eligible equipment returns to the United States from Iraq, to transfer at least 10 percent of that equipment to federal and state agencies, “with a preference to agencies that will use the equipment primarily for U.S. southern border security purposes.” It did not limit the equipment exclusively to that use, however.
The bill defined as “eligible equipment” any equipment determined to be suitable for use in law enforcement activities, “including surveillance unmanned aerial vehicles, night-vision goggles, and high mobility multi-purpose wheeled vehicles (humvees).” The 2011 bill had 18 co-sponsors, all Republicans.
The new bill, dubbed the Stop Militarizing Law Enforcement Act of 2014, targets the Pentagon’s surplus property program that’s provided $4.2 billion in surplus military equipment to local and state law enforcement agencies without charge. That’s included everything from Mine-Resistant Ambush-Protected Vehicles, or MRAPs, to grenade launchers and high-caliber assault rifles. The program’s come under scrutiny since local police in Ferguson, Mo. used tank-like vehicles and military-style weapons for crowd control during demonstrations following the police shooting of a young unarmed man.
Labrador’s bill, which he introduced with Rep. Hank Johnson, D-Ga., and a bipartisan group of four other original co-sponsors, would exclude certain equipment including high-caliber weapons, long-range acoustic devices, grenade launchers, weaponized drones, armored vehicles and explosives from the program. It also would remove a requirement that police agencies use the equipment they get within a year, which Labrador said has been giving local police an incentive to use the military gear in inappropriate circumstances.
The bill also requires agencies to certify they can account for all equipment. In 2012, one Arizona sheriff was barred from the program after he couldn’t account for weapons and other equipment he’d received; and another Arizona county turned out to have transferred some of the equipment to non-police agencies like fire and ambulance units, in violation of the program’s rules.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Boise State University officials say they will change their on-campus event policies after facing a possible lawsuit from private legal organizations. The Idaho Freedom Foundation and American Civil Liberties Union of Idaho had accused the university of violating the First Amendment after it charged a student organization security fees for a gun-rights event earlier this year. University officials had already reimbursed the students $465 but they say will now suspend the policies that allow them to charge for enhanced security. The university also on Tuesday said it will suspend five other rules where enforcement is dependent on subjective discretion, such as allowing exceptions for sound amplification. The rules will be suspended until the university finishes revising them.
Click below for a full report from AP reporter Kimberlee Kruesi.
The board of the Public Employee Retirement System of Idaho voted today to give state retirees their first cost-of-living increase in six years, beyond the 1 percent a year already required by law. State retirees will get a 2 percent increase, consisting of the 1 percent mandatory boost and another 1 percent to reflect increases in the consumer price index; the decision is contingent on the new CPI report that’s due out tomorrow, which PERSI expects to come in at 2 percent.
In addition, the board voted to grant a 2 percent retroactive cost-of-living adjustment to make up a small part of what retirees missed out on for the past six years as COLAs were withheld. Of the 2 percent, 1.92 percent of that would apply to everyone who retired prior to July 1, 2008, while the remaining 0.08 percent would apply to those who retired by July 1, 2010. The cost-of-living adjustments were withheld all those years based on the status of the state retirement fund, which suffered during the recession but now has earnings robust enough to easily cover the increases, the board decided.
“There were a lot of people that walked out of there with smiles on their faces, because the board made decisions that people have been waiting for and are excited about,” said Kelly Cross, PERSI spokesman. “Because of the great recession, it took a while for the fund to dig out of that hole and get back to a healthy state. We had a 17.2 percent return for fiscal year 2014.” That meant a net gain, after all payouts to retirees were made for the year, of $1.9 billion for the fund.
PERSI is the retirement program for thousands of state and local government employees in Idaho, including teachers and public safety officers.
In addition to the total of 4 percent in cost-of-living increases – the board could have granted up to 8.05 percent, based on foregone increases over the last six years, but opted for a total of 4 percent – the PERSI board also voted to cancel two rate increases for employers and employees that otherwise would have taken effect next year and the year after. The two increases had been delayed repeatedly; an earlier one, a 1.5 percent hike, took effect in 2013 after several years of delays. “Employers and employees had been anticipating those two bumps up for some time,” Cross said, “so now this is a significant relief.”
The PERSI board also approved a decrease in the excess contribution rates for 22 fire departments and districts in the Firefighters’ Retirement Fund, which has been closed to new members since 1980, from 17.42 percent down to 5 percent. That’s because the funded status has reached 110 percent. Of the 550 members of that fund, just two are still actively working. The savings will be substantial to the employers involved, including the Boise Fire Department, which will save nearly $3 million. You can read PERSI's full announcement here, which notes that after the 4 percent COLAs, PERSI's funded status is 92.3 percent, with an amortization period of 12.8 years. By law, its amortization period must be 25 years or less; public pension systems are considered healthy when they're funded at 80 percent or better.
Idaho’s state Land Board has voted unanimously in favor of recommendations for distributions to the state endowment beneficiaries – the largest of which is public schools – that include only a small increase for schools. In fiscal year 2016, public schools would receive a $1.5 million increase in its endowment payment to $32.8 million. That’s a 4.7 percent increase; the state’s other, smaller endowments would see larger, 8.7 percent increases, except for one that would stay even, based on its reserve levels. Higher earnings in the other funds also would lead to a transfer from reserves to the permanent fund of $38.6 million.
Larry Johnson, investment manager for the state endowment fund, said if Idaho were to distribute its target of 5 percent of the permanent fund to schools in 2016, that’d be $40 million. But that level would cut too far into reserves, he said, which are targeted to cover five years of payouts.
New forecasts, however, show schools likely would be in for larger increases in payouts in subsequent years, Johnson told the Land Board. In fiscal year 2017, the public school payout likely would rise to $39 million, and in fiscal 2018, to $44 million. “I think the outlook going forward is very positive,” Johnson said. Among factors leading to that positive outlook are “the amount of timber that’s been pre-sold that we know is going to flow into the public school.”
State schools Superintendent Tom Luna questioned whether the state would ever get to those higher payouts, given its policy of having five years of reserves on hand to cover payouts of 5 percent of the permanent fund each year. If the permanent fund keeps growing, it’d be harder and harder to get up to five years’ worth of reserves, he noted, because that 5 percent figure would keep rising. Johnson said the distributions still would rise each year, though, to one-fifth of whatever is in the reserve at that point.
The point of the five years of reserves, he said, is that the payouts to the beneficiaries – including schools – would continue without reduction even in years when earnings are off. “We believe this is a conservative forecast,” Johnson said. Kevin Richert of Idaho Education News has a full report here.
Deborah Silver, the Twin Falls accountant who’s challenging four-term state Treasurer Ron Crane, is calling on Crane to release a full review of questioned investment transactions to state auditors. “What else does he have to hide?” Silver asked. “Idaho taxpayers deserve the truth from their state treasurer.”
Crane maintains he’s released all the information he can, but Idaho’s state auditor’s office, in an audit report released at the end of June, said it still hadn’t received documentation showing that Crane’s office has reviewed all potentially problematic transactions, after news of one surfaced in which a state investment pool lost millions when Crane’s office reallocated assets between it and a local government investment pool.
“While documentation of two specific reallocations was provided during the audit, no additional evidence supporting a full review of all potentially inappropriate reallocations was provided,” the late-June audit report said. Laura Steffler, Crane’s chief deputy, wrote in the office’s official response submitted for that report that the office had reviewed all securities lending transactions for reallocation of assets between investment portfolios directed by the office since July 1, 2008, and had already provided all the documentation.
“Short of just saying we did it, I don’t know how else we can prove … that we did it,” said Ken Burgess, spokesman for Crane’s re-election campaign. He said Crane’s office offered the auditors access to the full documentation for every one of the tens of thousands of transactions completed under its securities lending agreement since 2008, and the auditors declined that offer. “They said we don’t want all this stuff – we just want you to somehow prove that you did a full review,” Burgess said. “How do you prove that, short of taking our word that we did it?”
Silver responded, “That makes absolutely no sense. There are statements, with the allocations going back and forth reconciling the balance. … In my view, either he really does not understand what the auditors want, or he’s deliberately dodging.” You can read my full story here at spokesman.com.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — A state task force says reforming Idaho's teaching certification must be tied to increasing salaries in order to attract and retain quality teachers in public schools. The 15-member committee spent most of Monday discussing details of implementing a new teacher pay system commonly known as the career ladder. However, some members worry that state lawmakers will approve tougher certification requirements without providing funding for higher salaries. The committee is currently considering a seven-year transition to jump beginning teacher salaries from $31,750 to $40,000. State GOP Sen. Dean Mortimer of Idaho Falls says he would like the group to consider proposing a five year transition. State lawmakers will review the committee's recommendation when they convene in January for the 2015 Legislature.
Click below for a full report from AP reporter Kimberlee Kruesi.
Legislators, staffers, state agency heads and more are among the crowd gathered in the third-floor rotunda of the state Capitol this afternoon for longtime state legislative services Director Jeff Youtz’ retirement reception, which runs from 3-5 p.m. today. Youtz is retiring Sept. 30 after 36 years of work for the Idaho Legislature, including serving as budget director starting in 1994, and in the top post since 2006. “There are actually some legislators that were born after I started working here,” Youtz said, “so that gives you an idea how long it’s been.”
As a member of the state Capitol Commission, Youtz played a key role in the renovation of the state Capitol building that restored and enlarged the grand, historic structure. He also led a nonpartisan legislative staff that’s received national recognition. The Legislature this year approved a resolution, HCR 63, honoring Youtz and his work.
“It’s just been a wonderful privilege to work for the Idaho Legislature,” Youtz said today. “It’s an institution I really love. I’ve been lucky. I’ve had one of those careers where you look forward to going to work every morning.” Eric Milstead, who's been on the Legislature's non-partisan staff for the past 17 years, will succeed Youtz when he retires.
Here’s a link to my full story at spokesman.com on how charges flew – then fizzled – over the weekend as the Idaho Republican Party claimed that the Idaho Democratic Party and Democratic candidate for governor A.J. Balukoff were doing something “shady” involving passing money back and forth that might violate campaign finance laws. The Democrats responded that Balukoff had contracted out his campaign payroll services to the state party, and it was all reported, legal and on the up-and-up.
On Monday morning, the Idaho Secretary of State’s office looked into it and found no violation at all, instead concluding it's just “that time of year.” The state GOP now says it won’t pursue any complaint. Dean Ferguson, executive director of the Idaho Democratic Party, said, “I’m guessing they feel a little silly about it.”
Balukoff, a CPA and millionaire Boise businessman, is challenging Idaho GOP Gov. Butch Otter, a multimillionaire rancher, as he seeks a third term. The race also includes Libertarian candidate John Bujak, Constitution Party candidate Steve Pankey, and two independent candidates, Jill Humble and “Pro-Life,” who legally changed his name from Marvin Richardson.
Here’s a ranking in which Idaho is improving: According to State Farm Insurance claims statistics, we’ve dropped from 26th to 28th in the nation for likelihood of motorists hitting a deer on our roads. West Virginia has remained atop the list in first place for the past eight years; Hawaii is last. Washington ranks 41st; Utah, 34th; and Montana, 3rd.
State Farm found that the odds of a driver hitting a deer on Idaho roads is now 1 in 172, slightly higher than the national odds of 1 in 169. Idaho’s top months for car-deer collisions are November, followed by October, followed by December. The company’s tips for avoiding such collisions: Use caution in known deer zones; always wear a seatbelt; watch out from 6-9 p.m., when deer are most active; use high beams when possible; and avoid distractions like cell phones and eating. If a deer collision appears inevitable, State Farm advises drivers not to attempt to swerve out of the way, as that could be even more dangerous. Here's a link to the full 50-state comparison.
In honor of Constitution Day this Wednesday, the University of Idaho will sponsor a statewide panel discussion on constitutional questions surrounding same-sex marriage. The discussion will start at 4 p.m. MT, 3 p.m. Pacific, at the Idaho Water Center in Boise; students and faculty in Moscow and Coeur d’Alene will participate through video links, and the program is free and open to the public. Speakers will include Deborah Ferguson and Craig Durham, the attorneys for four Idaho gay couples who successfully sued to overturn Idaho’s ban on same-sex marriage, and Tom Perry, attorney for Idaho Gov. Butch Otter, who is defending the state law.
Shaakirrah Sanders, UI associated professor of law, will moderate the panel in Boise, and Michael Park, assistant professor of journalism and mass media, will moderate questions and provide commentary in Moscow. There’s more info here. Past Constitution Day observances at the UI have covered free press and fair trial issues, leaks of government secrets, violent images in video games and federal drug laws.
The Idaho Republican Party now says it won’t pursue any campaign finance complaint against A.J. Balukoff, Democratic candidate for governor, or the Idaho Democratic Party over a payroll services contract. “If they can satisfy the Secretary of State and make that clear to them that everything is fine and dandy, then that’s good, and that’s ultimately what the purpose of our press release was about,” said Dave Johnston, Idaho GOP executive director. “We had received this complaint from several concerned people who brought this to our attention.”
He said the questions focused on the post-primary election campaign finance reports filed both by the Idaho Democratic Party and by Balukoff’s campaign, in which payments were shown but the GOP thought it wasn’t clear “what is what, and if it’s a donation or whether it’s a service that is being rendered.” He added, “If the Secretary of State is satisfied, we’re not going to go forward with it.”
Idaho Chief Deputy Secretary of State Tim Hurst says there’s no campaign finance violation in the way Democratic gubernatorial candidate A.J. Balukoff has set up his payroll services contract with the Idaho Democratic Party. “We talked to the Democratic Party,” Hurst told Eye on Boise this morning. “The way it’s working is Mr. Balukoff’s campaign actually prepays for the services. So he’s always ahead. There’s no violation of limits.”
Balukoff provides the money up-front, and then the party disburses it for his payroll. “It’s part of the contract that he has with the party,” Hurst said. “I don’t see a violation there.” He added, “It’s just that time of year.”
The Idaho Republican Party charged in a press release sent out late Friday night that Democratic candidate for governor A.J. Balukoff may be violating campaign finance laws by the way he handles his campaign payroll. The Idaho Democratic Party responded on Saturday with its own press release, saying the party has a contract with Balukoff’s campaign to manage payroll services and there’s nothing in the deal that violates campaign finance laws. “IDP’s contract has been carefully vetted by CPAs as well as compliance experts. We are fully confident in its legality,” party spokesman Dean Ferguson said in his release.
The GOP release suggests that “Balukoff isn’t paying for his staff,” and instead they are being paid by the party while Balukoff donates funds to the party to cover the costs. Jason Risch, attorney for the Idaho GOP, termed this an “abnormal shuffling of funds” and said he thought it could mean the Democratic Party was exceeding the $10,000 limit on contributions to a candidate, “including in-kind contributions such as paying for a candidate’s staff.”
“The purpose of campaign finance disclosure law is to bring greater transparency in campaign finances so Idahoans may see what candidates and political organizations are doing,” GOP executive director Dave Johnston said in the release. “Engaging in confusing money shuffling schemes that appears to violate campaign finance law also violates the spirit of the law – which is to provide greater transparency.”
Ferguson maintained the payroll contract actually provides greater transparency, is fully reported, and that Republican candidates also have contracted out payroll services for their campaigns.
Both sides also took the opportunity to fire a few shots at each other. The Democrats’ release said, “The statement from the IRP seems to be part of an orchestrated smear campaign launched by Republican career politicians, and their lobbyist infrastructure, because they cannot defend Idaho’s rank as last in income, last in education investment, and 2nd in minimum wage jobs.”
The GOP release said, “Balukoff, being a certified public accountant, should know better. However, he is the same candidate who presided over a school board election in Boise that was riddled with shady practices. Finding shady schemes in his finances reports is not a surprise.”
An Idaho Statesman story over the weekend explored how “Otter fatigue” – a phrase I’ve been hearing increasingly this year from those who watch Idaho politics – could give Democrat A.J. Balukoff a lift in his challenge to two-term GOP Gov. Butch Otter. The story, by reporter Rocky Barker, is online here. “Some Idahoans’ disappointment with Otter, a divided GOP and a spirited campaign by Libertarian John Bujak give the Boise businessman a chance to pull off an upset,” Barker reports.
Early polls still show Otter with a big lead, Barker notes. A poll released Saturday by YouGov, the New York Times and CBS News showed Otter with 51 percent, Balukoff with 33 percent, 13 percent undecided and 3 percent saying “other.” That poll, with a sample size of 844, had a margin of error of plus or minus 4 percent.
But another look at Idaho’s electorate – though two years old, a much larger one – showed roughly 400,000 Idaho voters rejecting the “Students Come First” education reforms that Otter and state schools Superintendent Tom Luna had pushed through and voters overturned in 2012. Balukoff was a prominent backer of the referendum that overturned the laws. In the last general election for governor in 2010, Otter’s margin of victory in his big win over Democratic challenger Keith Allred was 118,803 votes.
Jerry Brady, the Democratic candidate who lost by just 40,000 votes to Otter in 2006, told Barker, “If all those who voted against the Luna laws vote for A.J., he would win.”
Idaho taxpayers’ costs so far for continuing to challenge the federal court decision overturning the state’s ban on same-sex marriage: $71,477. In response to a request under the Idaho Public Records Law, Idaho Attorney General Lawrence Wasden’s office reported spending $2,569, for an appellate filing fee and for travel for two attorneys to the 9th Circuit arguments this week in San Francisco. Gov. Butch Otter’s office reported spending $68,899, including $66,920 for outside counsel.
Private attorney Monte Neil Stewart represented Otter both in the arguments in San Francisco, where he gave the state’s entire presentation of oral arguments; in the preparation of the briefs for that appeal; and in requesting an emergency stay of U.S. Magistrate Judge Candy Dale’s decision overturning the ban while the state appealed. Stewart charged the state $250 an hour, with a maximum charge of $50,000 for preparing the briefs and $7,000 for making the arguments; both those maximums were met.
The figures don’t include salary costs for state employees who did the work as part of their existing jobs, including attorneys in the Attorney General’s and governor’s offices, who handled the initial case at the U.S. District Court in Boise. Cally Younger, attorney for Otter, said the money for the additional expenses there came from the governor’s office general fund.