Confusion reigned in the Senate State Affairs Committee this morning, where the state Department of Administration brought rules for approval governing use of the exterior of the Capitol grounds and the Capitol Mall area – the same rules that were, in part, ruled unconstitutional by a federal judge for violating the 1st Amendment in their restrictions on public protests and other events. State officials said they want to preserve appeal rights.
Sen. Bart Davis, R-Idaho Falls, asked Deputy Attorney General Clay Smith, “You are encouraging us as a committee to approve those rules in order to preserve a meaningful appeal of issues that we disagree with the court on?” Smith said yes, and Davis said, “In the event, however, we approve the rules that the court has found problematic, our approval of the rules are still stayed by the decision of the court, correct?” Smith said, “Certainly the rules cannot be enforced, and to that extent they are, as you put it, stayed.” Davis followed up: “And if we find value in the position of the court as to some of the administrative rules before us today and we reject them, then similarly they’re not enforced, correct? Because they don’t exist?” Smith called that “an interesting question.”
State Department of Administration Director Teresa Luna told the committee, “The department is not enforcing any of the rules that the judge’s ruling in November called into question. They are still in your docket before you, but they are not being enforced.” After more questions from committee members, Chairman Curt McKenzie, R-Nampa, announced that the panel had run out of time.
“So what we are going to do, because we have additional questions from the committee as well as citizens who have come here to have their voice heard on this, we’re going to continue this on Monday. We’ll clear our calendar of other issues and take the time we need to address this, because this is an important issue.” A subcommittee of the House State Affairs Committee is scheduled to take up the same rules at 9:30 this morning.