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Posts tagged: idaho supreme court

Leavitt’s attorneys raise questions of guilt, state says 28 years of litigation is enough

In arguments at the Idaho Supreme Court today, defense attorney David Nevin contended there are questions about condemned murderer Richard Leavitt's guilt that have yet to be explored in court. But Deputy Attorney General LaMont Anderson told the justices, “We've been at this case now for 28 years.”

Justices peppered Nevin with questions about whether his interpretation of court rules would allow endless appeals to head off any execution. He countered, “We are not in the business of frivolous appeals here. There's a serious and significant issue as to guilt pending in the federal court.” Justice Jim Jones, a former Idaho attorney general, recused himself from the case; sitting in as a justice pro tem was retired Chief Justice Gerald Schroeder.

Late Thursday, the justices dismissed a major filing by Leavitt's attorneys, a petition to vacate the death warrant and conduct a new hearing. Then on Friday, U.S. District Judge Lynn Winmill dismissed a bid to stay the execution on the basis that a March U.S. Supreme Court decision cleared the way for consideration of Leavitt's earlier claim of ineffective counsel, with regard to testing of blood from the crime scene. Nevin immediately appealed that decision to the 9th Circuit U.S. Court of Appeals, which will hear arguments on it Thursday.

Today, U.S. District Judge Edward Lodge dismissed the portion of a lawsuit challenging Idaho's lethal-injection execution procedure that involves Leavitt, declining to issue a stay of execution, but leaving the case active for three other Death Row inmates. Leavitt is scheduled to die June 12 for the 1984 murder and mutilation of Danette Elg in eastern Idaho; you can read my full story here at on how he's lost three bids to stay his execution in the past five days.

Leavitt loses two bids to stay June 12 execution; more arguments today

U.S. District Judge Edward Lodge has dismissed the portion of a lawsuit challenging Idaho's lethal-injection execution procedure that involves Richard Leavitt, who is scheduled to be executed on June 12. Lodge wrote in his 55-page decision and order today that he would allow more time for briefing in the case of the three other condemned prisoners who sued, Thomas Creech, James Hairston and Gene Stuart, but expedited Leavitt's portion because of his pending execution date.

The gist of the lawsuit challenged the state's three-drug lethal injection procedure, charging that if the earlier drug to inflict unconsciousness failed, the condemned inmate would suffer severe and excruciating pain when the later, lethal drug took effect. Since then, Idaho has announced it will use a single-drug lethal injection procedure - exactly what Leavitt sought in the lawsuit - so those points were ruled moot. Leavitt also raised several other issues, but the judge found them not sufficient to warrant a stay of execution. Among them: He challenged the experience level of the people assigned to administer the lethal drugs through IVs, but state prison officials said the least-experienced member of the team has 15 years of relevant medical experience.

On Friday, U.S. District Judge Lynn Winmill dismissed another bid from Leavitt to stay his execution on the basis of ineffective assistance of counsel, tied to a recent U.S. Supreme Court decision; Leavitt's attorney, David Nevin, immediately filed an appeal of that decision to the 9th Circuit U.S. Court of Appeals. This afternoon, the Idaho Supreme Court will hear arguments on remaining issues raised in state court by Leavitt's defense as his execution date approaches.

Hart wants Idaho Supreme Court to reconsider his legislative immunity claim

Tax-protesting Idaho state Rep. Phil Hart is asking the Idaho Supreme Court to reconsider its dismissal of his state income tax appeal, saying the court should have given more consideration to his legislative privilege argument. Hart appealed an order to pay more than $53,000 in back state income taxes, penalties and interest, but filed his appeal months after the 91-day appeal period had expired. He argued that because an Idaho legislative session fell just after the appeal period, his status as a lawmaker should entitle him to more time to file.

The Idaho Supreme Court strongly disagreed, writing in its unanimous decision in April, “In this instance, Hart is just a taxpayer, with no greater privilege than his constituents.” Hart's bid for reconsideration argues that the framers of Idaho's Constitution “were intimately aware that their full attention, without any distraction of any nature, was required in order for them, and future legislators, to accomplish their work on behalf of the people.” You can read my full story here at

Idaho Supreme Court sets arguments for Monday in Leavitt case

The Idaho Supreme Court has set oral arguments for Monday at 3 p.m. on a series of last-minute issues raised by condemned murderer Richard Leavitt, who is scheduled to be executed June 12. Late yesterday, the high court dismissed a major filing by Leavitt's attorneys, a petition to vacate the death warrant and conduct a new hearing. The remaining issues, including a notice of appeal first filed May 21 in Bingham County, will be argued on Monday.

The Supreme Court has posted a link here on its website to all the last-minute filings in the capital murder case, which also include federal court filings; you can read its Thursday order here. Leavitt's death warrant was issued May 17 for the July 1984 murder and mutilation of Danette Elg in Blackfoot; his final appeal to the U.S. Supreme Court was rejected on May 14. Idaho completed its first execution in 17 years in November, putting triple murderer Paul Ezra Rhoades to death by lethal injection.

Idaho Supreme Court: Send child to dad in Mexico

Here's a news item from the Associated Press: BOISE, Idaho (AP) ― The Idaho Supreme Court ordered a 3-year-old girl in state custody be delivered to her father, a Mexican citizen who has never met his daughter because he's legally barred from entering the United States. The justices ruled Thursday a lower court erred when severing the man's parental rights last December. The man married an Idaho woman in 2007 while living illegally in the U.S. He returned to Mexico under court order, with his wife, in 2008 but she soon went back to Idaho, giving birth. The state took custody of the baby months later, citing neglect. Both parents' rights were terminated at the state Department of Health and Welfare's request. When reinstating the father's rights, the high court questioned the department's motives, noting an employee wanted to adopt the girl.

You can read the full court decision here; click below for a full report from AP reporter Jessie Bonner.

Idaho Supreme Court upholds law that abolished insanity defense

The Idaho Supreme Court has upheld the constitutionality of the law that abolished the insanity defense in Idaho, upholding the sentence of mentally ill multiple murderer John Delling of Boise, who went on a killing spree targeting his childhood friends. He was sentenced to a determinate sentence of life in prison after pleading guilty to two counts of second-degree murder. “None of Delling's constitutional rights have been infringed by the abolition of the insanity defense,” wrote Chief Justice Roger Burdick in the court's unanimous opinion; you can read it here.

Idaho Supreme Court rules Lewiston stormwater fee an unconstitutional tax

The Idaho Supreme Court has ruled against the city of Lewiston in a lawsuit challenging the city's stormwater utility fee as an unconstitutional tax because it wasn't authorized by the state Legislature. The lawsuit, brought by the Lewiston School District, Lewis-Clark State College, Nez Perce County, the Port of Lewiston and the Lewiston Orchards Irrigation District, was successful at the District Court level, but the city appealed; the high court now has upheld District Judge John Bradbury's ruling invalidating the fee. You can read the court's unanimous decision here, which was written by Justice Warren Jones.

Idaho’s high court installs new chief justice

Today, Gov. Butch Otter administered the oath of office to new Idaho Supreme Court Chief Justice Roger Burdick, who takes over from Chief Justice Daniel Eismann, who remains on the court after serving four years as chief justice. Burdick, in brief remarks after taking the oath, said, “I also wish to recognize Chief Justice Eismann, newly demoted Chief Justice Eismann.” Amid laughter in a full courtroom, Burdick said, “I can't help but refer to him as chief. He has done such a remarkable job in light of so many personal challenges in the last four years. … I will try to continue in that vein and to that high expectation.”

Eismann survived a bout with cancer during his term but continued serving; the illness was related to Agent Orange exposure during his combat service in Vietnam as a crew chief/door gunner on a Huey gunship. A judge for the past 35 years, Eismann was first elected to the Supreme Court in 2000, and was unopposed for re-election in 2006.

Burdick said, “Idahoans are independent by nature and conduct, and so is your Idaho judiciary.” He said the state's courts show their independence “in fashioning creative ways to solve the citizens' problems, from days' pay forfeited during the budget crisis, to working with the Idaho Department of Corrections for new and innovative ways to best protect society for the least cost. … We fashioned administrative solutions to Idaho problems based upon Idaho needs, based upon Idaho constraints, and used the best practices available in the nation.” He thanked his colleagues on the court who elected him to the chief's position, and the family and friends gathered for the investiture ceremony. “I'm fully aware of the large responsibility I've been honored with by these justices,” he said.

Burdick has been an Idaho judge for 30 years; he was appointed to the high court in 2003 by then-Gov. Dirk Kempthorne and was re-elected in 2004 and 2010. A former county prosecutor, public defender, private practice attorney and state water adjudication judge, he holds a degree in finance from the University of Colorado and is a graduate of the University of Idaho School of Law.

Burdick elected chief justice of the Idaho Supreme Court

Idaho Supreme Court Justice Roger Burdick has been elected chief justice by his colleagues, succeeding current Chief Justice Daniel Eismann, who will continue to serve on the state's highest court. Burdick, who will begin his four-year term as chief justice on Aug. 1, said he plans to continue Eismann's initiatives to expand drug, mental health and other problem-solving courts in Idaho and to pursue advances in technology that help modernize court operations. Eismann also advocated four-year rotations in the chief justice position; you can read the Idaho Supreme Court's full announcement here. Burdick has been a judge for three decades; he was appointed to the Supreme Court by then-Gov. Dirk Kempthorne in 2003 and re-eleced to the court in 2004 and 2010.

Idaho Supreme Court rejects bail bond firm’s lawsuit against county

The Idaho Supreme Court has rejected an appeal by Allied Bail Bonds after the firm lost a lawsuit against Kootenai County, charging that the county sheriff was infringing on its business by steering jail inmates toward credit card bonds rather than its bail bonds. The company offered constitutional and other arguments, but the high court rejected all of them, many on procedural grounds.

“In effect, Allied asserts that by accepting credit card bond payments, the sheriff has introduced a new form of competition to Allied’s licensed bail bond business,” Justice Joel Horton wrote in the court's unanimous decision. “Allied asks this Court to ignore Idaho precedent which characterizes a license as a mere privilege and elevate its bail bond license to a protected property interest. We are unwilling to do so.” The court awarded attorney fees to the county, ruling that Allied's appeal was “not reasonably based in either fact or law.” You can read the decision here.

Gang law gets test in Idaho high court

Idaho's highest court is deciding if a law against gang recruitment is constitutional, reports AP reporter Rebecca Boone, after hearing arguments from attorneys today over whether gangs exist solely to commit crimes or if they offer cultural, educational or other benefits to members. Click below for Boone's full report. It's the first test of Idaho's Criminal Gang Enforcement Act, under which Simona Manzanares of Caldwell was convicted of recruiting a criminal gang member, including contacts with teens and younger children at concerts and car shows. She's challenging the law as violating the constitutional right to free association.

ISP puts veteran trooper on leave after court cites perjury in murder case

The Idaho State Police have announced that a veteran state trooper who was sharply criticized in an Idaho Supreme Court decision issued Friday - for offering false testimony that helped land a North Idaho man a 25-year prison term for murder - has been placed on administrative leave with pay. Here's the ISP's statement:

“With the May 27th announcement of the Idaho Supreme Court's decision in State of Idaho v. Jonathan W. Ellington, the Idaho State Police is fully aware of the significant issues involved with this case.  As is standard procedure, the ISP has started an Administrative Investigation into the issues identified by the Idaho Supreme Court.  The ISP regards this as a serious matter and fully intends to complete a thorough investigation.  The involved employee has been placed on administrative leave with pay, and since this investigation involves a current employee in a personnel matter, the ISP will not be able comment further.”

The unanimous high court decision said, “It is extremely disturbing to this Court that an officer of the law would present false testimony in any case, especially a murder case. In this case, however, it is impossible to believe there was any truth to the testimony of Cpl. Rice. It is abhorrent to this Court, as it would be to any other court, that a man can be sentenced to twenty-five years for second-degree murder based primarily on the false testimony of a trooper of this State.” The court tossed out the conviction and sentence, which stemmed from a road-rage incident, and ordered a new trial.

Justices pondering Highway 12 mega-loads case

Here’s a link to my full story at on this morning’s arguments at the Idaho Supreme Court in the Highway 12 mega-loads case, in which the justices raised complex legal issues along with lots of questions; they then took the case under advisement and will issue a written ruling. And here’s ITD spokesman Jeff Stratten’s statement on this morning’s hearing:  “ITD thanks the Supreme Court for its attention and focus on the issues. We believe we made a strong argument demonstrating the department acted appropriately, within its own rules and the laws of the state. We look forward to the court’s decision.”

Idaho Supreme Court suspends judge-disqualification rule, citing abuse

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Prosecutors and defense attorneys in Idaho will be barred from disqualifying judges from criminal cases without giving a reason first. The Idaho Supreme Court has suspended a rule that had allowed prosecutors or defense attorneys to disqualify a judge “without cause.” The state high court ruled late last month that the rule had been used excessively and abused. The Idaho Mountain Express reports that a judge in Idaho’s 5th District, Robert J. Elgee, had been the target of numerous disqualifications based on the rule. Elgee had petitioned the Idaho Supreme Court to suspend and modify the rule in 2009, but was rebuffed by justices at the time.

Idaho SupCourt upholds registration requirement for out-of-state sex offenders

The Idaho Supreme Court has unanimously rejected an appeal from a man whose 1984 rape conviction in Washington required him to register as a sex offender when he moved to Idaho, even though Idahoans don’t have to register unless their sex offenses were on or after July 1, 1993. The reason: Idaho law requires anyone who was required to register as a sex offender in another state when they moved to Idaho, to register here. That was the case for Richard T. Yeoman, who was convicted in Kootenai County in 2008 for failing to register as a sex offender, a felony, after he moved to Idaho in 2007. Yeoman’s appeal charged equal protection violations and a violation of his constitutional right to travel; Chief Justice Daniel Eismann wrote, “Because he was required to register while residing in Washington, it is difficult to see how the requirement that he register in this state in any way infringed upon his right to travel.” You can read the opinion here.

SupCourt says I.F. needs vote for BPA power agreement, cites Frazier decision

The Idaho Supreme Court, in a 3-2 decision, has overturned a lower-court ruling that the city of Idaho Falls’ long-term agreement to purchase power from the BPA was an “ordinary and necessary” expense and therefore didn’t require a vote of the people; Idaho Falls Mayor Jared Fuhriman appealed the district court’s order. Justice Roger Burdick wrote the majority opinion, in which justices Dan Eismann and Joel Horton concurred; Justice Jim Jones wrote the dissent, in which Justice Pro-Tem Wayne Kidwell concurred. In his dissent, Jones wrote that the city of Idaho Falls has been providing electrical power for a century, so acquiring power was part of its ordinary activities, “to carry on an on-going and long-standing municipal service,” rather than a new venture creating special indebtedness.

Burdick, in the majority opinion, wrote that under the court’s earlier Frazier decision, the power purchase agreement, which wouldn’t have taken effect until Oct. 1, 2011, wasn’t urgent, so there was time for a public vote. You can read the court’s decision and dissent here.

Campaign attack groups fined for Sunshine Law violations

Idaho Secretary of State Ben Ysursa has announced fines against two groups that launched last-minute campaign attacks against an Idaho Supreme Court candidate without following the disclosure requirements of the state’s Sunshine Law. “Idaho Citizens for Justice” is being fined $1,300, and “Idaho Citizens for Commonsense Solutions” is being fined $600; the latter group provided half the funding for the former, which paid for nearly $40,000 in ads and fliers attacking Judge John Bradbury and touting sitting Justice Roger Burdick, against whom Bradbury was running in last week’s election; Burdick won. Once the two groups were contacted by the state and belatedly filed the required disclosures, it emerged that all the funding for both came from Melaleuca Inc., a personal-care products firm in eastern Idaho headed by conservative activist Frank VanderSloot.

The fines are for failure to file timely notice of the formation of the groups and of the last-minute independent campaign expenditures before the election, Ysursa said. “Timely pre-election disclosure is the key to the Sunshine Law,” he said. In letters to the two groups, Ysursa wrote, “One purpose of the Sunshine Law, as stated in I.C. 67-6601, is ‘to promote openness in government and avoiding secrecy by those giving financial support to state election campaigns…’ The Secretary of State is charged with enforcement of this law, and we take that charge seriously.”

SupCourt: Requirement was OK under Idaho law, but violated U.S. Constitution

The Idaho Supreme Court has ruled that an Idaho state law authorized a state magistrate judge to order random drug tests of the parents of a youngster who was placed on juvenile probation for two counts of petit theft, but that the requirement violated the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizure. The parents “do not have a diminished expectation of privacy in their bodies simply because their daughter is on juvenile probation,” the court held in a unanimous opinion authorized by Justice Warren Jones; you can read it here.

The court upheld an earlier ruling by the Idaho Court of Appeals in the case, State v. Doe, and overturned a district court ruling from Kootenai County upholding the urinalysis requirement. Interestingly, the high court’s opinion goes on at length about how there was proper statutory authority for the magistrate to order the tests under Idaho state law, in part because “drug use by a minor’s parents could reasonably detract from the minor’s education and rehabilitation.” But then, it notes, there’s that constitutional problem.

VanderSloot: ‘I’m sure we’ll be beat up on mercilessly’

Here’s a link to my full story on the last-minute campaign attack launched over the weekend against Judge John Bradbury and in favor of Idaho Supreme Court Justice Roger Burdick, whom Bradbury is challenging. The entire $38,000 effort was funded by Melaleuca Inc., the Idaho Falls personal-care products firm headed by eastern Idaho conservative activist Frank VanderSloot. VanderSloot told Eye on Boise that he was “embarrassed” that the proper disclosure paperwork wasn’t filed by two PACs that handled the effort. A major funder of numerous political campaigns, who four years ago helped defeat a sitting judge in his eastern Idaho district after he was unhappy with the judge’s behavior in a case involving his firm, VanderSloot said, “We’ve taken a role over the last 10 years or so, but we’ve always done it in the open. … I’m embarrassed I gave my money to someplace that hadn’t done the paperwork right.”

VanderSloot said so far this calendar year, he and his wife, Belinda, have made $70,800 in political contributions, including $60,800 to the National Republican Senatorial Committee on May 17. Meanwhile, through Melaleuca, he’s donated $54,750 to various Idaho campaigns and PACs, plus another $29,500 to the Committee to Elect Meg Whitman, a Republican candidate for governor of California. VanderSloot said he’s done much of his campaign spending from his company, rather than personally, because of limits on campaign contributions from individuals to candidates, and because he believes businesses and corporations have a right to participate in the political sphere. “Now it’s not popular to do, and I’m sure we’ll be beat up on mercilessly,” VanderSloot said. “That doesn’t bother me. … I think it’s incumbent upon us to do things legally and ethically and honestly, and let the chips fall where they will.”

All the money trails lead to VanderSloot

The group “Idaho Citizens for Justice” has now filed its overdue campaign finance report, and it shows that the group received $38,000 - half from Melaleuca Inc. and half from “Citizens for Commonsense” in Idaho Falls - for its last-minute campaign against Judge John Bradbury and in favor of Idaho Supreme Court Justice Roger Burdick, whom Bradbury is challenging. “Citizens for Common Sense Solutions,” in turn, is a PAC whose own campaign finance report - also just filed this afternoon, a week after the deadline - shows it received $19,000 in donations, all from Melaleuca - meaning the personal-care products firm owned by Idaho Falls conservative activist Frank VanderSloot is the sole funder of both groups. You can read the Citizens for Justice finance report here, and the Citizens for Common Sense Solutions finance report here.

Jonathan Haines, chairman of the Citizens for Justice group, said he used to work for Melaleuca, but now does marketing and consulting work in Idaho Falls, where he has lived since 2008. Haines said the group has spent its entire $38,000 in contributions on newspaper ads in Boise, Twin Falls and Idaho Falls, sending a statewide mailer, and running radio ads in Idaho Falls, Pocatello, Twin Falls, American Falls, Boise and elsewhere, all targeting Bradbury and touting Burdick. “I didn’t mean to do anything outside of the law, I didn’t mean to do anything that wasn’t kosher,” said Haines, who said he thought he’d filed the required paperwork. “It’s a shame there was a glitch with the paperwork, but the end goal was basically to help educate the electorate and to make them informed, so they can make the informed decision on which judge they can support.”

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About this blog

Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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