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Eye On Boise

Posts tagged: lawsuit

9th Circuit rejects Otter’s bid for initial en banc review in gay marriage case

The 9th Circuit U.S. Court of Appeals has rejected, without comment, Gov. Butch Otter’s request for Idaho’s same-sex marriage case to go directly to a full 11-judge panel of the court, rather than the usual three-judge panel. Otter made the request in July, saying a full-court review by the appellate court rather than a smaller panel would enhance the “perception of the legitimacy of this court’s resolution.” It’s highly unusual for such a request to be granted.

Today, the 9th Circuit issued a 10-word order, saying only, “Appellant Otter’s petition for initial hearing en banc is denied.”

U.S. Magistrate Judge Candy Dale overturned the Idaho Constitution’s ban on same-sex marriage in May, saying it violated the U.S. Constitution’s guarantees of equal protection and due process. The state is now appealing her ruling to the 9th Circuit; the appeals court has set arguments for Sept. 8.

License-plate profiling case can proceed to trial

A motorist with Colorado license plates who contends the Idaho State Police profiled him because of his plates and fruitlessly detained and searched his car for marijuana can proceed with his federal lawsuit. Lawyers for Darien Roseen amended the lawsuit complaint after the state of Idaho contended the ISP was protected by the state’s sovereign immunity and couldn’t be sued. All sides have now agreed to proceed under the amended complaint, which drops the ISP as a target but includes ISP Trooper Justin Klitch, along with Payette County, the city of Fruitland, and several of their officers who participated in the traffic stop.

Roseen, 69, was pulled over just as he crossed into Idaho on I-84 in January of 2013, and pressed by Klitch to allow a search of his vehicle for drugs, which he refused. He then was detained and his vehicle searched for hours before he was allowed to go; nothing illegal was found.

His lawsuit charges numerous violations of his constitutional rights, along with discriminatory and selective treatment by profiling. He had Colorado plates and a Washington driver’s license; both states have legalized marijuana, while Idaho has not. A trial in the lawsuit filed in U.S. District Court in Boise likely will be set for early 2015, according to court documents.

Lawsuit filed by teen abused at state juvenile corrections facility

Here's a news item from the Associated Press: BOISE, Idaho (AP) — A recently filed lawsuit seeks compensation for a juvenile boy who was sexually abused by a security supervisor at the Idaho Department of Juvenile Corrections facility in Nampa. The Idaho Statesman (http://bit.ly/1mo9dzs) reports that the suit accuses Julie McCormick of having sex with a then-15-year-old boy several times in 2012. The suit, filed Tuesday, says the activity took place in McCormick's office and other areas in the detention facility out of range of surveillance cameras. The lawsuit also accuses several correctional employees of knowing of McCormick's inappropriate relationship with the boy but not doing anything about it. According to the lawsuit, attorneys are asking for damages to be determined at trial. Department spokesman Jeff Ray declined to comment on the lawsuit. McCormick pleaded guilty to lewd conduct with a minor under 16 last year.

Wasden appeals Medicaid reimbursement case to the U.S. Supreme Court

Idaho Attorney General Lawrence Wasden is asking the U.S. Supreme Court to consider a lawsuit the state lost over Medicaid provider reimbursement rates for services to the developmentally disabled, contending both the U.S. District Court in Idaho and the 9th Circuit U.S. Court of Appeals erred when they ruled against the state. 

The lawsuit, first filed in 2009 by five service providers, contended that Idaho's Department of Health & Welfare was wrong to keep reimbursement rates at 2006 levels when studies showed the cost of providing services was going up. The courts agreed and ordered increases in reimbursement rates that last year cost the state $12 million. “We’re asking the Supreme Court to take up this case because the 9th Circuit’s decision incorrectly permits private parties to interfere with the administration of the state’s Medicaid program and the Legislature’s choices regarding that program,” Wasden said in a news release. “As it stands now, the 9th Circuit’s decision creates enormous administrative and financial consequences for Idaho and every other state in the circuit.”

The U.S. Supreme Court takes up only a tiny portion of the appeals it receives; click below for Wasden's full announcement.

Idaho faces lawsuit over inadvertent lynx trapping by recreational trappers

Five environmental groups filed a federal lawsuit against the state of Idaho today, charging that the state is violating the Endangered Species Act by allowing recreational trapping that inadvertently ensnares federally protected Canada lynx, the AP reports. In the last two years in Idaho, three lynx have been caught in traps intended for bobcats. One was killed after the trapper mistook it for a bobcat, and the two others were released. The groups want limits on Idaho trapping to protect the threatened big cat; click below for a full report from AP reporter Rachel LaCorte.

National settlement will bring relief to 220 Idahoans who lost homes to foreclosure

Idaho has joined 48 states and the federal government in a settlement with SunTrust Mortgage over home loan and foreclosure abuses; under the settlement, the company will make direct payments to 220 Idaho borrowers who lost their homes to foreclosure between 2008 and 2013. Click below for the full announcement from Idaho Attorney General Lawrence Wasden.

Otter wants full-court review of decision overturning Idaho’s same-sex marriage ban

Idaho Gov. Butch Otter is asking the 9th Circuit U.S. Court of Appeals to send Idaho’s same-sex marriage case directly to a full, 11-judge panel of the court, rather than the usual three-judge panel. The request for an initial “en banc” hearing is highly unusual. Typically, a three-judge panel hears appeals, and parties can then request a re-hearing by the larger panel, though that step isn’t required – and they can also appeal a three-judge panel’s ruling directly to the U.S. Supreme Court.

In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because the 9th Circuit is so large – it has 29 active judges – an en banc hearing means an 11-judge panel, consisting of the chief judge and 10 others selected by random draw.

Otter argued in his motion that the larger panel would give the court’s decision greater “perception of legitimacy,” saying, “A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge.”

Carl Tobias, a professor at the University of Richmond School of Law, said the move wouldn’t necessarily fast-track the case. “Even if it’s granted, I don’t know how much faster it’s going to be,” he said. “It might even slow it down.” That’s because it could take longer to convene the larger panel, and for all 11 judges to decide on how to rule in their decision. “You’ve got 11 of them you’ve got to convince.” The 9th Circuit has set the appeal hearing in the case for the second week of September; you can read my full story here at spokesman.com.

Former inmate who won CCA settlement over prison violence presumed drowned

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Idaho sheriff's deputies say a man who won a settlement from Corrections Corporation of America after he sued over prison violence is missing and believed to have drowned. The Valley County Sheriff's Office says 51-year-old Marlin Riggs may have driven his Ford F-150 pickup off a rural road and into a creek near Yellowpine sometime last weekend. The submerged pickup was found Saturday morning, but no one was inside the vehicle. Lt. Dan Smith with the sheriff's office says Riggs is presumed drowned. Riggs was part of a group of inmates who sued the private prison company, contending the Idaho Correctional Center was so violent that it was nicknamed “Gladiator School.” Riggs sought $55 million from CCA. A settlement was reached, but the terms of the agreement were sealed.

Idaho gay marriage plaintiffs seek court costs

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Four couples who successfully sued Idaho Gov. C.L. “Butch” Otter over the state's gay marriage ban are now asking to be reimbursed for nearly half a million dollars of attorney fees and other court costs. The group filed a motion in Boise's U.S. District Court on Tuesday asking that the state be ordered to pay more than $467,000 for the expenses associated with bringing the lawsuit. U.S. District Magistrate Judge Candy Dale overturned Idaho's ban on same-sex marriage earlier this month, saying the ban unconstitutionally denies gay and lesbian residents of their constitutional right to marry. Otter and Idaho Attorney General Lawrence Wasden have appealed that ruling; the case is still pending before the 9th U.S. Circuit Court of Appeals.

In their court filings requesting the fees, attorneys for the four couples wrote, “This is a landmark decision that fully vindicated Plaintiffs’ critical constitutional rights, and it is in the vanguard of a wave of civil rights victories sweeping the country. Accordingly, Plaintiffs are entitled to fully recover the reasonable attorneys’ fees that have been requested.” Click below for a full report from AP reporter Rebecca Boone.

CdA Tribe’s response to state lawsuit: Legally, Texas Hold ‘Em poker is like golf

Texas Hold ‘Em poker is no different than golf under Idaho law, the Coeur d’Alene Tribe argues in its response to a lawsuit from the state – it’s a game of skill, in which players can pay fees to enter tournaments and win prizes for how well they do. “As the statute provides, even if the game of poker is prohibited, that prohibition does not apply if the game can be shown to be a ‘contest of skill,’” the tribe wrote in legal arguments submitted in court Friday; you can read my full story here at spokesman.com.

The state of Idaho sued the Coeur d’Alene Tribe in federal court on May 2, after the tribe opened a poker room at its Coeur d’Alene Casino in Worley. The state argued that poker is flat illegal in Idaho, prohibited both by the state Constitution and law. But the tribe said the type of poker it’s offering – Texas Hold ‘Em tournament play – is legal, and is widely played in Idaho. That makes it a type of Class II gaming, not Class III, under federal law, the tribe argues, so if anyone else can offer it in the state, tribes legally can, too.

9th Circuit grants stay in marriage case

A three-judge panel of the 9th Circuit U.S. Court of Appeals has stayed the federal court decision legalizing same-sex marriage in Idaho while the decision is appealed to higher courts. You can read the 9th Circuit's four-page order here; and read my full story here at spokesman.com. While granting Idaho Gov. Butch Otter and Attorney General Lawrence Wasden's motion for a stay - preventing the change from taking effect while the case wends its way up on appeal - the 9th Circuit panel also granted the request from the four couples who successfully sued, to “expedite” the case, speeding it up from the usual handling in the 9th Circuit.

That means the opening briefs are due July 19, the answering briefs by July 18, with final replies 14 days later; no extensions will be granted; and the 9th Circuit will hear the arguments in the appeal the week of Sept. 8 in San Francisco.

The three-judge panel cited the Utah case in which the U.S. Supreme Court issued a stay putting the overturning of that state's same-sex marriage ban on hold pending appeal, the Herbert v. Kitchen case. However, one of the three judges, while concurring with the decision, wrote that if it weren't for that one stay ruling, he wouldn't have supported it. Judge Andrew D. Hurwitz wrote, “I find it difficult to conclude that the Idaho ban on same-sex marriage would survive interim Ninth Circuit review.”

Hurwitz noted that the Herbert ruling was just a “terse two-sentence order.” He wrote, “Although the Supreme Court's order in Herbert is not in the strictest sense precedential, it provides a clear message - the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.”

Shannon Minter, one of the attorneys for the four Idaho couples who successfully sued to overturn the law, said, “We are very pleased that the court ordered expedited review and understood the critical importance and urgency of the issues in this case for Idaho's same-sex couples and their children. We look forward to defending Judge Dale's careful, thorough decision before the Ninth Circuit.”

Lori Watsen, who with her wife Sharene was among the couples bringing the case, said in a statement, “While Sharene and I are disappointed that the state won't have to respect our marriage right away, we're happy that the case is being fast-tracked. We look forward to the day our home state treats our marriage equally and we have the same legal protections as other married couples in Idaho.” 

Gay marriage backers rally with smiles, cake on courthouse steps

Close to 200 people gathered on the steps of the Ada County Courthouse today for what was originally planned as a celebration of the start of legal gay marriage in Idaho, but thanks to a 9th Circuit temporary stay, instead became a feel-good gathering supporting the progress toward that goal. Here, organizer Emily Walton cuts the donated wedding cake to feed the crowd; same-sex couples, supporters, friends and family members mixed happily, some saying the gathering felt more like a reunion.

“I think this is awesome,” said a smiling Sue Latta, the lead plaintiff in the successful lawsuit that overturned Idaho’s ban on same-sex marriage. “This is not just for us, this is for everybody, young, old, gay, straight. Here’s what I believe: If we voted on it today, the constitutional amendment would not pass.” Periodically, cars passing by on busy Front Street honked their horns, prompting those along the sidewalk to wave and cheer.

Off to one side, four protesters stood quietly with signs saying, “My vote should count” and “I support you Gov. Otter and Attorney General Wasden, Idaho voted, our vote should stand.”

Walton said, “We’ve tried to avoid any really political rally stuff. We want people to be happy – this is still a great crowd.”

Where it stands: Idaho same-sex marriage ruling put on temporary hold by appeals court

Here’s a link to my full story at spokesman.com on the delay in what otherwise was looking to be a historic moment tomorrow – the beginning of legal same-sex marriages in Idaho. Idaho’s gay marriage ban was overturned Tuesday when U.S. Magistrate Judge Candy Dale ruled it unconstitutional. Dale said Idaho must begin issuing marriage licenses to same-sex couples starting Friday morning at 9, but the state filed emergency motions seeking a delay while it appealed the ruling.

On Thursday afternoon, the 9th Circuit U.S. Court of Appeals issued a temporary stay, putting a hold on gay marriages in Idaho while it considers the state’s motions. The court didn’t signal how long it would take; for now, everything’s on hold. Deborah Ferguson, lead attorney for the four couples who successfully sued to overturn Idaho’s ban, noted that the 9th Circuit hasn’t decided whether Dale’s order should be stayed while it’s appealed to higher courts. It’s just given itself more time to consider the motions for such a stay and the couples’ objections to it.

Wasden files brief, says state would be harmed if marriage ruling wasn’t stayed, then was overturned on appeal

Idaho Attorney General Lawrence Wasden has filed a response brief with the 9th Circuit Court of Appeals, pressing for his motion to stay the change in Idaho’s marriage laws until appeals have been completed. Wasden responds to arguments from lawyers for four same-sex couples who urged the 9th Circuit not to stay the ruling. U.S. Magistrate Judge Candy Dale issued the ruling Tuesday, declaring Idaho’s ban on same-sex marriage unconstitutional and ordering the state to permit same-sex marriages starting Friday at 9 a.m. The 9th Circuit has now issued a temporary stay, delaying that, while it considers motions from Wasden and Gov. Butch Otter to hold off on the change while the federal court decision is appealed.

Wasden argues that the U.S. Supreme Court’s order staying the effect of a decision overturning Utah’s same-sex marriage ban was “an unmistakable signal by the Supreme Court that lower federal courts should not disrupt the status quo through intrusive injunctive relief.” He also argues that there are ways the state could be harmed if there’s no stay, but the decision later is overturned on appeal, because the state would process everything from tax returns to worker’s compensation spousal benefits under the ruling, and then would have to figure out how to undo those things. All those take “significant public resources to administer,” he argued. You can read the 7-page brief here.

Lead plaintiff: ‘Burden is on the state to prove that our marriages are detrimental to anyone, and they can’t’

“As hard and as heart wrenching as this ‘temporary stay’ is for all those people who were planning to finally get married tomorrow, this may be the best thing that the court could have done,” Sue Latta, the lead plaintiff in Idaho’s same-sex marriage court case, told Eye on Boise this afternoon. “If they had had a knee-jerk reaction, we probably would have gotten a ‘stay pending appeal,’ which will take many months, but they didn't do that. They are going to take a hard look at all the new case law that has been generated … and whether it seems like the state will ultimately be successful, and I believe that they are going to deny the stay. In my heart I believe it because we are on the right side of this.”

Noted Latta, “The burden is on the state to prove that our marriages are detrimental to anyone, and they can't. We are going to win because all we are asking for is to be treated like everyone else, and that is not an unreasonable thing to ask for.”

Latta and her wife Traci Ehlers, of Boise, have been together for 10 years, and were legally married in California in 2008. They are one of four couples who successfully sued to overturn Idaho’s constitutional ban on same-sex marriage; U.S. Magistrate Judge Candy Dale ruled the ban unconstitutional on Tuesday. The state is appealing to the 9th Circuit Court of Appeals.

Idaho county clerks prepare for marriage law changes

The Idaho Association of Counties convened county clerks from across the state in a webinar this afternoon to go over procedures to comply with the federal court decision this week legalizing same-sex marriage in the state. Just before the session started, the news came that the 9th Circuit Court of Appeals had issued a temporary stay, delaying the change, which had been scheduled to take effect Friday morning at 9. “They were pretty well ready,” said Dan Chadwick, IAC executive director. “Now we’ve been given a little bit of breathing room and we can fine-tune it a little bit more.”

The main change needed is to forms for marriage licenses, which now identify “bride” and “groom.” “The question is do you use bride-bride, groom-groom, spouse, person – there are a number of different opinions out there, and all of them are correct,” Chadwick said. “Part of the discussion was to make sure that the marriage license itself ends up in a format that is a family keepsake, because it is.”

He said, “We have given ourselves a deadline of Tuesday of next week to finalize the forms, because we don’t know what the courts are going to do. What we want to do is be ready if the stay is lifted and the injunction goes into effect, and we’re pretty close.”

The county clerks conferred with Idaho Attorney General Lawrence Wasden and representatives of the state’s bureau of vital statistics at the webinar, Chadwick said. “We had over 50 participants on the webinar. My guess is we had pretty close to every county participating.”

Said Chadwick, “If the injunction goes into effect, the counties are ready to perform their duty.”

Minister ‘sad’ at cancelling plans to perform free same-sex weddings at Kootenai courthouse tomorrow

North Idaho Unitarian Universalist Fellowship minister Tracy Springberry had planned to be at the Kootenai County Courthouse in the morning to perform same-sex marriages for free for anyone who wanted them, and was disappointed to hear this afternoon of the temporary stay from the 9th Circuit, delaying the change in Idaho’s marriage laws. “That makes me mad,” she said. “I was so hopeful that would not happen. … I guess we won’t do that.”

Springberry said Unitarian Universalists have been performing same-sex marriage ceremonies since the ‘70s. “We really believe, in my tradition, that people who are in committed, loving relationships need to have those recognized by their communities and their societies and have legal protections, and that everyone should be treated equally and respectfully,” she said. “The status of things in our country at this point sometimes means I cannot live out my faith – for me, it’s a very important religious issue.”

Springberry said she’d put the word out that she’d be at the courthouse, following the lead of other Unitarian Universalists in other states when their states legalized same-sex marriage. “I’m sad,” she said. “But I kind of feel like this is sort of the way this goes. It’ll be a bumpy ride. I think it’ll probably pass eventually.”

Wedding reception-style party still on at courthouse in the morning, despite stay…

A party at the Ada County courthouse featuring wedding cake for 300 is still on, says organizer Emily Walton, even though the 9th Circuit Court of Appeals has issued a temporary stay of the ruling overturning Idaho’s ban on same-sex marriage. The ruling otherwise would have taken effect at 9 a.m. on Friday.

“We knew all along a stay could be issued at any time,” Walton said. “I know it won’t be as fun at all, but I think it’s really good to get together and show support.” Now, instead of celebrating same-sex couples getting married, she said, “It’s about couples who can’t get married now.”

The cake has been ordered from – and largely donated by – Pastry Perfection, and will feature white frosting, rainbow sprinkles and rainbow ribbon, Walton said.  Flying M has donated coffee for the party. “We really wanted it to be just like a wedding reception,” she said. “I know eventually gay people in Idaho will be able to get married, just maybe not tomorrow.”

Otter says he ‘appreciates’ the 9th Circuit’s temporary stay on marriage ruling, avoids ‘chaos and confusion’

Gov. Butch Otter issued the following statement on the temporary stay issued this afternoon by the 9th Circuit Court of Appeals, blocking legal same-sex marriage from beginning tomorrow morning at 9:

“I appreciate the 9th U.S. Circuit Court of Appeals stepping in to ensure Idaho will not have to endure the same kind of chaos and confusion that Utah faced after a similar lower-court decision. Today’s ruling stays the federal magistrate’s order and maintains the status of marriage as defined by the Idaho Constitution – between one man and one woman. Meanwhile, I am proceeding with an aggressive challenge in the appellate court. I’m hopeful for a better outcome, but in any event I am committed to defending our Constitution and the will of Idaho voters.” 

9th Circuit issues temporary stay, blocks same-sex marriages from starting tomorrow in Idaho

The 9th Circuit Court of Appeals has just issued a stay, temporarily halting U.S. Magistrate Judge Candy Dale’s order permitting same-sex marriage in Idaho from taking effect as scheduled Friday morning. The appeals court’s brief order says Dale’s decision “is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”

The court didn’t signal how long it would take to consider those motions. For now, everything’s on hold.

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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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