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9th Circuit lets Otter file reply, but not 57-page amicus brief

The 9th Circuit U.S. Court of Appeals today granted Idaho Gov. Butch Otter’s motion to submit additional arguments in the state’s same-sex marriage case, but rejected without comment his bid to submit a copy of a 57-page amicus brief from a Louisiana case that Otter argued presents “a gold mine of scholarship regarding the practical, real-world impact of redefining marriage.” Otter wants an en banc review, by an 11-judge panel, of the earlier 9th Circuit decision overturning Idaho’s ban on same-sex marriage as unconstitutional, which was made by a three-judge panel. Same-sex marriage has been legal in Idaho since Oct. 15; you can read the court's latest order here.

Otter files additional arguments to 9th Circuit in marriage case

Idaho Gov. Butch Otter has filed a motion with the 9th Circuit Court of Appeals asking that the state be allowed to file additional arguments in its motion for an en banc review, a reconsideration by an 11-judge panel of the earlier three-judge panel’s rejection of Idaho’s ban on same-sex marriage as unconstitutional. “Since the Governor submitted his petition, the Sixth Circuit has issued an opinion counter to this Court’s ruling in the case, requiring a reply by the Governor regarding this new circuit split,” Otter’s attorneys wrote. They also cited an amicus brief filed in the Fifth Circuit same-sex marriage case in Louisiana, and submitted a copy, saying it has presented “a gold mine of scholarship regarding the practical, real-world impact of redefining marriage.”

“Plaintiffs … have no answer to Gov. Otter’s showing that by its ‘explicit terms’ Idaho’s marriage laws discriminate facially, not on the basis of sexual orientation, but on the basis of biological complementarity,” the lawyers wrote. “Removing the man-woman definition threatens serious harm to the institution of marriage, and, thus, to the children of heterosexual couples.” You can read Otter's brief here.

Latest tally on state’s legal costs for IEN lawsuit: $874,775

The state’s legal bills for defending its now-voided contract for the Idaho Education Network high school broadband service is climbing toward $1 million; you can read my full story here at spokesman.com. The State Department of Administration, in response to a request from The Spokesman-Review, reported last night that it's paid $605,070.73 in legal fees to date for the case, in which private attorney Merlyn Clark of Hawley Troxell is representing the state. “There are additional legal fees paid by the Attorney General’s office that are not included in this number,” IEN spokeswoman Camille Wells said in an email.

The department has been paying all the legal bills since fiscal year 2012, but in 2010 and 2011, the Idaho Attorney General’s office paid 75 percent and the state’s risk management bureau paid 25 percent. The AG’s office paid $269,704 during that time period, with the risk management share coming in at $89,901.33; but Wells clarified late this afternoon that the risk management share was included in the Admin Department amount. So all told, that brings the total cost to taxpayers to date to $874,775.

Idaho officials heartened by 6th Circuit ruling against gay marriage, say they’ll press appeal to U.S. Supreme Court

Idaho officials say they have new hope that their state’s same-sex marriage case could be taken up by the U.S. Supreme Court, after Thursday’s 6th District ruling upholding bans on gay marriage in four states – the first federal appeals court to rule that way, after a string of rulings unanimously going the opposite direction. Those have included Idaho’s case; the 9th Circuit U.S. Court of Appeals rejected Idaho’s appeal and overturned the state’s ban on same-sex marriage last month. Gay couples have been legally able to marry in the state since Oct. 15, and the state now recognizes marriages of same-sex couples that took place legally in other states.

Thursday’s ruling, which upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, is “significant because it establishes a conflict among the circuits, and creates a situation in which the Supreme Court is likely going to have to resolve the issue,” said Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden. “Because of that, we are moving forward with our plans to file a petition for a writ of certiorari with the U.S. Supreme Court.” That’s the process for asking the high court to take up an appeal. Dvorak said the state has until Jan. 5 to file that petition.

Idaho Gov. Butch Otter, who already has a petition pending with the 9th Circuit asking that court to reconsider its ruling, welcomed the 6th District ruling. “This decision reinforces many of the same points I have made in federal court here and in the 9th Circuit – that defining marriage is a states’ rights issue under the Tenth Amendment,” Otter said in a statement. Otter has continued to press the case, even forcefully speaking out against same-sex marriage in his election-night victory speech to GOP supporters late on Tuesday night. “I’m going to continue that fight as long as I possibly can,” he declared to cheers and applause.  You can read my full story here at spokesman.com, and watch video of the governor’s election-night comments here.

Seven more charge sexual abuse at state juvenile detention center, seek millions in damages

Seven more people have come forward to say they were sexually abused by staffers at a state-run juvenile detention center in southwestern Idaho, the AP reports today. The new allegations were detailed in a tort claim filed with the state late Tuesday afternoon, and bring the number of former detainees at the Idaho Department of Juvenile Correction detention center in Nampa alleging sexual abuse there to at least 10. Click below for a full report from AP reporter Rebecca Boone.

Idaho’s legal bill for same-sex marriage appeals tops $90,000

Idaho is paying another $10,000 to outside attorneys for its continued appeals of the federal court decision overturning the state’s ban on same-sex marriage as unconstitutional. According to records obtained pursuant to a public records request, Gov. Butch Otter’s office has agreed to pay Washington, D.C. attorney Gene Schaerr $10,000 for filing a petition to the 9th Circuit Court of Appeals asking the court to have a larger, 11-judge panel re-hear Idaho’s case in an “en banc” review.

The flat fee of $10,000 is just for the petition; the agreement leaves open the possibility of Otter hiring Schaerr to do additional, related work. You can read it here.

That brings the state’s legal bill to challenge U.S. Magistrate Judge Candy Dale’s May 2014 decision overturning the state’s ban on same-sex marriage to $91,477 so far, including $86,920 for private attorneys hired to represent Otter. The figure also includes some costs incurred by Attorney General Lawrence Wasden’s office in the original appeal to the 9th Circuit, but Wasden used staff attorneys, so the expenses were small.

The state also could be on the hook for the plaintiffs’ attorney fees and costs for the original federal lawsuit, since the state lost; a pending motion asks the U.S. District Court to order Idaho to pay nearly half a million dollars. The state also could be asked to pay the plaintiffs’ fees and costs for the state’s unsuccessful appeals.

State’s legal bill for same-sex marriage appeals tops $80,000, still growing

Idaho’s legal bill for challenging a federal judge’s decision overturning the state’s ban on gay marriage has now topped $80,000, and that was before Gov. Butch Otter’s latest appeal to the 9th Circuit. In response to a public records request, Otter’s office has released an Oct. 7 agreement with Washington, D.C. attorney Gene Schaerr to pay a flat fee of $10,000 for two specific legal briefs: One appealing to the 9th Circuit Court of Appeals for a stay, to keep its decision legalizing same-sex marriage in Idaho from taking effect; and another appealing to the U.S. Supreme Court for the same thing.

Both were filed, and both were unsuccessful; same-sex marriage became legal in Idaho on Oct. 15.

Prior to that, Idaho had spent $71,477 to challenge U.S. Magistrate Judge Candy Dale’s May 2014 decision overturning the state’s ban on same-sex marriage, $66,920 of that for outside lawyers hired to represent Otter. The bills for the stay requests bumped the total up to $81,477, including $76,920 for private attorneys.

Since then, Otter has filed a petition with the 9th Circuit requesting an en banc review, a review by a larger, 11-judge panel, of that court’s earlier ruling by a three-judge panel. Otter also filed a motion for permission to exceed the 15-page limit on such petitions; the court granted the motion and allowed Schaerr to file a 35-page brief on behalf of Otter. The 9th Circuit has now asked the plaintiffs in Idaho’s same-sex marriage case to file a response to Otter’s petition within 21 days.

The governor’s office has not yet responded to requests for information on costs for that legal action. Earlier, in the state’s appeal to the 9th Circuit, Otter was represented by private attorney Monte Stewart, who charged the state $250 an hour. Stewart has withdrawn from representing Idaho; Otter replaced him with Schaerr.

Idaho Attorney General Lawrence Wasden also participated in the original appeal to the 9th Circuit, but did so using staff attorneys, so there were no outside legal bills. Wasden has announced he’s planning to file an additional appeal to the U.S. Supreme Court in the coming weeks.

The state also could be on the hook for the plaintiffs' attorney fees and costs for the original federal case, since the state lost; a pending motion asks the U.S. District Court to order Idaho to pay nearly half a million dollars.

Otter’s other late-night filing to 9th Circuit: Motion to file 35-page, rather than 15-page, en banc petition

Well, here’s the answer about the over-length petition Idaho Gov. Butch Otter filed to the 9th Circuit late last night: He also filed a motion, which was unopposed by the plaintiffs, for permission to file an over-length brief of up to 35 pages, though court rules limit en banc petitions to 15 pages; you can read the motion here. Otter’s reasoning? “The panel misunderstood, and for the most part ignored, Governor Otter’s fundamental argument regarding how the panel’s redefinition of an institution thousands of years old into a genderless union will negatively impact that institution, and with it Idaho and its citizens, especially children of heterosexuals. This needs to be carefully explained.”

Otter petition to 9th Circuit: ‘Policy-making masquerading as law’

It’s been a long day, but now, a bit after 10 p.m. Boise time, Gov. Butch Otter’s petition for an en banc review of the 9th Circuit Court of Appeals ruling in Idaho’s same-sex marriage case finally has been filed. You can read it here. Its conclusion says, “The panel’s decision appears to be judicial policymaking masquerading as law. But it is bad law, conflicting with numerous decisions of this Court, other circuits and the Supreme Court. And it is even worse policy, creating enormous risks to Idaho’s present and future children—including serious risks of increased fatherlessness, reduced parental financial and emotional support, increased crime, and greater psychological problems—with their attendant costs to Idaho and its citizens. For all these reasons, the panel decision merits en banc review.”

Otter had an outside attorney to help with the 83-page filing, Gene Schaerr of Washington, D.C. The argument itself, outside of all tables of content, attachments and so forth, runs 25 pages. Here’s the odd thing: The 9th Circuit’s rules about en banc petitions are very specific, according to its guide to practice for attorneys, which is posted on the 9th Circuit’s website here. The deadline is 14 days after the decision; because the decision was issued Oct. 7, today is the deadline. And, the practice guide says, on Page 79, “Length. A petition for rehearing is limited to 15 pages. Fed. R. App. P. 35(b)(2).”

Does that matter? Might Otter’s petition be disqualified because it exceeds the limit? I don’t know the answers to these questions and it’s too late to ask anyone. But I’ll be interested to find out in the morning.

Monte Stewart no longer represents Otter in same-sex marriage case

A check of the 9th Circuit docket for Idaho’s same-sex marriage case doesn’t show Gov. Butch Otter’s petition for an en banc review yet, but it does show another filing: Attorney Monte Neil Stewart has withdrawn from representing Otter in the case. Stewart, who argued both Idaho’s and Nevada’s cases at the 9th Circuit, filed a controversial petition for rehearing in Nevada’s case last week claiming that the three-judge panel that heard both states’ cases was intentionally stacked with judges sympathetic to the plaintiffs. The charges, which question the integrity both of the judges who heard the case and the entire 9th Circuit administration for how it assigns judges to cases, raised eyebrows around the country and were highly unusual; the court hasn’t yet acted on Stewart’s petition.

When Stewart filed his petition, Otter’s office had no comment on it.

Otter says he’ll file petition for en banc review of 9th Circuit ruling in Idaho’s gay marriage case

Idaho Gov. Butch Otter announced today that he's filing a petition with the 9th Circuit U.S. Court of Appeals for an en banc re-hearing of Idaho's same-sex marriage case; you can read my full story here at spokesman.com. “I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society,” Otter said in a statement; click below for his full statement. He said his office will file the petition later today.

An en banc review at the 9th Circuit, because the circuit is so large, would mean that a larger 11-judge panel would re-hear the case, after a three-judge panel made the decision earlier. In smaller circuits, an en banc review is a rehearing by the full court. Otter and Idaho Attorney General Lawrence Wasden earlier requested that 9th Circuit assign a full 11-judge panel to hear Idaho's case in the first place, rather than a three-judge panel; that request was denied. Wasden is not joining with Otter in today's petition. However, his spokesman, Todd Dvorak, said today that Wasden does plan to file an appeal to the U.S. Supreme Court in the coming weeks.

Ada County sets marriage license record: 45 today, all to same-sex couples

As of the close of business today at 5 p.m., Ada County had set a record for marriage license issuance, issuing 45 licenses, all of them to same-sex couples. That's according to Chief Deputy County Clerk Phil McGrane, who said, “This is the most licenses Ada County has issued in a single day.”

Here, in this AP photo, Guy Wordelman, left, marries James Wordelman outside the courthouse this morning, with Pastor Renee McCall officiating.

9th Circuit issues published opinion on legal reasons for lifting of stay; that now can be cited in other cases

The 9th Circuit Court of Appeals issued a published opinion today, detailing its legal reasoning for lifting a stay and putting into effect its order legalizing same-sex marriage in Idaho. “We decline to deny the plaintiffs their constitutional rights any longer,” the unanimous three-judge panel of the court wrote in the nine-page opinion. They also went through the arguments Gov. Butch Otter offered in earlier legal filings opposing the lifting of the stay, and rejected all of them. “Governor Otter can no longer meet the test for the grant or continuation of a stay,” the court wrote.

It also noted that the full U.S. Supreme Court also ruled against Otter’s bid for a continued stay to prevent same-sex marriages from starting in Idaho. “Because the Supreme Court has thus rejected the argument that a stay was necessary … we decline to second-guess that decision,” the court wrote.  It noted that same-sex marriage is now legal 33 states plus the District of Columbia. “This figure includes Idaho and Alaska,” the court wrote.

The 9th Circuit judges also wrote that they nevertheless granted the state an additional opportunity to file an emergency stay request with the Supreme Court by making the lifting of the stay effective today, rather than yesterday, “even though we see no possible basis for a stay.” No additional stay was sought.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said, “We’ll analyze it and use that as part of our decision-making process going forward.”

Deborah Ferguson, attorney for the four couples who successfully sued to overturn Idaho’s ban on gay marriage, said, “It makes public their reasoning for lifting the stay, and so that’s, I think, very helpful. I’m very glad they did that.” She noted that as a published opinion, the court’s opinion now can be cited in other cases. You can read it here.

Idaho same-sex couples rejoice as marriages begin

Here’s a link to my full story at spokesman.com on the advent of same-sex marriage in Idaho this morning, which drew a crowd of couples and hundreds of their supporters to the Ada County Courthouse for marriage licenses. In just under half an hour, Ada County issued 19 licenses. Wedding ceremonies followed on the courthouse steps, complete with ministers, flowers, cake, and hundreds of well-wishers.

Minister: ‘By power vested by state of Idaho, I now pronounce you wife and wife’

Numerous wedding ceremonies were performed on the Ada County Courthouse steps this morning after same-sex couples received their long-awaited marriage licenses. At the close of one of them, as two men were being married by another minister nearby, Presbyterian minister Marci Glass said, “By the power vested in me by the state of Idaho, I now pronounce you wife and wife.” The two brides hugged, and the crowd cheered.

A few blocks away at Boise City Hall, acting Mayor Maryanne Jordan officiated inside the council chambers in weddings including those for two of the couples who sued to overturn Idaho's ban on same-sex marriage. A big windstorm has now blown into Boise, pushing festivities inside. 

At least a dozen licenses issued in first 20 minutes in Ada County…

In the first 20 minutes that marriage licenses could be legally issued to same-sex couples in Ada County, county Clerk Chris Rich estimated that more than a dozen have been issued. “I would say we've done at least 12 to 15,” he said. Things have gone smoothly thus far, Rich said. “We had a paper jam, and one machine was low on toner, even though we tested all the machines yesterday,” he said ruefully, but that was quickly fixed. “Everybody knew they needed to have cash” for the $30 fee.

For now, Ada County's marriage license forms have been altered to offer applicants two choices: Bride and groom, as before, and “spouse and spouse.” That may differ in other counties, Rich said. He said eventually there may be more options, such as bride and bride, groom and groom, or no specification.

Pictured above, Shelia Robertson and Andrea Altmayer watch as their license is issued, the first one in Ada County. 

First Ada County licenses issued to two plaintiff couples from Idaho’s same-sex marriage case

There was a loud countdown and then a cheer from the crowd as the 10 o'clock hour arrived at the Ada County Courthouse this morning, where dozens of same-sex couples and hundreds of their supporters are gathered to celebrate the start of legal same-sex marriage in Idaho. Shelia Robertson and Andrea Altmayer, shown above with son Bridger, and Amber and Rachael Beierlie, who were at the next station at the marriage license counter, were the first to receive licenses. They're among four Idaho couples who sued successfully to overturn Idaho's ban on same-sex marriage; the other two couples already were legally married in other states, and sought recognition of their marriages.

Deborah Ferguson, the women's attorney, said, “We're thrilled - the day has come, it's actually here.” Both couples are headed over to Boise City Hall immediately after receiving their marriage licenses, she said, where they'll be married by Acting Mayor Maryanne Jordan. “There's been enough twists and turns here,” Ferguson said. “They've waited a long time - they're ready.”

Big crowd awaits marriage licenses at Ada County courthouse…

There's a big crowd both inside and outside the Ada County Courthouse this morning for the issuance of marriage licenses to same-sex couples, which starts at 10 a.m….

Otter: ‘We have done all we can through the courts for now to defend traditional marriage in Idaho’

Idaho Gov. Butch Otter just issued this statement:

“The 9th U.S. Circuit Court of Appeals has issued its mandate for enforcement of decisions overturning the Idaho Constitution’s prohibition on same-sex marriage effective at 10 a.m. MDT, 9 a.m. PDT on Wednesday, October 15. I continue to believe that the federal courts are mistaken in abandoning the sanctity of traditional marriage and in undermining the will of Idaho voters and each state’s right to define marriage. But we are civil society that respects the rule of law. We have done all we can through the courts for now to defend traditional marriage in Idaho.”

Asked if that final comment means Otter is dropping his appeals in Idaho’s court fight to defend its ban on same-sex marriage, Mark Warbis, Otter’s communications director, said, “It says exactly what we wanted to say, exactly what it does say.” Asked if Otter has filed any further motions or appeals in the case today, Warbis said no, but wouldn’t comment on whether Otter might file anything further after today. “It says 'for now,'” he said.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said, “We are keeping our legal options open,” but he said, “We don’t have anything planned today or tomorrow.”

Former Otter lawyer charges bias in 9th Circuit’s three-judge panel selection

Monte Neil Stewart, the attorney who represented both Idaho and Nevada in oral arguments at the 9th Circuit Court of Appeals in same-sex marriage cases, today leveled a highly unusual charge at the 9th Circuit: That the three-judge panel selected to hear Idaho’s and Nevada’s cases wasn’t selected through a “neutral” process, and instead was purposely stacked with judges favorable to same-sex marriage in order to achieve an outcome favorable to the plaintiffs.

“We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious,” Stewart wrote in legal filings today with the 9th Circuit, requesting a full en banc review of Nevada’s case. “But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State.”

Stewart contended that a statistical analysis he had completed by an expert statistician shows it’s highly unlikely that 9th Circuit Judges Stephen Reinhardt and Marsha Berzon would be selected to hear Nevada’s case, after also sitting on, in Reinhardt’s case, four other cases in the past five years dealing with gay rights, and in Berzon’s, five other cases. “Sophisticated statistical analysis validates the reasonable person’s sense that something is amiss,” Stewart wrote. “Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this Circuit. That perception gives rise to an appearance of an uneven playing field.”

Carl Tobias, a law professor at the University of Richmond in Richmond, Va., who has closely followed same-sex marriage cases, said an biased selection process is “virtually unheard of” in federal appeals courts. “The three-judge panels are randomly drawn,” Tobias said. “It is virtually unheard of that the people in charge of the process would game the system. My whole sense of the federal appeals courts is that the judges are too professional to allow that to happen.”

You can read Stewart’s full petition for rehearing here. Stewart was Gov. Butch Otter’s private attorney for Idaho’s unsuccessful appeal to the 9th Circuit, after a U.S. magistrate judge overturned Idaho’s ban on same-sex marriage in May as unconstitutional. In his latest legal filings, Otter has replaced Stewart with Washington, D.C. attorney Gene Schaerr.

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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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