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Idaho taxpayer costs so far for same-sex marriage appeal: $71K

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.

Reactions to today’s 9th Circuit arguments…

Here's a link to my full story at spokesman.com on today's arguments over Idaho's invalidated same-sex marriage ban at the 9th Circuit U.S. Court of Appeals. After today’s arguments, attorney Deborah Ferguson, who made the arguments on behalf of four Idaho couples who challenged the ban, issued this statement:

Today’s arguments reflected the Ninth Circuit panel’s thorough preparation and careful attention to the serious constitutional issues raised by Idaho’s discriminatory marriage laws. In the past few months, three other federal appeals courts have ruled that laws that deny same-sex couples the freedom to marry deprive their families of equal dignity in violation of the Fourteenth Amendment. We hope the Ninth Circuit will reach the same conclusion and strike down these unjust laws.”

Sue Latta, the lead plaintiff in the case, said, “Traci and I were thrilled to be able to watch our case being argued in one of our country’s most important courts. The judges clearly have studied the case very carefully, and we are hopeful the court will rule soon that the state must treat our family with the same respect as it treats other families.”

Jon Hanian, spokesman for Idaho Gov. Butch Otter, said, “We’re not going to have any comment beyond what was said in court.”

Deputy Idaho Attorney General Scott Zanzig said, “We’re glad to have the case submitted, and we’re appreciative of the fact that the 9th Circuit is going to consider our appeal. I think it’s always difficult to tell just from being at the arguments how things are going to go. … We’re looking forward to a decision.”

Asked why the state opted to yield all its time for arguments to Gov. Butch Otter’s private attorney, Monte Neil Stewart, rather than split the time between Otter’s and Attorney General Lawrence Wasden’s attorneys – including Zanzig, who was present at the counsel table for the arguments – Zanzig said he couldn’t go into detail on that point. “In the 9th Circuit, you get a very short time to argue, and breaking it up can be difficult on anyone being effective,” he said. “But in terms of why that choice was made … I can’t comment on pending cases.”

Carl Tobias, a law professor at the University of Richmond in Virginia who’s been tracking same-sex marriage cases around the country, said the arguments didn’t go well for the state. “I’m glad I wasn’t trying to make those arguments,” he said. “It’s tough when it’s that difficult an argument to make. I just don’t think that those judges were going to be persuaded, and I don’t think they were.”

The state’s arguments focused on how it believed the ban was better for Idaho children in the long run; when pressed by the judges, attorney Monte Stewart suggested that legalizing same-sex marriage would be worse for Idaho kids than the proliferation of divorce that followed no-fault divorce laws. Said Tobias, “That’s not a winning argument, I don’t think.”

Stewart, same lawyer who argued for Idaho, now arguing in favor of Nevada ban…

Monte Neil Stewart, the same attorney who argued Idaho’s case for its same-sex marriage ban at the 9th Circuit, is now defending Nevada’s ban as an intervenor on behalf of the “Coalition for the Protection of Marriage.” At one point in his arguments, he slipped and said “Idaho” instead of Nevada; Judge Stephen Reinhardt corrected him. Amid laughter, Stewart said, “I’m a fourth-generation Nevadan, I’m going to switch gears here.”

A few minutes later, he did it again. Judge Ronald Gould said, “Counsel when you say Idaho, do you mean Nevada?” Amid a quick murmur of laughter again, Stewart said, “This is a lesson to all counsel not to do back-to-back arguments.”

9th Circuit arguments on Idaho marriage law wrap up with reference to future Supreme Court decision…

As the arguments in the 9th Circuit today on Idaho’s same-sex marriage ban wrapped up, Idaho attorney Monte Stewart made a reference to a position taken by U.S. Supreme Court Justice Anthony Kennedy. Judge Stephen Reinhardt interrupted him, saying, “I think you’re going to have an opportunity to find out what Justice Kennedy thinks.” That drew laughter – the U.S. Supreme Court is expected to take up the same-sex marriage issue, likely in other states’ cases, in the coming year.

Reinhardt announced, “This argument will be submitted.”

Of crystal balls and messages…

Monte Stewart, now up for his final five minutes of argument, told the 9th Circuit Court of Appeals that if it’s a question of who has the best crystal ball, Idaho’s crystal ball is even better than the court’s – because it reflects “its collective wisdom” as expressed through the Democratic process, the voters’ approval of a constitutional amendment passed by two-thirds of the state Legislature.

“This is a contest between two different messages,” Stewart told the court. “The message of man-woman marriage is men, you’re valuable and important in the upbringing of the children you bring into this world. Women, you’re valuable and important in the upbringing of the children you bring into this world. Genderless marriage does not send that message. Indeed, it undermines it.”

9th Circuit Judge Marsha Berzon asked Stewart to compare his reference to Idaho’s “crystal ball” in knowing what its people support, through their vote for the constitutional ban on same-sex marriage, to the Loving vs. Virginia case, in which the court overruled bans on interracial marriage. “There were competing crystal balls” in Loving, Berzon said.

Stewart objected. “I suggest there were no crystal balls, because the state never advanced a legitimate interest,” he said. Berzon responded, “It’s one that doesn’t sound very legitimate to us now, but they thought there were legitimate interests.” People objected to mixing of races and thought it would harm society, she noted. Stewart said he hoped she wasn’t comparing that to Idaho’s interest in “preventing fatherlessness and motherlessness.”

Ferguson: ‘You’re imposing a very great harm, for no benefit’

Judge Stephen Reinhardt asked Boise attorney Deborah Ferguson if she thought marriage laws have any effect on “bonding between a mother and a father and a child, and that structure being a better structure for society?” He was referring to earlier arguments from attorney Monte Stewart on behalf the state of Idaho. “I don’t think it has any effect on that,” Ferguson responded.

“I don’t see the marriage of opposite sex and same-sex couples as these different regimes that are being portrayed by the state. My clients are looking for the opportunity to participate in traditional marriage, to marry and have that very intimate adult bond and protect their children in that fashion. And I don’t think that opposite-sex couples are looking to see what same-sex couples are doing, and saying that somehow if same-sex couples are allowed to celebrate and have those very personal bonds, that it’s going to serve as a disincentive for them to marry or to have children or to stay together with their children. … You’re imposing a very great harm, for no benefit.”

Ferguson: Discrimination that ‘stretches beyond the grave’

Deborah Ferguson, attorney for four Idaho couples who successfully sued to overturn the state’s ban on same-sex marriage, said the harms the ban imposes on her clients and those like them are many. “The law imposes a cradle-to-grave discrimination on same-sex couples in Idaho. It pushes them outside,” she said. “Children of gay and lesbian parents in Idaho, unless they have second-parent adoption … don’t have two legal parents to protect them.”

That does send a message in Idaho, Ferguson said, echoing an earlier argument from opposing attorney Monte Stewart about how Idaho's marriage laws send a message. “It tells those children that their parents’ marriages are not worthy of … respect,” she said, “a very harsh message.” She added, “It stretches beyond the grave,” noting that the Idaho State Veterans Cemetery refuses to bury the remains of veterans who are same-sex spouses together.

Judge: Do you care basis as long as you win? Answer: No

Judge Stephen Reinhardt asked attorney Deborah Ferguson, “Do you really care if we decide on fundamental right or equal protection as long as you win?” Amid laughter, she responded, “No.”

“I think the due process and the equal protection arguments are both very important,” Ferguson said, “and they’re very related. I think the Idaho case in front of the court presents both of them squarely to the court, so we would like to see the court decide it on both of those bases.”

Ferguson: Idaho has ‘most sweeping ban’ on same-sex marriage in 9th Circuit

Boise attorney Deborah Ferguson is now arguing the case for the four lesbian couples who successfully sued to overturn Idaho’s ban on same-sex marriage. Idaho has “the most sweeping” such ban in the 9th Circuit, she said. “It bars the possibility of any form of relationship recognition for its same-sex couples, relegating tem to a permanent second-class status,” she told the court.

Rejecting the state’s arguments that the ban is better for children, Ferguson said, “There is no logical nexus here. Allowing same same-sex couples to marry will benefit them and those children.”

Judge Marsha Berzon quickly interrupted her to quiz her about the appropriate level of scrutiny under which the court should consider the case. “I think that the law is unconstitutional on all three bases,” Ferguson said.

Stewart: Same-sex marriage would be worse for Idaho kids than divorce

After Idaho attorney Monte Stewart argued that legalizing same-sex marriage would send a message to society that promotes fatherlessness and motherlessness for Idaho children, Judge Stephen Reinhardt of the 9th Circuit Court of Appeals asked him, “Does Idaho prohibit divorce because it sends a bad message to people? … Doesn’t that do more damage to the ideal that you profess Idaho should be telling people, that they ought to be home with the mother and the father and the child?”

Stewart said no-fault divorce and the expansion of divorce has been bad for children in Idaho. “Pulling the man-woman meaning out of marriage and going with genderless marriage will be the coup de grace,” he said. “We think the effects will be much worse.”

Judge Marsha Berzon asked Stewart, “Is the assumption of your argument that children who are raised in a stable same-sex relationship from birth … (are worse off) than children who are raised in the 30 percent of the houses in Idaho in which by the age of six they are not withtheir biological parents?”

Stewart responded, “Everybody who loves children, and that includes Idaho … hopes sincerely, genuinely, that the conclusions of the no-differences study are valid. Because if they’re valid, then those children are going to be better off.” But Idaho, he said, is “skeptical.” “Idaho has concluded that the price is too high for switching to a radically different meaning at the core of marriage, one that Idaho … believes is going to result … in a higher level of fatherlessness,” he said.

Judge Berzon: ‘This train has left the station’

9th Circuit Judge Marsha Berzon asked Idaho attorney Monte Stewart the percentage of children who grow up in what he describes as the ideal environment – being reared by their married, biological mother and father. Stewart said in Idaho, it’s 68 percent up until age 6, and 58 percent up to age 17. That’s among the highest rates in the country, he said.

“What strikes me is that this train has left the station,” Berzon said, “in the sense that the change has occurred in American marriages before all this. … When women were not able to own property and had to do everything their husbands said and so on, you had a different institution, but that was the core of the heterosexual marriage tradition to begin with. Once all of that changed, yes the number of people who had children in marriage went down considerably, and that may be a bad thing, but it did not have anything to do with this.”

Private lawyer Monte Stewart making Idaho’s arguments to the 9th Circuit

Monte Stewart, a private attorney representing Idaho Gov. Butch Otter, is going to give the state’s arguments, speaking both for Otter and for Attorney General Lawrence Wasden, Stewart told the 9th Circuit. He’ll take up the full 30 minutes allotted to the state’s side.

“Idaho has a good reason that satisfies any level of scrutiny for its decision to preserve man-woman marriage and therefore a necessity to not include same-sex couples in marriage,” Steward told the court. “The good reason is this: The man-woman meaning at the core of the marriage institution generates and sustains the child’s bonding right, which is a social expectation, a strong social message, a social promise and norm that to the greatest extent possible a child will know and be reared by her mother and father, the two people who brought her into this world and whose family and biological heritage are an important part of her very being.”

Judge Marsha Berzon interrupted Stewart. “Your burden here, though, is to demonstrate why allowing other relationships than the ones you regard as optimum interferes with the ones you regard as optimum,” she told him. “I accept that burden your honor, and here is the answer,” Stewart replied. But as soon as he began, and made reference to heterosexual men and women marrying, Berzon interrupted him again. “The heterosexual men and women aren’t going to enter into same-sex marriages, so what’s the issue?” she asked.

Stewart responded, in part, “Because the only way a same-sex couple can be married … is for the state to withdraw its support for the man-woman marriage institution … and implement something new and different, and that is genderless marriage.”

Same-sex marriage arguments being streamed live online

You can watch the oral arguments in Idaho's appeal to the 9th Circuit Court of Appeals of the overturning of its ban on same-sex marriage online live here. There's more on the case, including the arguments laid out in hundreds of pages of legal briefs filed with the court, in my Sunday story here.

All 3 members of today’s 9th Circuit panel have previously ruled in favor of gay rights

As the 9th Circuit Court of Appeals prepares to take up arguments on Idaho's invalidated ban on same-sex marriage - the state has appealed the U.S. District Court decision to the 9th Circuit - the L.A. Times is reporting that all three judges on the 9th Circuit panel today - Judges Stephen Reinhardt, Marsha Berzon and Ronald Gould - have previously ruled in favor of gay rights. Reinhardt wrote the court's decision striking down California's Proposition 8. Berzon joined Reinhardt in a January decision, Smith-Kline, that held that gays can't be excluded from juries because of their sexual orientation. And Gould wrote a ruling in 2008 that reinstated a lawsuit by a military nurse who was fired under the nation's previous “don't ask, don't tell” policy for members of the military. L.A. Times reporter Maura Dolan's report is online here.

Idaho marriage law heads to appeals court

When lawyers for the state of Idaho and for four Idaho lesbian couples face off in a federal appeals courtroom in San Francisco on Monday, the fate of Idaho’s invalidated ban on same-sex marriage will hang in the balance. Idaho is pushing hard in its fight to overturn the May U.S. District Court decision that found its ban on same-sex marriage violates the U.S. Constitution’s guarantees of equal protection and due process. “I am firmly committed to upholding the will of the people and defending our constitution,” Idaho Gov. Butch Otter said after the district court ruled against Idaho.

A three-judge panel of the 9th Circuit U.S. Court of Appeals will hear the arguments on Monday afternoon in San Francisco, and it also will hear arguments in gay marriage cases from Hawaii and Nevada. But Hawaii already allows same-sex marriage, and Nevada officials have declined to defend their law. So most of the focus will be on Idaho.

Otter and Attorney General Lawrence Wasden have pledged to defend the state’s ban all the way to the nation’s highest court. But long before Idaho’s case reaches its final outcome, the U.S. Supreme Court likely will weigh in on other states’ marriage law cases and settle the issue. “The Idaho case is not going to get to the Supreme Court for quite a while, even if the 9th Circuit rules pretty quickly,” said Carl Tobias, a professor at the University of Richmond School of Law who’s been tracking gay marriage cases around the country. “And the Utah and Oklahoma ones are there and ready.”

In advance of Monday’s arguments, lawyers on both sides have filed hundreds of pages of briefs with the courts that will play heavily in the 9th Circuit’s decision; you can read my full story here from Sunday’s Spokesman-Review. They include arguments about what’s best for children, why people get married, polygamy, incest, discrimination, human dignity and more.

Nineteen states, including Washington, and the District of Columbia allow same-sex couples to marry. Thirty-one states, including Idaho, have laws or constitutional provisions banning same-sex marriage; nearly all are being challenged. All but one of the 23 federal court decisions on the issue thus far have found bans on same-sex marriage unconstitutional; the one exception came from a federal judge in Louisiana last Wednesday. A day later, federal courts overturned bans in Wisconsin and Indiana.

Click below for an overview from AP reporter Paul Elias in San Francisco.

Idaho joins states calling for U.S. Supreme Court to take up Utah, Oklahoma gay marriage cases

Idaho has joined sixteen other states in two briefs to the U.S. Supreme Court, led by Colorado, urging the high court to take up the issue of same-sex marriage in cases from Utah and Oklahoma. The 17 states ask the Supreme Court to take those up to clear up a “morass” of lawsuits, but don't urge the court to rule one way or another in the briefs; you can see the briefs here and here. Meanwhile, 15 states that permit same-sex marriage, led by Massachusetts, also filed briefs with the high court urging it to take up the cases from Utah, Oklahoma and Virginia, and to overturn the bans. Massachusetts Attorney General Martha Coakley said, “Laws that bar same-sex couples from marrying are discriminatory and unconstitutional. The time has come for this critical issue to be resolved.”

Idaho's joining of the Colorado brief comes just days before Idaho's own same-sex marriage ban is up for oral arguments at the 9th Circuit Court of Appeals on Monday, after a U.S. District Court judge in Idaho overturned Idaho's ban as unconstitional in May. Kriss Bivens-Cloyd, spokeswoman for Idaho Attorney General Lawrence Wasden, said the office had no comment on why it'd joined in the multi-state brief regarding Utah and Oklahoma or how that plays into the state's continuing efforts to defend Idaho's ban. “We have an oral argument on Monday and we are not going to make any comment,” she said. Click below for a full report from the Associated Press in Boston on the multi-state filings to the U.S. Supreme Court.

 

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.

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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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