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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 Stewart has withdrawn from representing Idaho; Otter replaced him with Schaerr.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.
Idaho Gov. Butch Otter has launched a new TV ad striking back at Democratic challenger A.J. Balukoff, and defending Otter’s handling of a prison scandal. It’s the first time that Otter’s campaign has directly mentioned Balukoff in one of its ads, though two outside groups have been running ads attacking Balukoff and trying to tie him to President Barack Obama.
“This may be as good of evidence as we have that this may be a closer race than at least one or two polls have indicated recently,” said Jim Weatherby, Boise State University professor emeritus and a longtime observer of Idaho politics. He noted that Otter’s name recognition in the state, as a two-term governor, is close to 100 percent, while Balukoff came into the race virtually unknown outside the Boise area. That would normally prompt a well-known incumbent to avoid giving a little-known challenger any free publicity.
Balukoff, a Boise businessman, is the longtime chairman of the Boise school board; Otter served three terms in Congress and 14 years as lieutenant governor before becoming governor.
Otter’s ad is a direct response to a new commercial Balukoff launched last weekend criticizing Otter’s handling of the state’s troubled contract with private prison firm Corrections Corporation of America; both ads are running statewide, including in the Spokane broadcast TV market. CCA, which until July 1 was being paid $29 million a year to operate the state’s largest prison, was at the center of multiple lawsuits, reports of violence so intense that the prison was dubbed “Gladiator School,” and evidence that CCA had fraudulently overbilled the state for thousands of hours of guard duty that were never worked. In early February, the state dropped all claims against CCA in the staffing dispute in exchange for a $1 million payment.
Weatherby said, “I think the question a lot of viewers might have is: What was dishonest in the Balukoff ad? What are they specifically objecting to? And it’s not clear in this ad.” Balukoff’s ad called the settlement with CCA a “sweetheart deal.” Otter's ad doesn't mention the settlement. You can read my full AdWatch story here, along with links to both ads.
House Assistant Majority Leader Brent Crane, R-Nampa, has decided against challenging House Speaker Scott Bedke for the House’s top leadership post, Idaho Reports co-host Melissa Davlin reports today on her blog; you can read her full report here. Crane had said earlier this year he was considering a challenge to Bedke, but now says he wants to remain as assistant majority leader.
Legislative leadership positions will be decided during the Legislature’s organizational session, which is set for Dec. 4, after the November election.
Idaho Gov. Butch Otter, who said in two recent debates against challenger A.J. Balukoff that he “recused” himself from settlement talks with the Corrections Corporation of America over understaffing and falsified staffing records at an Idaho state prison because he’d received campaign contributions from the firm - $20,000 since 2003 – participated in meetings with CCA about the issue as recently as 2013, the Idaho Statesman reports today. Reporter Rocky Barker and Cynthia Sewell report that Otter’s former chief of staff, Jason Kreizenbeck, now a lobbyist for CCA, brought the company’s CEO, Damon Hininger, and other CCA executives to Otter’s office on May 28, 2013 to discuss the company’s state contract and the staffing issue.
Mark Warbis, Otter’s communications director, said CCA officials asked for the meeting to apologize for the understaffing and fraudulent billing that later led to a $1 million settlement with the state, and to ask about extending their contract to run Idaho’s largest state prison. “The governor responded that our intention instead was to consider putting the contract out to bid,” Warbis told the Statesman. The newspaper’s full report is online here.
Warbis told the Statesman that Otter recused himself from settlement talks when formal talks started in 2014. CCA had offered to settle the matter with the state for $170,000 prior to the May 2013 meeting, Warbis said. During the meeting, he said, “CCA might have mentioned that offer, but there was no additional discussion of it.”
Last night, Otter’s campaign launched a new TV ad responding to an ad from Balukoff critical of Otter’s handling of the CCA issue; I’ll have a full AdWatch story later today examining Otter’s new ad.
A.J. Balukoff, the Democratic candidate for governor of Idaho, stopped in at the paper's Coeur d'Alene office for a quick Q-and-A with D.F. Oliveria, who writes the S-R’s Huckleberries Online blog. Among the questions he fielded: “What’s with the bow tie?”
“I like bow ties,” Balukoff said. “They’re more festive. I know how to tie them. And I don’t have to worry about the tie getting in my soup.” You can see Oliveria’s full “five questions” interview here; it appears he actually asked eight questions, some more serious than others.
The Lewiston Tribune reports today that part of the footage in one of Gov. Butch Otter’s campaign ads came from an unlikely source – out-takes from the “Add the Words” documentary. Tribune reporter Joel Mills writes that the footage is an interior view of the state capitol dome that appears in Otter’s “Business Testimonial” ad. “I rewound it and said, ‘Oh my God, that’s my shot,’” filmmaker Michael Gough told the Tribune.
The feature-length documentary film told the story of protesters at the 2014 Idaho Legislature who called for a hearing on legislation to amend the Idaho Human Rights Act by adding the words “sexual orientation” and “gender identity,” to prohibit discrimination on those bases. No hearing was granted, and hundreds of protesters were arrested.
Gough told the Tribune he put some of the unused, generic shots from the project on a stock footage website, where anyone can purchase them. About a month ago, he got word that someone had bought a five-second clip of the dome for $75; Gough didn’t know who until he spotted the footage in the Otter ad. “I was excited because somebody actually paid $75 for it,” he said.
Otter said recently in a political debate that he expects a hearing to be granted on the anti-discrimination bill next year, and blamed the “antics” of protesters for lawmakers’ refusal to grant a hearing this year. Otter also has been an outspoken opponent of allowing same-sex couples to marry in Idaho, though federal courts have thrown out Idaho’s ban on gay marriage as unconstitutional; this week, Otter asked the 9th Circuit Court of Appeals to rehear Idaho’s case. The Tribune’s report is online here, though a subscription is needed to see the full story. You can see Otter's campaign ad online here; the dome footage is at the 12-second mark.
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.”
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.
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.
The Idaho Democratic Party is criticizing Gov. Butch Otter and other Republican leaders for sending out letters asking lobbyists for campaign donations to seven legislative races, the AP reports, including one in which the GOP candidate’s criminal record for domestic violence was revealed early in the campaign. “If we hope to sustain our majority in the House, or even increase it, we must take action now to help these seven candidates with their legislative races,” Otter wrote in the letter. The seven include first-time Republican candidate Greg Chaney of Caldwell, who was charged with domestic battery in 2009 after being accused of shoving his then-wife. Police also reported he threatened to kill himself in front of his family. Chaney later pleaded guilty to disturbing the peace and malicious injury to property.
Chaney told the AP he hasn't consumed alcohol since 2009 and now has custody of his two children. Otter’s letter, which also was signed by Lt. Gov. Brad Little and House Speaker Scott Bedke of Oakley, called the seven candidates, including Chaney, “reliable and hard-working Republicans.” Click below for a full report from AP reporter Kimberlee Kruesi.
The gloves have come off in Idaho’s governor’s race, with Democratic challenger A.J. Balukoff launching a hard-hitting new ad faulting GOP Gov. Butch Otter’s handling of a scandal involving the state’s largest prison. You can read my full AdWatch story here at spokesman.com; and watch the commercial here; it’s running statewide, including in the Spokane broadcast TV market.
Idaho took over operation of the Idaho Correctional Center this year from private operator Corrections Corporation of America, after multiple lawsuits, reports of violence so intense that the prison was dubbed “Gladiator School,” and evidence that CCA had fraudulently overbilled the state for thousands of hours of guard duty that never were worked.
Otter, an advocate of privatization, made the announcement reluctantly on Jan. 3; on Feb. 4, he announced a settlement in which the state dropped all claims against CCA in the staffing dispute in exchange for a $1 million payment. At the time, the state had been saying for a year that the Idaho State Police was conducting a criminal investigation, but it turned out no investigation ever had been launched. Otter said then that the ISP had determined none was needed; two weeks later, after meeting with Attorney General Lawrence Wasden, Otter reversed his stance and called for a criminal investigation by ISP. In March, the FBI stepped in.
“It fails the smell test badly,” Balukoff said, “and we have to wonder what more will come out when the FBI wraps up its ongoing investigation of this debacle.”
The ad includes actual footage of inmate violence at the prison, notes that CCA is a major campaign contributor to Otter – the firm has donated $20,000 to his campaigns since 2003 – and calls the settlement a “sweetheart deal.” Jim Weatherby, Boise State University professor emeritus and a longtime observer of Idaho politics, said the ad – the first time Balukoff’s gone negative – could be a “turning point” in the governor’s race.
Sherri Ybarra, the Republican candidate for Idaho superintendent of public instruction, is clarifying her marital history after she told an Idaho Statesman reporter she and her husband came to Mountain Home in 1996; it’s the same story she told me in an interview in August. But Statesman reporter Bill Roberts writes today that Ybarra now acknowledges that she and her husband, Matthew Ybarra, were married in 1999 after she and her previous husband were divorced following their move to Mountain Home in 1996.
Roberts said he contacted Roberts after receiving a call from a reader about the history laid out in his published story. Ybarra told Roberts she wasn’t trying to cover up her divorce; she said she does not consider her first husband family and didn’t make the distinction about her divorce when recounting her history. “My brain doesn’t operate in the past,” she said. Roberts’ full post is online here.
Roberts reports that Ybarra was vague about her first marriage, saying she doesn’t recall exactly how long she was married and doesn’t know precisely when she was divorced. “It’s been so long,” she said. In my August interview with her, Ybarra told me she and her husband had been together, “Oh, gosh, 16 years,” and said the couple arrived in Mountain Home in 1996 when her husband was in the military. “He did his time and that was the end of it,” she said, saying he’s now employed as a federal police officer for the Veterans Administration in Boise. She initially told Roberts she and her husband had been married “nearly 20 years;” she now says they will have been married 16 years in March. Her bio on her campaign website includes a photo of her with her husband “of 15 years” and their son. It says she “moved to Idaho in 1996 with the military,” but Ybarra told me in August that she never served in the military; only her husband did.
Roberts reports that Ybarra’s vagueness follows several other miscues during her campaign. She has failed to vote in most of the primary and general elections since coming to Idaho and she was accused of plagiarism by her Democratic opponent, Jana Jones, after portions of Jones’ website were copied onto Ybarra’s website; Ybarra later apologized.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Public records show an Idaho State Police investigation into staffing problems at a private prison was handed over to the FBI after police detectives determined their agency could have a conflict of interest in the case. The apparent conflict of interest wasn't revealed earlier this year, when the state first announced the FBI would be investigating whether fraud or other crimes occurred when Corrections Corporation of America understaffed Idaho's largest prison in violation of its $29-million-a-year contract. The records were among hundreds of documents obtained through public records requests by a campaign staffer for A.J. Balukoff, a Democrat who is challenging Republican incumbent Gov. C.L. “Butch” Otter for the governor's seat. Balukoff's campaign spokesman, Mike Lanza, said Balukoff thought it was important for the public to find out more about how the state handled the investigation into understaffing at a prison run by Corrections Corporation of America.
Click below for a full report from AP reporter Rebecca Boone.
Here’s a link to my Sunday story on the governor’s race, which wraps up the series I’ve been doing over the past few months on Idaho’s top races in the November election. From the story: Idaho Gov. Butch Otter’s cowboy charm has long appealed to Idaho voters, helping make him one of the state’s most-elected officials: a longtime lieutenant governor, three-term congressman and two-term governor. But has he earned the rare distinction of becoming only the second governor in Idaho history to be elected to a third consecutive term? An array of challengers, led by A.J. Balukoff, the Democratic nominee and longtime Boise School Board chairman, say no, arguing the state’s schools, economy and reputation have suffered on Otter’s watch. Otter says he wants a chance to finish leading the state out of the recession. “Now the economy’s getting much better, and it’s an opportunity for us to rebuild,” he said.
Here are links to the earlier stories in the series: My Oct. 12 article on the Senate race here, in which Sen. Jim Risch is being challenged by Nels Mitchell; my Oct. 5 story on the 1st CD race here, in which second-term GOP Rep. Raul Labrador is being challenged by longtime state Rep. Shirley Ringo, D-Moscow; my story on the Idaho Secretary of State race here, between Reps. Lawerence Denney and Holli Woodings; my story on the race for state superintendent of schools here, in which Republican Sherri Ybarra and Democrat Jana Jones are facing off; my story here on the wild card role the Libertarian candidate, John Bujak, could play in the governor’s race; and my story on the state treasurer’s race here, in which incumbent Ron Crane faces a challenge from Twin Falls CPA Deborah Silver.
You can also see our Idaho Voter Guide here, with a guide to candidates and races in federal, state, local and legislative races on the ballot in Kootenai County; and visit our Election Central here, for links to all our news coverage related to the election in Idaho and Washington.
After Gov. Butch Otter said in two recent debates against Democratic challenger A.J. Balukoff that the $1 million settlement the state signed with Corrections Corp. of America over fraudulent billing and understaffing at the state’s largest prison can be “set aside and then we can go after CCA” if the FBI’s investigation turns up anything, I filed a public records request for the provision in the settlement agreement that says that. Here’s what I received: The 9-page Settlement Agreement and Release, which talks about how all claims, past or future, discovered or undiscovered, are settled by the $1 million payment; and a series of emails here.
In the emails, Otter aide Mark Warbis inquires of state Corrections Department officials about this very question. “David (Hensley, Otter’s chief of staff) has a question about the ‘Release and Discharge’ section at the bottom of Page 1,” Warbis writes. “Does this release and discharge apply only to civil claims, or could this potentially block the pursuit of criminal claims should they emerge?”
Mark Kubinski, lead deputy attorney general for the Idaho Department of Correction, responds, “The release section only applies to civil claims. The signatories are Division of Purchasing, IDOC and the Board, none of whom have any authority to waive any potential criminal charges. I’m comfortable with the language as drafted.”
If I'm interpreting this correctly - and please, all you lawyers out there, chime in if I'm not - that suggests that the state could in fact “go after” CCA criminally if the FBI investigation uncovers evidence of criminal wrongdoing, but the settlement agreement would not be “set aside” and the state could not seek any additional civil penalties or damages.
An ad paid for by the Idaho County Republicans now running in the Idaho County Free Press takes partisan rhetoric to a new level: It says, “Voting democrat will assure redistribution of your money, veterans and all military abandoned, unknown illnesses crossing our unsecured borders. Vote & Keep Our Religious Freedom.” The pitch is accompanied by a red, white and blue GOP elephant, and lists the names of local legislative and county GOP candidates Mark Frei, Skip Brandt, Paul Shepherd, Shannon McMillan, Kathy Ackerman, Sheryl Nuxoll and James Zehner.
College of Idaho political scientist Jasper LiCalzi said that type of rhetoric is unlikely to change people’s minds about their votes. “It’s pretty in-your-face, though,” he said.
Idaho state Treasurer Ron Crane’s Democratic challenger, Twin Falls CPA Deborah Silver, went on the attack in a televised debate between the two on Thursday night, charging that Crane should be fired as state treasurer for a fund transfer that auditors say cost state taxpayers at least $10 million. “In the business world, we know how this would end – the treasurer would be fired,” Silver declared. “The only way to fire this treasurer is with your vote. I am running to give Idaho taxpayers a choice for honest stewardship of their tax dollars.”
Crane protested that his office “vociferously disagreed with the findings of the legislative auditors,” and defended his actions in the transfer, which occurred after he said mortgage-backed securities the state had purchased in 2005, 2006 and 2007 were showing $70 million in losses as the housing market collapsed.
“I held those securities and rode out the storm, letting them come back in value toward par,” Crane said. “Last year, 2013, I had enough interest earnings and portfolio gains to wash out five of the seven securities and still show a profit of $122,000 for the general fund and $2 million for all the rest of the portfolios that I manage. I still have two of those securities in my portfolio. A year ago at this time, they were about $17.5 million underwater. Today, as of Friday, they are $9.6 million underwater. So they’re coming back, they’re moving in the right direction.”
Crane charged that legislative auditors wanted him to sell the securities at the time and realize the full $70 million in losses. But a critical state audit report didn’t suggest that; instead, it faulted him for transferring the securities from a local government investment pool to the investment fund for state money, shifting the losses to state taxpayers rather than local governments. You can read my full story here at spokesman.com.
Tonight on Idaho Public Television, state Treasurer Ron Crane and Democratic challenger Deborah Silver will debate at 8:30 as part of the “Idaho Debates,” co-sponsored by the Idaho Press Club and the League of Women Voters of Idaho. After tonight’s debate, the series continues with the candidates for state superintendent of schools on Oct. 21 at 7 p.m., lieutenant governor Oct. 30 at 8:30 p.m., and candidates for governor facing off Oct. 30 at 7 p.m.
Idaho Gov. Butch Otter, through his campaign, has released a lengthy statement on the legal dispute over the contract award for the Idaho Education Network, the statewide broadband network designed to link every high school; the state is embroiled in a lawsuit from Syringa Networks over the award of the $60 million contract to Qwest and Education Networks of America. The legal questions over the contract award prompted the federal government to stop paying its three-quarters share of the project in 2013, and lawmakers had to bail out the IEN with $11.4 million in extra state funds this year to offset the missing federal “e-rate” money; millions more may be requested when the Legislature convenes again in January.
In response to questions raised by Democratic challenger A.J. Balukoff about news reports that the state was seeking a confidentiality agreement in its negotiations with Syringa, Otter's statement says, “Confidentiality agreements are common in mediations to ensure both parties negotiate in good faith. Syringa refused to sign a confidentiality agreement; nevertheless, the state proceeded with mediation. There are no 'secret' negotiations taking place.” Click below for Otter's full statement, which includes several references to court documents in the case. It also asserts that Syringa “has no legitimate claim for monetary damages” from the state. You can read the full Idaho Supreme Court decision here in the case, which remanded it back to the district court on a single question: whether the contract was awarded illegally.