BOISE - Embattled Idaho state Rep. Phil Hart has filed a motion to disqualify the judge in his state income tax appeal case in 1st District Court in Kootenai County, a move that could delay his case.
Hart’s motion, filed late last week by his Coeur d’Alene attorney Starr Kelso, cites an Idaho court rule that permits a judge to be disqualified without cause; Kelso declined to comment on the motion. Hart’s case is currently assigned to 1st District Judge Lansing L. Haynes; it’s scheduled for a court hearing on Dec. 7 on the state’s motion to dismiss the appeal.
Haynes has been a district judge since 2006, and was re-elected this year; prior to becoming a judge, he worked for the Kootenai County prosecuting attorney’s office for 18 years, where he was chief criminal deputy, specializing in major felony prosecutions and particularly crimes against children. Before he became a judge, Haynes served on the Kootenai County Republican Central Committee.
Hart, who just was re-elected to a fourth term in the state House of Representatives, is going to court to fight an order from the state Tax Commission to pay $53,523 in back state income taxes, penalties and interest. He first appealed to the state Board of Tax Appeals, but it rejected his appeal, saying it was filed too late - after the expiration of a 91-day appeal period that ended in January.
Hart, R-Athol, argued there, and is arguing again in his court appeal, that the state Constitution’s legislative privilege provision means he should have months longer to file his appeal, because the appeal period ended within 10 days of the start of the 2010 legislative session. The constitution protects state legislators from arrest or “any civil process” during legislative sessions or 10 days before they start.
The state, in its motion to dismiss Hart’s court appeal, wrote, “Not being liable to any civil process does not mean that taxpayer is relieved from the operation of statutes of limitations. … The taxpayer, Phil Hart, is seeking to use his status as a legislator to relieve himself of having to comply with the statute of limitations set forth in Idaho Code.”
It added, “In this case, the taxpayer is seeking to invoke the jurisdiction of this court and is not defending himself from civil process. It is the taxpayer who is filing this action.”
A special House Ethics Committee voted unanimously in late September to recommend that Hart be removed from the House tax committee while he presses his personal fights against state and federal income taxes. Hart refused to step down from the committee voluntarily, maintaining that he has no conflict of interest.
Hart is a tax protester who stopped filing both federal and state income tax returns in 1996 while he pressed an unsuccessful lawsuit charging that the federal income tax is unconstitutional. He later conceded and began paying again, but authorities say he’s never paid in full.
In his current appeal in court, Hart also argues that Idaho’s state income tax is unconstitutional.