BOISE – Idaho lawmakers rushed through a bill to pay $100,000 to the Idaho Republican Party – to which 81 percent of them belong – in the final days of this year’s legislative session, to cover the party’s attorney fees in its successful primary election lawsuit against the state.
Though it’s not uncommon for prevailing parties to get their legal fees paid in a federal civil rights case, what’s unusual is how the Idaho GOP set up its fee arrangement with its attorney – a rare “contingent fee” deal in which only the taxpayers would have to pay, not the party, regardless of the outcome.
“It was not something they had to do,” said John Strait, a law professor at Seattle University School of Law and an expert on federal court litigation. “The Republicans decided they would rather have him paid out of taxpayer money, and they set it up that way.”
Idaho Republican Party Chairman Norm Semanko declined repeated requests for comment on why the party chose that route. The party’s executive director, Jonathan Parker, said, “It’s my understanding that it’s standard operating procedure for court cases like this.” He said Semanko had nothing to say beyond that.
The oddity drew plenty of opposition as the bill careened through the House and Senate, with not only every legislative Democrat but but also nine GOP House members and three Republican senators opposing the payment.
“I have to point out, we’re paying $100,000 for the Republican Party to sue the Republican Legislature, defended by the Republican secretary of state, in order to close primaries in Idaho – I just think this is so bad it’s comical,” said Sen. Elliot Werk, D-Boise.
Sen. Shawn Keough, R-Sandpoint, who voted against the bill, said, “They weren’t forced to submit that bill … and I found it insulting that they did that. I don’t believe it’s appropriate that the taxpayers pay that money.”
Keough noted that when the party held its convention in Sandpoint in 2008, a majority of the attendees voted against closing the GOP primary. But then the party’s central committee moved forward anyway, and sued the state; party rules now require the GOP primary in Idaho to be closed to anyone other than registered party members.
Because Idaho’s never had party registration, that’s forcing a re-do of the state’s entire primary election system; GOP-backed legislation now awaiting the governor’s signature would force all Idahoans to publicly declare their party preference for the first time.
Keough said, “I remain disturbed that even while in essence shutting out the public, they asked the public to pay for it.”
The Idaho GOP’s lawyer, Christ Troupis of Eagle, who didn’t return a call for comment Thursday, filed an affidavit with the federal court stating that he’s represented the party on a “contingent fee” basis in the case since 2008. “My fee agreement with the Idaho Republican Party and Chairman Norm Semanko was for a contingent fee, comprised of whatever sum was awarded by this Court in the event that the Plaintiffs were successful in prosecuting their claims in this action,” he wrote.
In the affidavit, he said his total fees and costs came to $143,880. The state negotiated and got that lowered to $100,000 in a settlement, and the two sides filed a stipulation with the court agreeing to the figure. On Tuesday, after the $100,000 payment bill already had passed the Senate, U.S. District Judge Lynn Winmill issued an order granting the stipulation.
Jeffry Finer, a Spokane attorney with 26 years of federal civil rights litigation experience, said, “Judges typically award fees in civil rights cases.”
“The losing side could really be rational and say … negotiate these fees and get ’em paid, we don’t want to go to court – the judge could hit us even worse,” he said. “And while we fight, the meter’s running.”
Finer called the settlement over the amount “impressive,” saying, “Getting almost a third of it knocked off ain’t bad,” and said the fees aren’t extraordinarily high for the type of litigation involved.
Contingent fee arrangements, however, are rare in civil rights cases like this one, which challenged a state law, rather than seeking money damages. They’re more typical in cases in which someone is suing for cash damages – the lawyer takes a gamble that he’ll win the case, and get paid only a percentage of those winnings, typically anywhere from 25 to 45 percent.
Strait called the arrangement “unusual in that type of case.”
He said, “In terms of whether they’re entitled to it, the statute says that they are.” But, he said, they “didn’t have to ask for it.”
House Minority Leader John Rusche, D-Lewiston, said, “As a citizen I just am really upset by this – paying the Republican Party to sue the state of Idaho to make it more difficult for citizens to vote in the primary. Just listen to what we’re doing. … The plaintiffs did not have to request money from the state coffers, the Republican Party chose to. … I think that’s just unconscionable.”
The bill, SB 1202, is now awaiting action by GOP Idaho Gov. Butch Otter.
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter