If the economy of Idaho is hamstrung by frivolous lawsuits, then lawmakers would be wise to draft legislation to fix the problem across the board. But that isn’t what’s at stake with House Bill 193, which would require parties opposed to megaloads being transported on Idaho highways to first fork over a heavy wad of cash to gain access to courthouses.
Under the bill sponsored by Rep. Dick Harwood, R-St. Maries, and passed by the House, anyone suing to challenge a megaload permit must first post a bond worth at least 5 percent of the assessed value of the freight. That money would go to the state highway fund. If opponents clear that hurdle but lose the case, they must pay the defendants the amount they lost during litigation.
So the bigger the load, the more it costs to challenge it.
“I think it will stop frivolous lawsuits,” Harwood said.
But it could also stop legitimate ones, because it’s not the substance of the challenge that matters up front; it’s whether you can raise the tens of thousands of dollars to pass the courthouse turnstile and still have enough left to cover the potential price of losing.
An examination of the case that prompted this bill shows that it’s more about limiting public participation than stopping illegitimate lawsuits. One year before the state held public meetings on the megaload project, the governor, the attorney general and the secretary of state (as part of the Board of Examiners) voted to approve a plan in which ExxonMobil would pay the Idaho State Policea to escort two megaloads on U.S. Highway 12. Three months before the public meetings, the board would do the same for two ConocoPhillips loads.
When the permits were awarded for those four loads, a judge revoked them, noting that the Idaho Transportation Department violated its procedures for examining the impacts the loads would have on the road, nearby residents and businesses and potential emergencies.
Ultimately, the Idaho Supreme Court paved the way for the permits, but the concerns were in no way frivolous. Under HB 193, such a challenge might never make it to a judge because of the payment requirement.
In defending the bill, Rep. Marv Hagedorn, R-Meridian, said: “We have a number of frivolous lawsuits now that cost our state money, that don’t accomplish very much but delay our economic growth and viability.”
Fine. Then craft a bill that demonstrates the problem and solves it for everyone, not just a couple of companies. It can be expensive to fend off lawsuit harassment. It does add to business costs. But it’s wrong to presume a legal challenge is without merit because the plaintiff couldn’t post an exorbitant bond.
This bill merely provides cover for the state the next time it decides that public participation is frivolous.