Latest from The Spokesman-Review
Which matters more: what the state constitution says or what the Idaho Senate does? That’s the big question in legal arguments submitted to the Idaho Supreme Court in advance of an Aug. 11 hearing in the “instant racing” case, with implications for gambling in Idaho as well as the balance of power among the state’s executive, legislative and judicial branches.
An array of parties filing arguments in the case, led by Coeur d’Alene Racing, operator of the Greyhound Park and Event Center in Post Falls, say it’s up to the Senate to decide if a bill has been properly vetoed or not – and it would violate separation of powers for a court to tell the Senate it’s wrong. “The Idaho State Senate, collectively and on the record, was best situated to judge the validity, timeliness and relevance of Gov. Otter’s veto,” wrote David Leroy, attorney for Greyhound Park and a former Idaho attorney general. “It did so.”
The Coeur d’Alene Tribe, which filed the lawsuit, strongly disagrees. “The Tribe asks the Court for nothing more than for it to say what the law is, which is squarely the province of the judiciary,” wrote the tribe’s attorney, Deborah Ferguson.
When Gov. Butch Otter vetoed the bill to repeal authorization for slot machine-like “instant racing” machines in the state just two years after they’d first been authorized, he didn’t deliver his veto to the Senate until two days after the constitutionally required five-day deadline, waiting until April 6, the day after Easter Sunday.
Senators acknowledged in their official journal that the veto was delivered after the deadline, submitting three formal letters saying so, and noting both the constitutional provision and a state law that say in that case, the bill becomes law without the governor’s signature. But they took a veto override vote anyway, and it failed, achieving a 19-16 majority but not the required two-thirds. Seven senators who’d originally voted for the bill switched sides and backed the governor’s veto.
The Senate then treated the bill as if it had failed because the veto was not overridden.
The Coeur d’Alene Tribe, lead proponent of bill, sued, saying the override vote was meaningless – because according to the Idaho Constitution, the bill already had become law without the governor’s signature two days earlier, when the time limit for a veto expired. They argue that only bills, not laws, can be vetoed. You can read my full story here from Sunday’s Spokesman-Review.
Gov. Butch Otter knew for months that the federal government had withheld funding for Idaho's now-failed school broadband program, but lawmakers remained in the dark until much later, the AP reports. According to a letter obtained by The Associated Press, Otter wrote to one of the program's contractors on Nov. 4, 2013, that federal funding —known as "e-rate" dollars which come from monthly fees on landline and cellphone bills— had stopped because of a recent whistleblower complaint regarding the state's $60 million statewide broadband contract. However, state lawmakers weren't informed until near or after the start of the 2014 legislative session in January.
You can read AP reporter Kimberlee Kruesi’s full report here.
Gov. Butch Otter toured the Cape Horn Fire near Bayview today, surveying the damage done by the 1,155-acre blaze near the lakeside town of Bayview, and urged homeowners to keep brush and trees near homes trimmed. “Trim the threat,” he said, after flying over still-smouldering hillsides, where helicopters were dropping water, and touring the burned remains of a home on the shore of Lake Pend Oreille. Otter urged Idahoans to create “defensible space” around their homes to protect them from wildfires.
Incident Commander Bob Fry told Otter that the fire, now 40 percent contained and no longer threatening homes, will cause long-term hazards in the area, including erosion and falling trees. “They’re going to live with those hazards all summer,” Fry said. You can read our full report here from S-R reporter Eli Francovich. Otter had been scheduled to attend the upscale Allen & Co. business and media gathering at Sun Valley all week this week, but detoured today to tour the fire scene instead.
Gov. Butch Otter is taking some issue with the sentence in my Sunday parks story that says that in 2010, he “proposed shutting down the parks department and eliminating funding.” Otter said in an interview that his move was designed to send a message – he wanted business plans from all state agencies, and parks was one of four that didn’t immediately produce one. However, Otter’s formal executive budget proposal submitted to the Legislature in 2010 for fiscal year 2011 called specifically for cutting general funds for the state Department of Parks & Recreation to zero, and “devolving” the department, handing over its functions to the departments of Lands and Fish & Game.
Here’s how the proposal read in that year’s legislative budget book: “Devolve IDPR. The Governor recommends transferring the Department of Parks and Recreation’s property and operation management functions to the Department of Lands and transferring the license and registration function to the Idaho Department of Fish and Game.”
Here’s a link to Otter’s executive budget document from that year; it reflects the “agency consolidation” and the reduction of the budget for the Department of Parks & Recreation to zero. That didn’t happen, for a variety of reasons, some of which were explored in my story. That year, Otter also proposed selling the state Department of Parks & Recreation headquarters and surrounding property, anticipating making $5 million; here’s a link to that proposal in his executive budget, listed directly under the “ending balance” line in the middle of the first page. That, too, didn’t happen.
Otter told me, “I guess the value that came out of this is people had to make assessments on the value they were getting. The people said, ‘This is nice, but it’s a necessary part of the local economy.’” He added, “Parks is emblematic – a good example of what we learn about ourselves, how much value do we put on what function of government. We learned that lesson out of necessity.”
That same year, Otter recommended a four-year phase-out of state funding for the Idaho Human Rights Commission, proposing nearly a 25 percent cut in the commission’s funding in FY 2011. The commission ended up moving to the state Department of Labor, where its budget was transferred, taking a 7 percent cut in the process. He also proposed four-year phase-outs of state funding for five other agencies: Idaho Public TV, the State Independent Living Council, the Developmental Disabilities Council, the Deaf and Hard of Hearing Commission, and the Hispanic Commission. None were approved, though all the agencies took smaller cuts; the Deaf and Hard of Hearing Commission was transferred from the Department of Health & Welfare to the Division of Vocational Rehabilitation.
Otter said, “It was to encourage them to say, ‘You know, the governor is serious about this. He wants to know what we’re going to do to continue to exist with less state funds.”
Idaho’s state parks are thriving, just five years after Gov. Butch Otter proposed shutting down the parks department and eliminating funding. State funding for parks in Idaho is still less than half what it was in 2006, and that’s reflected in smaller staffs, a backlog of maintenance projects and reduced services during off-peak months. But all the parks have remained open, and they’re welcoming record numbers of visitors this summer for everything from camping to weddings to paddle-board rentals to disc golf.
“Everybody predicted we’d have to close down parks,” Otter told the Spokesman-Review in a recent interview. But he said all he really wanted back in 2010 was to “do more with less – and by golly, the Idaho folks did it.”
Budget cuts have forced states around the nation, including Washington, to consider closing state parks over the past decade, though few actually ended up taking that step. Three states are looking at that now, however, including Wisconsin and Louisiana. A proposal in Alabama would close any park that doesn’t cover 100 percent of its operating costs, according to Lewis Ledford, executive director of the National Association of State Park Directors.
Ledford said he believes that’s a shortsighted measure, as it overlooks the value parks generate for the economies of their surrounding communities. “If citizens have a chance to vote to support funds for their parks, it’s overwhelmingly being popularly endorsed,” he said. And people also are “voting with their attendance.” State park visits are soaring nationwide, with the latest estimate of annual state park visitors topping 730 million. You can read my full story here from Sunday’s Spokesman-Review, including photos and a map of North Idaho park attractions. Last week, Idaho’s state parks system celebrated its 50th anniversary; then-Gov. Bob Smylie established the parks system in 1965.
There’s plenty of news to catch up on from the past week that I’ve been gone, starting with the U.S. Supreme Court’s decision legalizing same-sex marriage in all 50 states the Friday before last. Gay marriage already became legal in Idaho last October, but Gov. Butch Otter had been continuing to attempt to appeal the decision, both filing an appeal to the U.S. Supreme Court and filing a brief supporting the states involved in the 6th Circuit case the Supreme Court agreed to rule on; he lost on both counts, with the Supreme Court’s ruling settling the question nationwide. A June 30 letter from the U.S. Supreme Court's clerk formally announced Idaho's appeal had been denied.
Otter called the decision “truly disappointing for states, including Idaho, where the people chose to define marriage for themselves as between one man and one woman.” Meanwhile, hundreds of gay rights supporters celebrated on the Idaho Capitol steps, and Rep. John McCrostie, D-Boise, currently Idaho’s only openly gay state lawmaker, said, “This is a great and historic time for the LGBT community both in Idaho and in America, but our joy is tempered knowing that, while we can be married on Saturday we can still be fired and evicted on Monday, until Idaho adds the words to our Human Rights Act. We celebrate this victory, and we continue to fight for equality with housing, employment and public accommodations.” Today, AP reporter Kimberlee Kruesi reports that Idaho’s unenforceable ban on same-sex marriage remains in the Idaho Constitution, and prospects are uncertain on whether lawmakers will remove the now-moot wording, which would require both two-thirds support of the Legislature and a majority vote in a general election; you can read her full report here.
Several notable appointments happened in the past week, including Otter naming a new Idaho Court of Appeals judge and naming a replacement for longtime Sen. Dean Cameron, R-Rupert, now head of the state Department of Insurance. Third District Judge Molly Huskey was Otter’s pick for the Court of Appeals seat, where she’ll replace Judge Karen Lansing, who is retiring after 22 years. Huskey is the former state appellate public defender and holds a law degree from the University of Idaho. The appointment keeps a single female among the judges of Idaho’s Court of Appeals and Supreme Court; Lansing had been the only one. For Cameron’s Senate seat, Otter gave the nod to Rupert city administrator Kelly Anthon, a 7th generation Idahoan who lives on a family farm near Declo.
On July 3, U.S. District Judge Edward Lodge, Idaho’s longest serving judge, took senior status; there’s been no word as yet on a possible replacement, as Sens. Mike Crapo and Jim Risch have been conducting an extended, secret screening process to suggest possible replacements to President Barack Obama.
Idaho’s gas tax went up 7 cents per gallon on July 1 with the start of the new fiscal year, as part of the transportation funding deal state lawmakers approved this year. Interestingly, when we drove back into Idaho from Oregon at the end of our vacation on the Fourth of July, gas at the first stop was still priced identically to its level over a week earlier.
Idaho Public Utilities Commissioner Mack Redford died last week; he’d served on the PUC since 2007. An attorney, Redford was the former general counsel for Morrison Knudsen International, served as legal counsel for the Channel Tunnel project connecting England and France, and was general counsel for Micron Construction.
Statewide student test scores aligned to the new Idaho Core Standards were released last week, and Idaho students did better than expected, Idaho Education News reported. EdNews reporter Kevin Richert has a full report here.
The annual Crime in Idaho statistical report came out and showed that Idaho’s crime rate dropped 2 percent from 2013 to 2014, while violent crimes dropped 1.6 percent. Idaho is ranked 43rd in the nation for its violent crime rate. Crimes against property were down 4.6 percent.
Idaho’s Hispanic population grew at its fastest rate in four years, according to a report from the Idaho Department of Labor, and made up 12 percent of the state’s population in mid-2014, up from 11.2 percent in 2010. The state’s Hispanic population grew 2.9 percent from mid-2013 to mid-2014, while the non-Hispanic white population grew 1.2 percent.
Boise brand marketing firm Oliver Russell amended its articles of incorporation to become the state’s first “benefit corporation,” a new class of corporation lawmakers created during this year’s legislative session. Benefit corporations, while still for-profit corporations, are required to consider not only their shareholders, but also benefits to the public, including workers, community and the environment.
Idaho Secretary of State Lawerence Denney sent out a press release warning of a scam targeting Idaho businesses, who are being told they need to purchase a “certificate of goodstanding” to be in compliance with state law. State law has no such requirement, Denney said; an organization calling itself “Division of Corporate Services, Business Compliance Division” has been perpetrating the scam.
And Idaho Sen. Jim Risch has quietly introduced legislation to define work slowdowns as an unfair labor practice, in response to the backlog of ships and containers along the West Coast during months-long contract negotiations between the International Longshore and Warehouse Union and port operators. The Oregonian reports that Risch’s bill has no co-sponsors and no Oregon lawmakers are publicly supporting it; you can read their full report here.
Gov. Butch Otter, in his annual address to the Boise Metro Chamber of Commerce today that’s billed as the “Governor’s Address to the Business Community,” had this message: “Our continued focus has got to be on education, because that’s our future, because that’s our economy.”
Otter said the reason that this year’s Legislature approved a 7.4 percent funding increase for public schools and a five-year career ladder teacher pay plan was because “we knew that there was a direct correlation between an educated workforce and the health of the economy.” He told the crowd of several hundred, “We know as business people that the next generation of your products, of your services, of your ability to manage your business, is sitting around in a classroom someplace today.”
Otter also praised the state’s new STEM Action Center, which will open July 1 as a division of his office, to coordinate STEM education and workforce needs. “That was the brainchild of Reed DeMordaunt, the House education chairman, and Sen. Bob Nonini from Coeur d’Alene,” Otter said. “They put that idea together with the help of many of you here including the Idaho technology center.” Science, technology, engineering and math are “what you are demanding,” Otter told the audience of business people. “That’s what the future workforce has got to be proficient in.” He said the new center will be “up and running by the first of July.”
He touted favorable economic news about Idaho from national magazines, and noted that state tax revenues have come in well above projects this year, meaning this year’s surplus-eliminator bill will put more money than expected into transportation projects and state savings accounts.
“We’re growing, and why shouldn’t we be?” Otter asked. “Those are pretty impressive figures, and they didn’t happen by accident.” He said Idaho’s created an attractive environment for business in part by lowering taxes over the last few years.
The Idaho Supreme Court has scheduled oral arguments in Coeur d’Alene Tribe vs. Lawerence Denney, the instant racing lawsuit, for Aug. 11 at 10 a.m. That’s not as quickly as the tribe had requested the case be heard – it wanted the court to rule by July 1, when it contends SB 1011 takes effect, making the gambling terminals illegal in Idaho. The timing could mean the machines will continue to operate through much of the summer.
The bill passed both houses of the Legislature overwhelmingly. Gov. Butch Otter issued a veto, but didn’t do so until after the five-day deadline for a veto had passed. The tribe sued Secretary of State Lawerence Denney, after it demanded he certify the bill as law to allow it to take effect, and he refused. If a bill isn’t vetoed within the time limit, the Idaho Constitution says it becomes law without the governor’s signature. Denney, in his initial response to the lawsuit, contends it’s not his job to resolve disputes between the governor and the Senate over the validity of a veto – it’s up to the Senate. He also suggested that the court would be limited by separation of powers in directing the Senate on what to do.
The Senate received the vetoed bill two days after the deadline, certified that fact officially with three letters placed in its official journal, and then took a veto override vote anyway. The override received a majority but not the two-thirds supermajority that’s required to override a governor’s veto.
Instant racing machines appeared in Idaho in the past year after lawmakers two years ago authorized wagering on “historical” horse racing, or re-broadcasts of randomly selected past races. Lawmakers were surprised when the machines showed up, however, as they resemble slot machines, with only the final few seconds of the past horse race showing in a tiny screen as reels spin, lights flash and bettors win or lose. The Coeur d’Alene Tribe proposed SB 1011, to repeal the 2013 authorization.
The tribe operates a casino on its reservation in North Idaho, but in 1998, it first identified the Greyhound Park Event Center in Post Falls, a former dog-racing track that hosts simulcast betting and is also a historic tribal gathering place, as the site where it wanted to build a casino. Because the site was outside the Coeur d’Alene Reservation, that would have required approval from the governor of Idaho for the tribe to purchase the land and place it in trust with the federal government as Indian land. Then-Gov. Phil Batt said no, saying gaming in Idaho should be limited to tribal reservations, so the tribe developed its casino in Plummer in the heart of its reservation, a far more remote location than the Greyhound Park’s freeway location not far from Spokane.
Now, the Greyhound Park is one of the sites where the slot machine-like instant racing terminals are operating. The other two are Les Bois Park, the horse racetrack just west of Boise, and the Double Down Betting Bar & Grill, an off-track betting parlor in Idaho Falls affiliated with the Sandy Downs racetrack.
Gov. Butch Otter’s pick to be the next director of the state Department of Environmental Quality was the public affairs director for Agrium, a fertilizer company that’s been involved in multiple hazardous materials incidents and is currently being monitored by the EPA, for the past several years until his retirement earlier this year, reports Idaho Public TV reporter Melissa Davlin. Davlin reports that Agrium is listed on the EPA’s website as out of compliance with the federal Resource Conservation and Recovery Act with a “significant violation.” You can read her full report here.
Tippets has agreed to recuse himself from any DEQ matters involving his former employer; prior to becoming public affairs manager there, he was human resources director for 13 years and has been with the plant, under a variety of owners, for nearly 40 years. He also told Davlin he knew he would have to be sensitive regarding discussions involving mining, fertilizer and agri-business, but wouldn’t recuse himself from all such matters. “Where do you draw the line? That’s a little difficult,” he said. He added that he believes there could be advantages to having someone with agri-business experience heading the DEQ. “I think, frankly, it can be a good thing to have that insight,” Tippets said. “You kind of know the questions to ask.”
Tippets, 63, told Eye on Boise that he's a supporter of collaboration, and helped lead Agrium to work collaboratively with conservation groups including the Idaho Conservation League and the Greater Yellowstone Coalition in his final years there. “I’m a person that works to try to resolve issues collaboratively when you can,” he said.
There’s more on the Idaho State Police’s non-existent investigation into Corrections Corp. of America, with the Idaho Statesman reporting that records it obtained under the Idaho Public Records Law show the Idaho Board of Correction believed ISP had conducted a criminal investigation and found no violations, a belief that fed into its decision to sign a $1 million settlement with CCA over understaffing at Idaho’s largest prison, which at the time had earned the nickname "gladiator school" for its rampant violence. But a year after the investigation supposedly had been under way, ISP said it never launched a criminal investigation.
Statesman reporter Cynthia Sewell reports on numerous references to the supposed investigation over the year, including a letter from a deputy attorney general assigned to the Idaho Department of Correction urging ISP to turn over its investigation results to the county prosecutor. Then-state prisons chief Brent Reinke formally requested a criminal investigation by ISP in February of 2013. As IDOC officials believed the ISP investigation was under way, they held off on their own probe, and turned over documents to the ISP. Sewell’s full report is online here.
After ISP announced it had done no investigation in February of 2014 and Gov. Butch Otter defended the agency, Attorney General Lawrence Wasden urged Otter to order one, and after initial delay, he agreed. ISP then determined it had a conflict of interest and the investigation was taken over by the FBI. On May 20, U.S. Attorney for Idaho Wendy Olson announced that the year-long federal investigation resulted in no federal criminal charges, but did uncover "miscommunications" and "uncorrected assumptions." "While these miscommunications ultimately gave rise to suspicion of an effort to delay, hinder or influence a state criminal investigation, such miscommunications, unsupported by any other evidence, do not rise to the level of criminal misconduct," Olson said. "There were a number of other actions or inactions that may be of concern to the state agencies, to the voters, to whatever."
Thursday the local chapter of Kootenai County Republican Women had their annual Women in Red luncheon. The money raised is used to fund scholarships and to purchase copies of the United States Constitution which are distributed to all high school seniors in Kootenai County. Governor Otter was the featured speaker this year.
Despite five years of warnings, Idaho has continued to violate the U.S. and Idaho constitutions by failing to provide poor people charged with crimes with lawyers who can adequately defend them, a class-action lawsuit filed today charges. Instead, the state has responded by creating a series of “virtually powerless committees,” and enacting minimal law changes in 2014 that, the lawsuit says, not only didn’t go far enough to fix the problems, but aren’t even being followed.
Among them: The 2014 legislation banned “fixed-fee” contracts with public defenders, in which they’re paid a set amount regardless of how many clients they represent or how complicated the cases are. That provides them an incentive to spend as little time as possible on each case, particularly if they also have paying clients, the lawsuit says. Yet, 19 Idaho counties still use fixed-fee contracts. You can read the full complaint here.
Idaho established a public defense subcommittee of its Criminal Justice Commission in 2010 to examine the problem after an audit pointed to serious deficiencies. It set up a special legislative committee in 2013. That panel then established “yet another commission to make recommendations to the legislature,” the lawsuit says. “Astoundingly, the state failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system. Because the executive and legislative branches refuse to take the necessary actions to fix Idaho’s public-defense system, it falls on this Court.”
The 2014 legislation set up a state Public Defense Commission, which among other things, was to propose rules and standards for public defenders statewide by January of 2015; it hasn’t done so, according to the lawsuit.
“State officials themselves have recognized the current constitutional crisis regarding indigent services in Idaho,” says the lawsuit, filed in state court by the American Civil Liberties Union of Idaho, the national ACLU’s Criminal Law Reform Project and Hogan Lovells, an international law firm. “In August 2013, the Chief Justice of the Idaho Supreme Court noted that ‘our system for the defense of indigents, as required by Idaho’s constitution and laws, is broken.’ And Gov. Otter acknowledged in his 2015 State of the State address that, despite the 2014 amendments to Idaho’s public defense statutes, ‘our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster.’”
The 2014 legislation also directed Idaho’s 44 counties to either establish an office of public defender, partner with other counties to do so, or establish contracts that don’t rely on fixed fees. Seven now have such offices, while two have partnered in a joint office. Thirty-four still contract the services out, with 19 of those under fixed-fee contracts, the lawsuit says. And one county has no arrangement, just appointing lawyers on an ad-hoc basis.
Repeated surveys and studies have found that caseloads are so high for Idaho public defenders that many poor defendants can’t reach their attorneys, the lawsuit charges, no matter how hard they try, and barely get to speak to them before they appear in court; among the named plaintiffs, one called his public defender more than 50 times from jail without reaching him. Plus, the lawsuit says only five of the 44 counties provide public defenders at defendants’ initial appearances, when pleas are taken and bail set – even though Idaho law specifically requires legal representation at initial appearances. As a result, several of the named plaintiffs spent months in jail after bail was set that was too high for them to afford, and they had no idea how to contest it.
The lawsuit, filed in 4th District Court in Ada County, was filed against Gov. Butch Otter and the seven members of the Idaho State Public Defense Commission, including two state lawmakers, a judge, and the state appellate public defender. Otter’s office had no comment; neither did Attorney General Lawrence Wasden's office.
State Sen. John Tippets, R-Montpelier, has been named the next director of the state Department of Environmental Quality by Gov. Butch Otter; Tippets will start July 6. He succeeds former Director Curt Fransen, who retired in May.
Tippets, 63, who is now in his third term in the Senate after serving six two-year terms in the House, currently chairs the Senate Commerce and Human Resources Committee; he co-chaired the joint legislative committee on state employee compensation. He is a retired public affairs manager for southeastern Idaho fertilizer manufacturer Agrium; Otter’s office says he has agreed to recuse himself involvement in any issues involving his former employer. He has a bachelor’s degree from Brigham Young University and a master’s degree in human resource management from Utah State University. When he served in the House, Tippets chaired the State Affairs Committee and served as majority caucus chairman.
Otter said in a statement, “John is what ranchers call a ‘good hand.’ When he’s assigned a responsibility, you can rest assured it will be accomplished professionally, thoughtfully and efficiently.” He said, “During this selection process I was particularly impressed with his vision for the agency, his commitment to its success, his grasp of the issues and his understanding of the dynamic between DEQ and the EPA. That’s critically important as Idaho works to assume control over issuance of water pollutant discharge permits in the coming years.”
Idaho has begun a multi-year process to take over permitting under the National Pollutant Discharge Elimination System, or NPDES, from the EPA; lawmakers instigated the move, which regulates water quality, and the DEQ is overseeing it.
Tippets, who told Idaho Public TV reporter Melissa Davlin he plans to move to Boise to take the job, said he doesn’t plan on making major changes at DEQ. “I told the governor that this wasn’t a department that needs someone to go in and fix it. It’s operating well. Director Fransen did a good job,” Tippets said; you can read Davlin’s full post here.
This is the third time in a month that Otter has chosen a current or former longtime state lawmaker as a member of his cabinet. Former longtime Sen. Dean Cameron, R-Rupert, co-chairman of the Legislature's joint budget committee, started today as the new director of the state Department of Insurance; and former Senate president pro-tem Bob Geddes, who served in the Senate from 1995 to 2010, is Otter's new state Administration Department director.
With various parties clamoring to intervene in the instant racing case, the Idaho Supreme Court issued an order today allowing Gov. Butch Otter, Coeur d’Alene Racing and Treasure Valley Racing to file “friend of the court” briefs in the case, but not to participate in oral arguments. That’s all Otter had asked. Coeur d’Alene Racing, operator of the Greyhound Park Event Center in Post Falls, wanted to both submit a friend of the court brief and participate in arguments; Treasure Valley Racing, operator of Les Bois Park near Boise, wanted to intervene as an official party in the case and participate in the arguments.
The Coeur d’Alene Tribe had objected to the two companies’ bids to participate, while both of them argued they have a big financial stake in whether they’re allowed to continue operating slot machine-like instant racing machines. The tribe said its dispute is with Idaho Secretary of State Lawerence Denney over the proper procedure to follow after a veto, and had nothing to do with the racing companies’ finances. This morning, Treasure Valley Racing filed a six-page reply to the tribe’s objections, saying it has “substantial interests that will be impaired” if the tribe wins its challenge.
The tribe wants the court to order Denney to certify SB 1011 as law, which would outlaw the instant racing machines. It contends Gov. Butch Otter’s attempted veto of the bill after lawmakers passed it was invalid because it came after the constitutionally-set five-day deadline for vetoing a bill.
The court, in its order this afternoon, ran down the list of all the filings in the case thus far. It said the three approved amicus, or friend of the court, parties must submit their briefs within 14 days. The tribe and Denney will have another 14 days after that to respond, and oral argument will be set “as soon thereafter as practical.”
Getting Idaho’s agriculture, technology and research sectors together to learn from each other and explore ways to accelerate agricultural technology in the state is the goal of the “Governor’s Agritech Summit,” which will be held Tuesday in Boise at the Boise Center. It’ll be hosted by Gov. Butch Otter and the state departments of agriculture and commerce, and promises to display “the future of farming and ranching.”
“We’ve come a long way since they started putting lights on tractors in the 1930s, and Idaho has always been in the thick of it,” Otter said. “Through this summit, we want to learn where new opportunities exist, where research is headed, and where technology can add value in the production process.”
Participants will help identify agriculture-related issues needing creative solutions and existing technology competencies that could apply to agriculture. The event will run from 1-4 p.m., with a networking session following from 4-5 p.m.; registration is $35, and can be completed online here.
Idaho Gov. Butch Otter wants to add his arguments to the instant racing case that’s pending before the Idaho Supreme Court, in which the Coeur d’Alene Tribe is suing to force Secretary of State Lawerence Denney to certify SB 1011 as law, repealing authorization for slot machine-like instant racing terminals in Idaho.
“The governor has an interest in continuing the implementation of sound public policy to fulfill the promise of the law allowing historic horse racing and refocus our attention on limiting and more effectively regulating rather than eliminating historic horse racing,” Otter’s in-house attorneys, David Hensley and Cally Younger, wrote in a petition filed today. If the court were to side with the tribe, they wrote, it “will not only supplant the decision of the Senate sustaining the veto, it will undo the policies and protections the governor has put in place to ensure historic racing is conducted legally and supports live racing.”
The Idaho Legislature in 2013 authorized betting on “historical” horse racing, or re-broadcasts of randomly selected past horse races. As a result, the “instant racing” machines began being installed at three locations in the state last year; lawmakers who said they didn’t anticipate that type of gaming as a result of the law voted by more than two-thirds this year to repeal it. Otter issued a veto dated April 3, but didn’t deliver it to the Senate until April 6, the Monday after Easter, which was two days after the deadline; if he doesn’t take action within five days, bills become law without his signature. The Senate, while inserting three letters into its official record noting that it didn’t receive the veti in time, nevertheless quickly took a vote on a possible override, which failed, receiving a majority but not the required two-thirds supermajority.
The Coeur d’Alene Tribe filed a lawsuit against Denney, asking the state Supreme Court to order him to certify SB 1011 as law because it became law without the governor’s signature; he refused, saying he would do so only if the Senate or the court directed him to. Yesterday, Denney filed his response to the lawsuit; he argued that the tribe is suing the wrong party, and the decision on whether the veto was valid or not is up to the Senate, not the Secretary of State.
Otter’s petition asks only that the governor be allowed to file a “friend of the court” brief in the case, supporting Denney’s position. Two other parties, Coeur d’Alene Racing, operator of the Greyhound Park Event Center in Post Falls, and Treasure Valley Racing, operator of Les Bois Park near Boise, have asked to be allowed both to file briefs and offer arguments when the justices hear the case.
The Coeur d’Alene Tribe has objected to Coeur d’Alene Racing's petition to offer "friend of the court" arguments in the case; today, Coeur d’Alene Racing filed its response to the tribe’s objections. “The Coeur d’Alene Tribe should not be allowed to dictate and truncate the extent of opposing points of view before this Court,” wrote attorney David Leroy, who noted that he is a former Idaho lieutenant governor who has served both as president of the Senate and as acting governor. With him representing the firm, “Coeur d’Alene Racing believes that it can substantially sharpen the perspective of this Court by briefing and arguing as to the balancing of legislative and executive needs and duties in the veto process,” Leroy wrote.
Also today, the tribe filed its opposition here to Treasure Valley Racing's petition to intervene as a party in the case, which noted the company's financial risk if the law is repealed. “Whether TVR will be harmed financially is not germane or helpful to the Court in resolving the questions raised in this action,” wrote attorney Deborah Ferguson, “as TVR surely cannot claim that the validity of the veto or the Secretary's duties turn on the magnitude of harm that a repeal of Idaho Code 54-25l2 would have on it or others.”
Treasure Valley Racing files to intervene; tribe opposes similar move yesterday by Greyhound Park operator
Treasure Valley Racing, operator of Les Bois Park in Boise, today filed a petition to intervene in the court case in which the Coeur d’Alene Tribe is challenging instant racing in Idaho. In the petition, Treasure Valley Racing’s attorneys, Barker Rosholt & Simpson, argued that the company “depends for its continued existence upon the governor’s veto being sustained by this Court.” The company says it spent $4 million to purchase 200 instant racing terminals between 2012 and 2014, as part of a $10 million upgrade to Les Bois Park and would shut down if it could no longer have the gambling machines; you can read the petition here.
Also today, the Coeur d’Alene Tribe filed its response to yesterday’s petition from Coeur d’Alene Racing LLC, operator of the Greyhound Park Event Center in Post Falls, which has 35 of the machines, to file a “friend of the court” brief and offer arguments in the case. The tribe's attorney, Deborah Ferguson, wrote that Coeur d’Alene Racing already had an opportunity to be heard during the legislative process, and argued that its position in favor of upholding Gov. Butch Otter’s veto of SB 1011 “is already well represented in this case and need not be duplicated.” You can read the tribe’s filing here.
State: ‘No opinion’ on whether instant racing repeal bill is law, argues Senate, not Secty of State, decides that
In the state’s response to the Coeur d’Alene Tribe’s instant racing challenge today, Idaho Secretary of State Lawerence Denney says he has no opinion on whether Gov. Butch Otter’s attempted veto of the instant racing repeal bill, SB 1011, was valid. “He takes no position concerning whether S. 1011 has become law,” wrote Assistant Attorney General Brian Kane.
While saying Denney will comply with any order the court issues, the state argues that Denney has no role in the process of a bill becoming law, unless either the governor or the Legislature actively sends him a bill to certify into law – or a court orders him to act. “No representative of the Senate, including the President of the Senate, the President Pro Tempore, the Minority Leader, or the Secretary of the Senate attempted to file S. 1011 with the Office of the Secretary of State for certification as law without signature,” Denney said in a sworn affidavit.
Instead, the state’s response says, the bill was sent to his office by the Senate secretary on April 28 along with all other bills that didn’t become law this session. Kane argues that it was up to the Senate to ask Denney to certify the law, and the Senate’s not named in the lawsuit, in which the tribe is suing Denney.
The state’s argument goes like this: If the governor misses a deadline to veto a bill but then tries to do so after the deadline, it’s up to the house where the bill originated – in this case, the Senate – to “determine whether the veto is timely and, based upon that determination, either (with a timely veto) proceed to consideration of an override or (with an untimely veto) process the bill as it would had the governor approved the Legislature.”
The Senate president pro-tem, minority leader and secretary all submitted statements that were read into the official journal of the Senate stating that the veto wasn’t received by the deadline. But the Senate then took a veto override vote anyway; it failed, achieving a majority but not the required two-thirds supermajority.
“If the Senate erred in not transmitting S. 1011 to the Secretary as it would have transmitted any other approved legislation, the remedy lies in directing that chamber to make the appropriate transmission,” the state response says. The state argues that ordering Denney to certify the bill as law would constitute “executive branch interference with the legislative process,” and violate “well settled separation of powers principles.”
“The Senate could have deemed the veto untimely and delivered the bill to the Secretary of State for certification but chose not to,” Kane wrote. “Simply put, it is up to the initiating chamber of the Legislature, not the Secretary, to determine whether a bill has been ‘authenticated.’ … It is then for the Judiciary to resolve any claims that the originating house erred.”
While making the argument that the remedy lies with court direction to the Senate rather than to the Secretary of State, the state’s response also suggests courts may be unable to give such direction to a house of the Legislature because of the separation of powers. “A second question beyond this threshold question is whether the originating house’s determination that a veto was or was not timely returned is judicially reviewable,” Kane wrote in a footnote to the argument. That question “is not presented” in this case, he wrote, because Denney is the only one being sued. You can read the state’s full response here; it runs 45 pages.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) - Idaho Attorney General Lawrence Wasden says the Coeur d'Alene Tribe is going after the wrong guy in their legal fight over instant horse racing terminals. The tribe filed a petition with the Idaho Supreme Court last week contending that Gov. C.L. "Butch" Otter's veto of legislation banning the betting machines is invalid because he didn't complete it within the required five-day time span. The tribe asked the high court to force Secretary of State Lawerence Denney to certify the legislation as law. On Wednesday, the attorney general's office filed its response with the Idaho Supreme Court. In the document, Wasden contends that the fault of any error in the veto lies outside of the Secretary of State's office and so it would be improper to force Denney to act.
I am reading the documents now and will have more on this soon.
The Idaho Supreme Court has issued an order this evening setting a briefing schedule in Coeur d’Alene Tribe v. Denney, the instant racing challenge. Idaho Secretary of State Lawerence Denney, who is represented by Attorney General Lawrence Wasden, is ordered to file his response to the tribe’s court challenge within 14 days. That gives the state slightly longer to respond than the tribe had suggested; in its motion for an expedited hearing, it asked for the state to respond by June 11; the tribe to file its reply by June 18; and the court to set a hearing for the week of June 22. That request was aimed at settling the issue before July 1.
I just heard back from Gov. Butch Otter’s office on today’s legal challenge, filed by the Coeur d’Alene Tribe, of Otter’s attempted but belated veto of SB 1011, the instant racing repeal bill. Mark Warbis, spokesman for Otter, said in an email, “We have no comment. Thanks.”
A constitutional question raised in today’s Idaho Supreme Court filing by the Coeur d’Alene Tribe is whether the state is essentially taking the position that Idaho has a “pocket veto” under the Idaho Constitution, allowing the governor to veto a bill without actually taking any action on it. Idaho’s never had that, but it does exist at the federal level.
According to the U.S. Senate’s reference website, a “pocket veto” occurs at the federal level when the president, who normally has 10 days to review a measure passed by Congress, has not signed the bill after 10 days – but during that 10-day period, Congress has adjourned. If Congress were still in session, the bill would become law without the president’s signature. But under the pocket veto, “If Congress adjourns during the 10-day period, the bill does not become law.”
When the tribe first requested Secretary of State Lawerence Denney to certify SB 1011, the instant racing repeal bill, into law, he refused, saying he didn’t believe he had that power. “I don’t personally think that we have the authority to do that,” he said in early May, acknowledging that a court fight was likely. “I think the court is probably the appropriate place to have those questions answered,” he said.
Denney said then that he’d consulted with the Idaho Attorney General’s office. “The Constitution is silent on the duties and the code says it has to be authenticated by the governor, which certainly it was not,” he said.
He was referring to Idaho Code 67-505, which states, “BILLS NOT RETURNED. Every bill which has passed both houses of the legislature, and has not been returned by the governor within five (5) days, thereby becoming a law, is authenticated by the governor causing the fact to be certified thereon by the secretary of state.”
The tribe’s legal filing says, “The Secretary contends he need not comply because the governor’s ‘authentication’ is missing, meaning, apparently, that the Secretary does not believe that he has to certify a law or deposit such law with the laws in his office until the governor further authenticates a law in some unspecified way.” But the tribe argues that reading of the code section is “incorrect as a matter of law,” saying, “The very act of a bill passing both houses of the Legislature coupled with the governor’s failure to return the bill within five days IS the ‘authentication’ by the governor. In other words, a passed bill is self-authenticated when those events have occurred. This Court has held that nothing more is required.”
Attorney Deborah Ferguson wrote in the tribe’s legal arguments, “To read this into the statute would in effect enlarge the governor’s veto powers considerably, as he could refuse to provide the authentication for the bill to become law. This would allow the governor a pocket veto, which this court has explicitly stated is not allowed under the Idaho Constitution.” She cited Cenarrusa v. Andrus, a 1978 Idaho Supreme Court decision.
The Idaho Constitution, in Article 4, Section 10, says Idaho governors have five days, not counting Sundays, to act on a bill while the Legislature is in session or it becomes law without the governor’s signature, “in like manner as if he had signed it.” If the Legislature has adjourned sine die – adjourned for the year, thus preventing the governor from returning the bill to them with a veto message – the governor has 10 days, not counting Sundays, to act before the bill becomes law without his signature.
Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said his office just received a copy of the filing "late this morning and we haven’t had a chance to go through it yet. So we don’t have anything to say until we get to that point.” Asked about the “pocket veto” question, Dvorak said, “We’ll have to read the briefs and response and go from there. We can’t speculate right now on that.”
Here’s a link to the 23-page Petition for Writ of Mandamus the Coeur d’Alene Tribe filed with the Idaho Supreme Court today, asking the justices to order Secretary of State Lawerence Denney to certify the instant racing repeal bill into law. In addition to asking the court to order Denney to act, the petition requests attorney fees and costs. You can read the tribe’s brief here, which lays out its legal arguments. In an additional Motion for Expedited Briefing and Hearing here, the tribe requests the court ask the state to reply by June 11, with the tribe filing its response by June 18, and the justices setting a hearing the week of June 22. That would allow the matter to be settled before July 1 – the date SB 1011, the repeal bill, was supposed to take effect.
The Coeur d’Alene Tribe is asking the Idaho Supreme Court to declare Gov. Butch Otter’s attempted veto of the instant racing repeal bill invalid, and enforce the law banning the slot machine-like devices on its effective date of July 1. The lawsuit, filed directly with the Idaho Supreme Court, asks the justices to order Idaho Secretary of State Lawerence Denney to certify SB 1011 into law, saying that’s what the Idaho Constitution requires.
“The powers defined by the Constitution are an essential part of the checks and balances of our democracy,” Deborah Ferguson, attorney for the tribe, wrote in legal arguments filed with the court. “The governor cannot enlarge his veto power under the Constitution. … The Constitution was not created for the benefit of the governor or the Legislature. Instead, it was created by our founders to protect the citizens of Idaho and their right to have duly enacted laws enforced. This basic right goes to the heart of our democracy.”
Ferguson is the same attorney who successfully represented four lesbian couples whose lawsuit overturned Idaho’s ban on same-sex marriage last year.
The instant racing repeal bill passed both houses by more than two-thirds margins, to repeal a law the Legislature had passed two years earlier to allow wagering on “historical” horse races, or replays of randomly selected past races. Lawmakers said they were duped, however, when the machines were installed at three Idaho locations – including 35 at the Greyhound Park Event Center in Post Falls, hundreds at Les Boise Park near Boise and dozens at an off-track betting bar in Idaho Falls – and they looked, sounded and acted like slot machines.
Backers of the move said the so-called “instant racing” machines, which show a few seconds of the end of a horse race on a tiny screen while reels spin, lights flash and the player either wins or loses, would save Idaho’s financially troubled horse racing industry by raising money for race purses. You can read my full story here at spokesman.com.
Longtime Sen. Dean Cameron, asked how he decided to make the move from serving in the Idaho Senate and co-chairing the budget-writing Joint Finance-Appropriations Committee to heading the state Department of Insurance, said, “This whole thing’s been rumored for some time, but honestly, nobody had really talked to me about it, other than people coming up and saying, ‘Are you taking the job?’ Nobody of any official capacity was talking to me. So I didn’t know if it would ever take place.”
Cameron has long owned an insurance business in Rupert; he’s midway through his 13th two-year term in the Idaho Senate.
“I was asked to submit an application and submit to an interview,” Cameron said. On the day after Idaho’s May 18 special legislative session, he was interviewed by Gov. Butch Otter. “We had a very candid, very good conversation, about my style and his style and expectations. And I just came to the conclusion that perhaps it was time to have Sen. Keough serve as (Senate Finance) chairman and time for me to move on and allow somebody else to serve in my district, and this was an opportunity that I shouldn’t overlook.”
“But it’s a hard decision, because I love the Senate, I love serving in the Senate, and I love representing my constituents and helping them,” Cameron said. “But after the conversation with the governor, and he was interviewing a couple others that day as well, so he didn’t offer it to me then; it was the following day that I got the call that he would like me to serve. Then I swallowed hard and talked with my wife, and decided to accept it.”
Otter said in a statement, “While the loss to the Legislature in experienced and skilled leadership will be significant, the Department of Insurance and the individuals and businesses it serves will benefit. I know the next person in line will step up admirably in the Senate, just as I know that Dean will do a great job leading the Department of Insurance as Bill Deal did before him. I also want to publicly thank Tom Donovan for his exceptional work since Bill’s retirement and throughout his career.” Donovan, the department’s deputy director, has served as acting director since Deal’s retirement at the end of 2014.
Idaho Gov. Butch Otter has named Sen. Dean Cameron, R-Rupert, the new director of the state Department of Insurance, replacing former director Bill Deal, who retired at the end of 2014. Cameron, a 13th-term state senator, co-chairs the powerful Joint Finance-Appropriations Committee, which writes the state budget. He also owns an insurance business in Rupert.
“While the loss to the Legislature in experienced and skilled leadership will be significant, the Department of Insurance and the individuals and businesses it serves will benefit,” Otter said in a statement. “I know the next person in line will step up admirably in the Senate, just as I know that Dean will do a great job leading the Department of Insurance as Bill Deal did before him. I also want to publicly thank Tom Donovan for his exceptional work since Bill’s retirement and throughout his career.”
Donovan, the department’s chief deputy director, has served as interim director since Deal’s retirement.
Cameron, 54, is a Burley native who holds an associate’s degree in political science from BYU-Idaho and was a Life Underwriting Training Council fellow in 1992. In addition to co-chairing the joint budget committee, he has co-chaired the legislative Health Care Task Force and served on the Senate’s commerce and resources committees.
“I appreciate the governor’s confidence and I’m looking forward to the new challenge,” Cameron said. “I also want to say how much I have appreciated the support of the people in District 27 and the opportunity to serve them in the Senate, as well as my time as co-chair of the budget committee with Representative Bell. I will be forever grateful for those experiences.” The appointment is subject to confirmation by the Senate.
Jonathan Medema, a deputy Ada County prosecutor who ran unsuccessfully for judge last year, has been appointed a 4th District judge by Gov. Butch Otter; Medema was appointed to the post that opened with the retirement of 4th District Judge Thomas Neville.
Medema has been with the prosecutor’s office since 1997; he first moved to Idaho in 1992 to work as an engineer at the Idaho National Laboratory. In addition to a law degree, he holds a bachelor’s degree in aeronautical and astronautical engineering.
Otter said, “The Idaho Judicial Council sent me a superb slate of candidates for this position. But Jonathan’s keen understanding of the changing dynamics of our judicial system was most impressive.” Eleven attorneys applied for the judgeship; three were recommended to the governor by the Idaho Judicial Council: Medema; Anthony R. Geddes, a public defender for Ada County; and Davis F. Vandervelde, a Nampa attorney. Rebecca Arnold, who outpolled Medema in last year's election but lost a runoff to current Judge Sam Hoagland, was among the 11 applicants, but wasn't among the three recommended by the council.
Idaho Gov. Butch Otter issued a five-page executive order today implementing his greater sage grouse conservation plan, which is aimed at conserving the bird and its habitat to avoid a listing under the federal Endangered Species Act. Otter said the move “demonstrates Idaho’s commitment to maintaining a viable and healthy population of greater sage-grouse and the habitat they need to thrive in a balanced and sustainable way while maintaining predictable levels of use on our public lands.”
In a statement, he said, “Our fish and wildlife belong to the people of Idaho. We’re not waiting for a federal designation to do the right thing by the species, but at the same time I have an obligation to protect Idaho’s sovereignty and self-determination.”
The plan was developed by a task force Otter appointed in 2012; it covers 15 million acres in southern Idaho and includes measures to conserve the sage grouse and its habitat against threats from wildfire, invasive species, infrastructure construction, livestock grazing practices and more. You can read the executive order here.
Longtime Idaho political observer Jim Weatherby had this reaction to today’s announcement by federal prosecutors that they won’t file criminal charges in the CCA contract scandal: “If not criminal negligence, then at least gross mismanagement was on display in the CCA case. This will be a blemish on the Otter record regardless of legal technicalities.” Weatherby said he hopes a newly named interim legislative committee on state purchasing procedures “can learn lessons from the CCA and IEN (Idaho Education Network) cases,” adding, “The credibility of state government is at stake.”
You can read my full story here at spokesman.com.
After an extensive, 15-month investigation by the FBI and the U.S. Department of Justice, federal prosecutors today declined to file any federal criminal charges of fraud or public corruption in connection with Idaho’s canceled private prison contract with Corrections Corporation of America. The main reason: Though CCA submitted falsified staffing records for thousands of hours of guard duty they didn’t staff at Idaho’s largest prison, investigators found that the falsified records weren’t used to defraud the state out of payments – because the state was paid based on the number of inmates, not the number of guard staff hours. The contract allowed the state to receive damages for that type of contract violation.
“No evidence showed that the false entries were made by the low-level employees with the intent to defraud the state of Idaho of money or property, as is required under the federal criminal fraud statutes,” said U.S. Attorney for Idaho Wendy Olson. “In addition, no evidence obtained during the FBI investigation showed that state employees at the Idaho State Police, the Idaho Department of Correction or the governor’s office sought to delay, hinder or corruptly influence a state criminal investigation, as is required under the federal public corruption statutes. Rather, the evidence shows a series of miscommunications and uncorrected assumptions that led to incorrect reports in the media and incorrect statements in related civil federal court proceedings that the Idaho State Police were conducting a criminal investigation, when in fact they were not.”
Federal investigators interviewed about 20 state or CCA employees in their probe, and went through voluminous documents obtained from the ISP, the Idaho Department of Correction, the governor’s office, other state agencies, CCA and the courts. The investigation included FBI agents and specialists in Boise, Salt Lake City and Washington, D.C.
Olson said an Idaho Department of Correction employee falsely testified in federal court that the Idaho State Police was conducting a criminal investigation into the matter, when it was not. But that wasn’t perjury, she said, because due to miscommunications among state agencies, the employee believed that was the case, and the Idaho State Police never corrected it. Only after months of references to the non-existent ISP investigation, including refusals of public records requests because of supposed an ongoing investigation, did the state finally acknowledge ISP had never launched a criminal investigation. It finally did so in February of 2014, but a month later, the FBI stepped in and took over.
The state also agreed to a $1 million civil settlement in February of 2014 over the understaffing and contract-compliance issues, before Gov. Butch Otter asked ISP to launch a criminal investigation. Asked if that chain of events – settling before investigating – was found to be improper, Olson said, “We looked at whether there were violations. There were a number of other actions or matters that may be of concern to the state agencies or to the voters or whatever.” But, she said, “There is insufficient evidence to prove any criminal charges beyond a reasonable doubt.”