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Three candidates for governor to debate tonight in Nampa: Otter, Balukoff and Pankey…

Three candidates for governor of Idaho will face off in a live debate tonight at 8 on Boise TV station KTVB, broadcast from Northwest Nazarene University in Nampa. The three: GOP Gov. Butch Otter, Democratic challenger A.J. Balukoff, and Constitution Party candidate Steve Pankey.

Libertarian candidate John Bujak, who debated Otter and Balukoff in an Oct. 3 debate in Coeur d’Alene, along with independent candidate “Pro-Life,” and who is also scheduled to debate Otter and Balukoff on Idaho Public TV on Oct. 30, is crying foul at his exclusion from the Nampa matchup. But KTVB told Bujak he didn’t meet its criteria for participation in the debate, the AP reports, including $10,000 in outside donations. Pankey also didn’t meet that, but qualified under a separate criteria for candidates who had received at least 10 percent of the vote in a previous statewide race; Pankey ran in the GOP primary election for lieutenant governor in 2010 and received 13.5 percent of the vote.

UPDATE: Bujak has been providing additional information to KTVB, and just sent out this tweet: "I believe that KTVB is going to allow me to participate in tonight's debate. I should have confirmation before noon. Stay tuned!"

At the first debate in the governor’s race in Twin Falls on Sept. 24, just Balukoff and Bujak faced off, after Otter declined to participate. The Oct. 9 Idaho Falls City Club debate featured just Otter and Balukoff. Click below for more from AP reporter Kimberlee Kruesi.

Former Otter lawyer charges bias in 9th Circuit’s three-judge panel selection

Monte Neil Stewart, the attorney who represented both Idaho and Nevada in oral arguments at the 9th Circuit Court of Appeals in same-sex marriage cases, today leveled a highly unusual charge at the 9th Circuit: That the three-judge panel selected to hear Idaho’s and Nevada’s cases wasn’t selected through a “neutral” process, and instead was purposely stacked with judges favorable to same-sex marriage in order to achieve an outcome favorable to the plaintiffs.

“We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious,” Stewart wrote in legal filings today with the 9th Circuit, requesting a full en banc review of Nevada’s case. “But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State.”

Stewart contended that a statistical analysis he had completed by an expert statistician shows it’s highly unlikely that 9th Circuit Judges Stephen Reinhardt and Marsha Berzon would be selected to hear Nevada’s case, after also sitting on, in Reinhardt’s case, four other cases in the past five years dealing with gay rights, and in Berzon’s, five other cases. “Sophisticated statistical analysis validates the reasonable person’s sense that something is amiss,” Stewart wrote. “Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this Circuit. That perception gives rise to an appearance of an uneven playing field.”

Carl Tobias, a law professor at the University of Richmond in Richmond, Va., who has closely followed same-sex marriage cases, said an biased selection process is “virtually unheard of” in federal appeals courts. “The three-judge panels are randomly drawn,” Tobias said. “It is virtually unheard of that the people in charge of the process would game the system. My whole sense of the federal appeals courts is that the judges are too professional to allow that to happen.”

You can read Stewart’s full petition for rehearing here. Stewart was Gov. Butch Otter’s private attorney for Idaho’s unsuccessful appeal to the 9th Circuit, after a U.S. magistrate judge overturned Idaho’s ban on same-sex marriage in May as unconstitutional. In his latest legal filings, Otter has replaced Stewart with Washington, D.C. attorney Gene Schaerr.

AdWatch: Otter’s new commercial focuses on education

Idaho Gov. Butch Otter launched his third television campaign ad in southern Idaho over the weekend; focusing largely on education. It is scheduled to go statewide on Tuesday, including the Spokane broadcast TV market. Here’s a look at the ad and its claims:

WHAT IT SAYS: “We’ve made Idaho one of America’s best places to start a small business. And we’re also making it a great state to get a good education. We got $35 million dollars back in the classroom. And we put broadband into every high school. And now I have a 20-point education plan that will fund additional technology and reinvest in our teachers so they’re amongst the best in the nation. Great jobs, great schools. I’m working hard to build a brighter future.”

Narrator: “Butch Otter, governor.”

THE CLAIMS: The claim about being one of the best places to start a small business is a repeat from one of Otter’s earlier commercials, and is based on a Governing Magazine survey of small business owners, in which Idaho was one of three states getting an “A-plus.”

The $35 million claim refers to Otter’s proposal this year – which the Legislature approved as part of the public school budget – to restore $35 million of the $82 million in operating funds that were cut from Idaho’s schools during the recession. “I have committed to replenish classroom dollars and we are poised to continue building on this year’s $35 million investment,” Otter said in a statement today. Otter’s Task Force on Improving Education made 20 recommendations, including a new, more generous teacher pay system tied to a “career ladder” and a new tiered licensing system; improving school technology; and restoring the $82 million in cuts.

Otter launched the Idaho Education Network to bring broadband to every Idaho high school; the state’s contract award to Education Networks of America and CenturyLink, however, has been challenged in court, prompting the federal government to withhold millions in funding for the broadband network that the state has had to replace from its general fund to keep the network operating at Idaho high schools.

“It’s one of the state’s most popular politicians doing his own ad,” said Jim Weatherby, longtime observer of Idaho politics and emeritus professor at Boise State University. “I think that’s effective. Some speculate we have ‘Otter fatigue,’ and maybe that’s true, but I still think he’s a pretty effective spokesperson for his campaign.” 

Online: You can watch the ad here.

Of ‘fly-by-night payday loan’ operators, voter turnout, and vested rights…

The legal arguments that Gov. Butch Otter submitted to the 9th Circuit today in his unsuccessful bid to continue a stay on same-sex marriage in Idaho included some unusual ones, including his contention that if the 9th Circuit were to lift the stay, it would “improperly treat the sovereign State of Idaho as an ordinary litigant, entitled to no more respect than a fly-by-night payday loan business or massage parlor.” Asked about that, Deborah Ferguson, attorney for the plaintiffs in Idaho’s same-sex marriage case, said, “It’s rare to see language like that. … I thought it was inappropriate. Truly, I thought it was bizarre.” She added, “I don’t think it added anything to their brief or their argument, and clearly, the court wasn’t swayed by it.”

Otter’s new legal arguments today also included a contention that allowing gay marriage to start in Idaho would dissuade people from voting in the upcoming election. “If laws passed by state legislatures can be overturned without the state having an opportunity for full appellate review before the law loses its force, why should ordinary citizens bother to vote for state office-holders?” Otter’s filing asked. Ferguson called that argument “completely without merit” and “a desperate sort of argument.”

Otter also contended today that if the 9th Circuit doesn’t prevent Idaho same-sex couples from getting legal marriage licenses, the case will essentially be over – once some have wed, they’ll have a “vested right” to having the state continue to recognize their marriages. “If the state ultimately prevails, the couples so married will undoubtedly claim – as they did in Utah – that they now have a ‘vested right’ to the marital status they achieved as a result of this court’s decision,” wrote Gene Schaerr, attorney for Otter. “And the only legal authority on this question indicates that those couples will be correct.”

Said Ferguson: “I think he’s right.” You can read my full, updated story online here.

9th Circuit lifts stay, effective Wed. morning

The 9th Circuit Court of Appeals has just issued an order lifting the stay that blocked same-sex marriage from starting in Idaho - effective Wednesday morning. That's 9 a.m. Wednesday, the order says; so that would be 10 a.m. Boise time. 

The plaintiffs hadn't yet filed their reply to today's filings from Gov. Butch Otter and Idaho Attorney General Lawrence Wasden. Deborah Ferguson, attorney for the plaintiffs, said, "I guess they kind of knew what we were going to say. So that's just fantastic."

You can see the 9th Circuit's order here.

State files responses, Wasden drops opposition to stay on gay marriage, Otter doesn’t

The state has filed its responses with the 9th Circuit Court of Appeal on the stay in the same-sex marriage case, and Attorney General Lawrence Wasden has dropped his opposition to the stay – but Gov. Butch Otter has not. You can read my full story here at spokesman.com. Wasden, in his five-page filing, said he and his clients, Ada County Clerk Christopher Rich and the state of Idaho, “do not oppose” the motion to lift the stay. Wasden’s filing says he and his clients have concluded, “given the actions taken by the Supreme Court … that they cannot satisfy the stringent standards governing issuance of stays.” He notes, however, that that “should not be interpreted as a concession to the correctness of this court’s Oct. 7 decision.” Wasden’s filing leaves open the possibility of further appeals in the case, but concedes that same-sex marriages can legally start in Idaho now under the 9th Circuit's ruling.

Otter’s filing, by private attorney Gene Schaerr in Washington, D.C., takes umbrage at the idea that the stay would be lifted before “reasonable appellate options have been exhausted,” saying, “Granting that motion would … improperly treat the sovereign State of Idaho as an ordinary litigant, entitled to no more respect than a fly-by-night payday loan business or massage parlor.”

It repeats the arguments made to the U.S. Supreme Court on Friday attempting unsuccessfully to get that court to continue to block gay marriage in Idaho: That Idaho is likely to succeed in appealing the case either at the 9th Circuit or the Supreme Court; that Idaho’s case is different because it involves a heightened standard of review adopted by the 9th Circuit; that allowing same-sex marriage is bad for children; and that it violates the state’s sovereignty, because Idaho voters approved a constitutional amendment banning same-sex marriage in 2006.

It also adds a new argument: That allowing gay marriage to start in Idaho would dissuade people from voting in the upcoming election. “If laws passed by state legislatures can be overturned without the state having an opportunity for full appellate review before the law loses its force, why should ordinary citizens bother to vote for state officer-holders?” Otter’s filing asks.

There’s also another new argument posed: That if the stay is lifted and same-sex couples are issued marriage licenses, they’ll claim a “vested right to the marital status they achieved as a result of this court’s decision and its vacatur of the current stay. And the only legal authority on this question indicates that those couples will be correct.”

You can read Wasden’s filing here, and Otter’s here.

AdWatch: Balukoff’s two latest ads airing statewide, Otter launches new one

Democratic candidate for governor A.J. Balukoff has launched two new TV ads statewide in the past week and a half – including the Spokane broadcast TV market – and GOP Gov. Butch Otter launched a new one over the weekend. I’ll take a look at the claims in Otter’s new ad later, but here’s a look at Balukoff’s commercials and their claims:

School superintendent ad: Starting a week and a half ago, Balukoff began airing an ad featuring Shoshone School District Superintendent Rob Waite; you can see it here. Here’s what Waite says in the ad:

“I’m Rob Waite and I’ve been an educator for 25 years. Let me tell you, we’re shortchanging our students. Under Gov. Otter we’ve fallen to 50th in the nation in what we invest per student. We have trouble holding onto our best teachers and our classrooms are too crowded. Close to 40 school districts in Idaho have gone to a four-day school week. I’ve been a Republican all my adult life. I don’t think I’ve ever voted for a Democrat. But this November I’m voting for A.J. Balukoff. To me it’s about more than politics. It’s about our students and our future.”

THE CLAIMS: Idaho’s ranking for per-pupil funding, from all sources, dropped to 51st in the nation in the latest U.S. Census report, issued in May and covering data from fiscal year 2012. That’s after all states and the District of Columbia. A separate measure of per-pupil spending in specific areas put Idaho 50th, ahead of only Utah. According to the latest tally from the Idaho State Department of Education, 42 Idaho school districts and 11 charter schools have gone to four-day school weeks.

Jim Weatherby, Boise State University emeritus professor and longtime observer of Idaho politics, said, “He’s getting outside Boise, with the Shoshone superintendent, which I think is effective, and he’s obviously trying to reach out to Republicans, having a dyed-in-the-wool Republican endorse him and lay out the case for the difficult condition education is in in this state.”

Otter’s new ad also focuses on education, attempting to paint a sunnier picture.

Movie trailer ad: Balukoff’s newest ad was circulating online earlier, but now has launched on broadcast TV statwide; you can see it here.  A spoof of movie trailers, it opens with a version of the ratings form that appears at the beginning of feature film trailers, but says, “The following PREVIEW has been approved for ALL AUDIENCES. The candidate advertised has been rated G – GOOD LEADERSHIP. All voters admitted.”

In the ad, with dramatic, swelling music and images, a narrator says, “When the good ol’ boy system stops progress and keeps Idaho in last place, there’s A.J. Balukoff – the accountant. A job creator who’s built successful businesses. Balukoff will get our economy moving again. A parent and school board president, Balukoff will fight for the resources students need. Because Idaho’s success is A.J. Balukoff’s only goal.”

THE CLAIMS: This ad makes few claims. Like earlier Balukoff ads, it accurately presents Balukoff’s background as a successful businessman, accountant and former owner of a large CPA firm, and longtime president of the Boise School Board.

“Our feeling was that people tend to tune out traditional political campaign ads as soon as they see it come up on the TV, and aren’t very inspired by them,” said Balukoff campaign spokesman Mike Lanza. “So we wanted to do something that was kind of fun to get people’s attention and make them more aware of A.J. Balukoff. … It was intended as an attention-grabber.”

Weatherby said, “It’s a rather unique ad which stands out a bit, an ad that’s actually somewhat entertaining.” He noted, “Again, no hint at how all this good stuff would be accomplished.” However, he said, “Whatever you can do to attract attention at this point as the campaign noise gets louder will make a difference. It’s kind of a fun ad.”

9th Circuit wants state response on Monday to emergency motion to dissolve stay

The 9th Circuit Court of Appeals has just issued an order calling for the state of Idaho to respond by noon on Monday to the same-sex marriage plaintiffs’ emergency motion to dissolve the stay, and clear the way for gay marriage in Idaho. That’s noon Pacific time; then, the plaintiffs, if they choose to, may file a reply by 5 p.m. Pacific. That still could leave time for the court to rule late Monday and allow Idaho counties to issue marriage licenses to same-sex couples when they open on Tuesday morning after the three-day Columbus Day holiday weekend, or perhaps to rule on Tuesday morning.

You can read the court’s brief order here.

Plaintiffs file emergency motion to 9th Circuit to lift stay, allow marriages in Idaho

The plaintiffs in Idaho's same-sex marriage case have filed an emergency motion with the 9th Circuit Court of Appeals to lift the stay and directly authorize gay marriages to begin in Idaho; you can read it here.

In the motion, attorney Deborah Ferguson wrote, “While defendants cannot show that the  State of Idaho would suffer any harm in the absence of a stay, the challenged laws cause serious, continuing, and irreparable harm to plaintiffs and other same-sex couples—and to their children—each day they remain in effect.”

“Same-sex couples who wish to marry are subjected to irreparable harm every day they are forced to live without the security that marriage provides,” she wrote. “That harm is not speculative, but immediate and real.”

She also wrote that Idaho’s ban in gay marriage is unlikely to get review from the U.S. Supreme Court, which today lifted its stay on the 9th Circuit’s decision. “On Monday of this week, the Supreme Court denied seven petitions for writs of certiorari seeking review of judgments from three courts of appeals that together held that five States’ prohibitions on marriages by same-sex couples violate those couples’ Fourteenth Amendment rights,” Ferguson wrote. “There is no reason to believe that any further petition for further review by defendants, whether in this Court or the Supreme Court, will meet any different fate.”

Roller coaster of a day on same-sex marriage in Idaho caps week of dramatic developments

Here’s a link to our full story at spokesman.com on the tumultuous developments today on same-sex marriage in Idaho – from Gov. Butch Otter vowing this morning to continue to fight it, to the U.S. Supreme Court’s order this afternoon lifting a stay, to couples gathering at courthouses across the state but being turned away at most because a final order hadn’t yet issued from the 9th Circuit, to Otter’s announcement tonight that the state will comply with any order from the 9th Circuit.

“We are a nation of laws,” Otter said. “Idaho now should proceed with civility and in an orderly manner to comply with any forthcoming order from the 9th Circuit.” Otter’s statement seems to suggest that he’s dropping his appeals. When I asked that question, I got this response from the governor tonight: "I look forward to conferring with the Attorney General and legislative leaders in the coming week on this issue. In the meantime, I encourage patience and civility." Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said this evening, “Our official response right now is we are waiting for the 9th Circuit to decide, and when it does, we will review our legal options.”

By the close of business today, six marriage licenses had been issued to same-sex couples in Latah County, on the advice of the county attorney there. Kootenai County’s courthouse is actually open tomorrow morning until noon. But most county courthouses are now closed until Tuesday morning, with the Columbus Day holiday on Monday.

Otter: ‘Idaho should proceed with civility and in an orderly manner to comply with any order from 9th Circuit’

Idaho Gov. Butch Otter just issued this statement:

“The Supreme Court’s order lifting Justice Kennedy’s stay effectively allows same-sex marriage in Idaho as soon as the 9th Circuit directs compliance with its decision. I disagree with the court’s conclusion, which negates the 2006 vote of the people of Idaho, is contrary to the values of most Idahoans, and undermines fundamental states’ rights.  But we are a nation of laws. Idaho now should proceed with civility and in an orderly manner to comply with any forthcoming order from the 9th Circuit.” 


Frustrated county clerk: ‘I don’t think they’re going to be able to stop it’

Bonner County Clerk Ann Dutson-Sater said her county didn't issued any marriage licenses to same-sex couples today; it’s now closed for the three-day weekend, and won’t reopen until Tuesday at 9 a.m. after the Columbus Day holiday. “Our instruction earlier today from Attorney General Wasden was he wanted the counties to wait until further word from him,” Dutson-Sater said. “So we’re on hold.”

She said her office has had “lots of phone calls” about when it will issue licenses. “They’re just waiting,” said.  “They’ll let us know, no matter what time of day or night, so we can be prepared at 9 a.m. on whatever day it is,” or even on a moment’s notice if the word comes mid-day.

“I’d just like to get it going, you know?” Dutson-Sater said. “All this waiting, then, ‘Oh no, hold off for another minute.’ I just want to see it start happening, because it’s going to happen anyway. I don’t think they’re going to be able to stop it.”

Latah County has now issued 3 marriage licenses to same-sex couples, 3 more waiting…

Latah County has now issued three marriage licenses to same-sex couples, and three more are waiting; the clerk’s office there closes in 11 minutes. “I think there’s going to be six when we finish,” said county Clerk Susan Petersen. She said she believes Latah is the only county that decided to issue licenses this afternoon.

“We were given a directive to wait for the written mandate from the 9th Circuit and to keep in contact with our prosecuting attorneys,” she said, “and our prosecuting attorney’s office gave me the opinion that I needed to proceed with the marriage licenses.” She said her office attracted a crowd this afternoon, and she described the mood among the crowd as “very jubilant.”

Latah County issues marriage license to same-sex couple, on advice of county attorney

The Latah County Clerk has issued a marriage license to two females, signaling the start of same-sex marriage in Idaho – even before a final, formalizing order from the 9th Circuit. Latah County Clerk Susan Petersen said on the advice of the Latah County prosecutor she issued the license about 3:45 p.m. The two women came to her office in Moscow about 2:30 p.m. to get a license and had to wait while officials determined if they were allowed to start issuing licenses to same-sex couples, said Petersen, a Republican.

“We’re just trying to follow the law,” Petersen told Spokesman-Review reporter Jonathan Brunt.

Expert: Gay marriage in Idaho ‘inevitable,’ continued state appeals just ‘wasting time, money and making many people unhappy’

Carl Tobias, a law professor at the University of Richmond in Richmond, Va., who’s been watching same-sex marriage cases around the country, said today’s U.S. Supreme Court order means Justice Anthony Kennedy referred the stay question to the full Supreme Court for review, and the full court rejected the stay. “I think that shows that the only chance for cert is an appeal that holds a ban is constitutional,” he said. “Cert” is short for “certiorari,” the process by which the high court agrees to take up an appeal.

“The heightened scrutiny argument was an attempt to pique the Court’s interest and it is creative,” Tobias said, referring to the state’s arguments submitted to the high court. “However, it did not secure a stay and all the Attorney General can do now is delay the inevitable by running out all the procedural options, wasting time, money and energy and making many people unhappy.”

At Idaho courthouses, waiting for word…

Phil McGrane, chief deputy Ada County clerk, said the county is prepared to issue marriage licenses to same-sex couples if it gets the go-ahead from the Idaho Attorney General’s office, but it hasn’t heard anything yet. “It looks like we’re waiting for the 9th Circuit,” he said. “I’m standing at the marriage license desk as we speak.” The room is filled with reporters, McGrane said, and one same-sex couple has arrived to wait for a possible license.

If the 9th Circuit acts within the next hour, licenses could conceivably be issued today. But if it’s later than 5 p.m. Boise time, Ada County’s courthouse will be closed until Tuesday at 8 a.m. That’s because Monday is a state holiday – Columbus Day – and all state and county offices will be closed.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, just issued this statement: “The order from the U.S. Supreme Court that came down this afternoon is pretty clear. Now we turn our attention to what the 9th Circuit Court of Appeals will do. Until then, our office will be communicating clearly and frequently with the Idaho Association of Counties and clerks across the state, and will advise them on how to proceed.”

With Supreme Court ruling, all eyes now on 9th Circuit…

“Today’s decision by the Supreme Court confirms that there is no good reason to further delay allowing all Idaho families to enjoy the dignity, security, and protection that marriage provides,” Shannon Minter, legal director for the National Center for Lesbian Rights, said of today’s U.S. Supreme Court ruling lifting the stay on same-sex marriage in Idaho. “We hope that the Ninth Circuit will act quickly to make its decision effective so that all Idahoans will have the freedom to marry as soon as possible.”

Minter said the Supreme Court’s decision allows the 9th Circuit Court of Appeals to enter an order allowing its decision in Idaho’s case to take effect. The 9th Circuit already issued such an order on Tuesday evening, but it recalled it the next day after U.S. Supreme Court Justice Anthony Kennedy issued his stay. So now all eyes are on the 9th Circuit…

Idaho Attorney General Lawrence Wasden held a “webinar” with county clerks across the state earlier today to discuss the issue. “But it was before this decision came down,” said Wasden’s press secretary, Todd Dvorak. “They had a lot of questions about procedure and where we’re at and what to do.”

Supreme Court: Stay application is denied, Kennedy’s orders vacated

The U.S. Supreme Court has just issued an order in Idaho's same-sex marriage case; you can read it here. It's not long; it just says, "The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated."

That means Justice Anthony Kennedy, who had issued a temporary stay to half gay marriages from starting in Idaho, referred the question to the full court, and they decided against the stay. It's not yet clear what that means as far as when same-sex marriages could begin in Idaho. The 9th Circuit Court of Appeals, after Kennedy issued his stay, recalled its "mandate" that put its decision declaring Idaho's gay marriage ban unconstitutional into effect immediately. So if the 9th Circuit takes no further action today, there still could be some delays. The state is planning appeals including a request for a full-court hearing at the 9th Circuit and a full-scale appeal to the U.S. Supreme Court. 

AP: Supreme Court lifts stay on same-sex weddings in Idaho

The Associated Press in Washington, D.C. has just sent out this news alert: "Supreme Court lifts hold on same-sex weddings in Idaho"

Idaho files reply brief to Supreme Court, asks to keep stay in place

The state of Idaho has filed a reply brief to the U.S. Supreme Court this morning, in response to yesterday afternoon’s filing from the plaintiffs in the same-sex marriage case; you can read it here. Unlike the original motion to Supreme Court Justice Anthony Kennedy for a stay, which came only from Gov. Butch Otter, this reply brief is a joint one from both Otter and Idaho Attorney General Lawrence Wasden.

The reply brief makes it clear that the state plans to appeal only a subsidiary issue – the standard of review – to the Supreme Court, not the full question of whether same-sex marriage is unconstitutional. “The issue in this case will be presented in a way that does not require the Court to resolve conclusively the global question of whether the Fourteenth Amendment in any of its aspects bars a State from defining marriage as the union of a man and a woman,” the brief states, saying that makes it different from the seven petitions from five states that the high court refused to take up on Monday, thus legalizing same-sex marriage in those states and others in the affected circuits.

Essentially, the state is saying it wants the high court to take up a side issue, overrule the 9th Circuit on that, and then send the case back to the 9th Circuit to be argued again there with a different standard of review. Presumably, that would then lead to another appeal to the U.S. Supreme Court on the merits of the case, extending the process by months or years.

The state’s brief takes issue with the 9th Circuit’s ruling, saying that by applying “heightened scrutiny” to cases involving discrimination based on sexual orientation, a standard the 9th Circuit established in its earlier Smith-Kline case ruling, the circuit is creating  new “suspect class” of people who can’t be discriminated against. “The decision below turns not on fundamental rights but on a single Ninth Circuit panel’s path-breaking holding that gay men and lesbians constitute a suspect class protected by heightened scrutiny,” the brief says. It says the 9th Circuit is “creating the first new suspect class in 30 years.”

The state then argues that gay men and lesbians don’t fit one of the criteria for a “suspect class” subject to discrimination: Political powerlessness. “The LGBT movement today has enormous political power,” the brief says. “The rapid rise of their political and social power is unprecedented in our Nation’s history.”

The brief also argues that Idaho’s same-sex marriage ban doesn’t discriminate against gays and lesbians, because it “says nothing about sexual orientation—it merely specifies that any person can marry only a person of the opposite sex. It cannot be denied that, for a variety of personal reasons, gay men and lesbians can and sometimes do marry persons of the opposite sex.” The state says that while the ban “can create emotional and other hardships,” Idaho’s constitutional ban is “facially neutral with respect to sexual orientation.”

Idaho GOP commends Otter, Wasden for continuing court fight over same-sex marriage

The Idaho Republican Party has issued a statement commending GOP Gov. Butch Otter and Attorney General Lawrence Wasden for continuing the state’s court fight against same-sex marriage. The party’s statement says its platform calls on Idaho officials to “use all means possible to prevent expansion of the definition of marriage beyond that of a bond between one man and one woman.” The statement says the party and its nominees “believe that the expressed will of Idaho voters in amending our Constitution must be respected,” referring to the 2006 vote that added the ban on same-sex marriage to the Idaho Constitution. Click below for the full statement. 

Lively debate between Otter, Balukoff includes clash on same-sex marriage, gay rights; new revelation from Otter about CCA

Here’s a link to my full story at spokesman.com on today’s lively debate between GOP Gov. Butch Otter and his Democratic challenger, A.J. Balukoff, in which the two went head-to-head over same-sex marriage and gay rights; debated an array of education issues from preschool to higher education funding; and differed on everything from jobs and the economy to Medicaid expansion.

After Balukoff sharply criticized Otter for agreeing to a $1 million settlement with Corrections Corp. of America for overbilling and other problems with its now-canceled management of Idaho’s largest state prison - before a criminal investigation had been launched, ad noted that CCA was a big donor to Otter’s campaigns, Otter offered a new revelation: “I personally did not involve myself in the negotiations of the settlement with CCA because I had received money from CCA for my campaign,” he said. “So I recused myself and let the professionals make that decision. I did not.”

Then he added: “By the way, that final agreement, if (there is) anything that we find out in the FBI investigation, that agreement is set aside and then we can go after CCA.”

Plaintiffs file response to Justice Kennedy, asking for same-sex marriage stay to be lifted

As directed, attorneys for four Idaho couples who successfully sued to overturn the state’s ban on gay marriage have submitted a response to U.S. Supreme Court Justice Anthony Kennedy, opposing the temporary stay he granted yesterday on the 9th Circuit Court of Appeals decision that Idaho’s ban is unconstitutional. In the 27-page brief, attorney Deborah Ferguson argues that the state is wrong in its argument that the state will be harmed if same-sex marriages are allowed to start in Idaho; instead, she argues, it’s the couples who will be harmed if they’re not.

“The primary ‘harm’ that applicants identify is the State’s inability to enforce its marriage laws,” Ferguson wrote. “But a State can have no legitimate interest in enforcing unconstitutional laws.”

“Respondents and numerous other same-sex couples in Idaho will face concrete, grievous, ongoing harm from a stay,” she wrote. “Throughout the duration of a stay, same-sex couples will face major life events such as births, illnesses, and deaths, all without the crucial legal protections afforded by marriage.”

The brief also disagrees with the state’s arguments that there’s a split between circuits on the question of the level of review for such cases – whether they should get “heightened scrutiny” or the less-stringent “rational basis” review. “No court of appeals since Windsor has held that state marriage laws discriminating against same-sex couples withstand constitutional scrutiny—no matter the standard of review used,” Ferguson wrote.

She also discounted states’ rights concerns raised by the state. “Nothing in Windsor suggests that federalism concerns trump the constitutional limitations on a State’s power to regulate marriage,” she wrote. “Were it otherwise, Loving might have been decided differently.” That’s a reference to the 1967 case Loving vs. Virginia, in which the high court prohibited state laws banning interracial marriages.

Otter defends same-sex marriage ban, Balukoff calls for adding the words…

Same-sex marriage and the “Add the Words” movement prompted sharp disagreements between GOP Gov. Butch Otter and Democratic challenger A.J. Balukoff today.

Otter defended his continuing push to defend Idaho’s overturned ban on same-sex marriage in court, saying he’s upholding his oath to defend the state’s Constitution. “Idaho is pro-traditional marriage, and I’m not going to do anything to put that in danger,” he declared. One person in the Idaho Falls audience applauded, and Otter joked, “Thank you, Mom.”

Balukoff said, “Discrimination is discrimination and it’s always wrong. When we take that oath of offce to uphold the Constitution, that is not only the Idaho Constitution but the U.S. Constitution also. … No matter how many of our citizens vote to pass the law, we cannot pass a law that violates the United States Constitution. This is about discrimination, treating all people with fairness and respect. Regardless of what our beliefs may be, we still need to treat them equally.”

Otter responded, “The Supreme Court has not settled the question on this yet. Perhaps, God willing, we will be there within a week. Right now there’s a stay on it for Idaho. Idaho’s the only state that has a stay on it.” He said, “States are the ones that should be in charge and have always been in  charge of the definition and the issuance of licenses for legal marriage.”

Asked if he would lead an effort to add the words “sexual orientation” and “gender identity” to the Idaho Human Rights Act if he’s elected, banning discrimination on those bases, Balukoff said, “I would.” He said, “It just shows respect to grant them that hearing. To stonewall for eight years is not acceptable. … We should grant the hearing and in my view we should strengthenr our human rights statute to include the four words.”

Otter said, “I met twice with the group last year that was advocating for adding the words. And the two times I met with them I agreed that the Legislature should hold a hearing. And I believe that the Legislature was that close to doing just that, until the antics started up, until we found people hiding in the closet, until they started stopping people from doing their legally elected jobs. … People that represented people right here in this room could not get into the chambers to do their jobs. Civil disobedience, when it stops duly elected legislators from doing their job, then I can understand the angst that it caused in the Legislature and finally the resistance.”

He added, “I would say that probably next year, most likely next year you will see a hearing for adding the words.” Balukoff responded, “That’s good news, that we have enough respect for these folks to have a hearing.” Otter said, “All I’m asking is that they show the Legislature the same respect.”

Guv candidates debate jobs, Medicaid, private prison…

Other topics on which Gov. Butch Otter and Democratic challenger A.J. Balukoff have mixed it up in today’s Idaho Falls debate: Balukoff has called for expanding Medicaid, to take advantage of federal taxes Idahoans already are paying and help the state. Otter said, “When we launch into an entitlement program like that, we need to make sure it’s sustainable.” He said he’ll work with legislators on the issue.

On jobs, Balukoff said, “Our marketing plan seems to be tax breaks and cheap labor.” He said rather than work so hard to bring companies into Idaho, the state should focus on helping the 40,000 small businesses already in the state to “grow and thrive and add employees.” Otter countered, “Every large business in Idaho today started out as a small business.” He said, “Businesses that are indigenous to Idaho are our No. 1 priority, no matter what you just heard. … Idaho was voted the second-best state in the union to start a new business, and a small business at that.”

After Balukoff criticized Otter for his handling of the canceled Corrections Corp. of America contract to run Idaho’s largest state prison, Otter said the contract was in place before he became governor, and said he stayed out of decisions involving it because CCA was a major campaign contributor. 

Otter, Balukoff clash on education

Gov. Butch Otter and Democratic challenger A.J. Balukoff have clashed hard on education issues so far during today’s City Club of Idaho Falls debate. Among the highlights:

On supplemental levies:

Balukoff noted that then-Gov. Jim Risch in 2006 lowered property taxes and raised the sales tax a penny. “Ninety-five districts have been forced to pass supplemental levies,” he said, “so now we have both the 1 penny sales tax increase and the property tax back.” That, he said, has “created greater disparity among our districts than we’ve ever seen. … So we are not maintaining and honoring that constitutional mandate.”

Otter noted that property values fell during the recession. “Local folks in all these districts that he talked about, they were the ones that went down and voted and said yes we want to do this, yes we want to support our local school district. So it wasn’t us at the state that said you have to do this,” he said.

Balukoff responded, “Their choices were stark: Larger class sizes, let teachers go, or tax themselves.”

On kindergarten readiness and early learning:

Otter: “I think we need to focus on K-12. … If you take a look at adding 20, 30 40,000 more people to a system that’s already under-funded, you’re not being fiscally responsible.”

Balukoff: “A preschool option for every parent in this state would be the most effective thing we could do in the short term to raise student achievement statewide.”

On higher ed funding:

Balukoff: “If we’re going to call our universities state-supported universities, they need to be supported at more than 20 to 25 percent. … The bulk of the support for higher education comes in the form of student tuition and fees, which is sort of like a hidden tax on the people that can least afford to pay it.”

Otter: “Idaho still has a pretty good bang for its buck in higher education.” He also noted that he established the Opportunity Scholarship Fund and expanded the Governor’s Cup, which raises money for college scholarships for Idaho students.

Otter: ‘I should be on the right’

As Gov. Butch Otter and Democratic challenger A.J. Balukoff took the stage in at the City Club of Idaho Falls today, Otter was directed to the podium at stage left. “I should be on the right,” Otter said, prompting moderator David Adler to comment, “I have to say, governor, I’ve never known you to be to my left. It’s an interesting moment.”

The debate in Idaho Falls began with a four-minute opening statement from each of the two candidates. Balukoff hit hard at Otter’s record on education, the economy and prison privatization, and said if he’d been governor and the state treasurer had overridden internal controls and made an inappropriate transfer of funds that cost the taxpayers money, he’d have asked for his resignation. “If Gov. Otter’s record on jobs was made into a movie, it’d have to be called, ‘Honey, I shrunk the economy,” he said. Otter focused his statement on eastern Idaho issues, including the growth of the Idaho National Laboratory and nuclear research. “Just drive down University Boulevard,” he said. “Ten years ago those buildings weren’t even there, 10 years ago those buildings weren’t even contemplated.”

Otter, Balukoff prepare to debate…

Idaho GOP Gov. Butch Otter and Democratic challenger A.J. Balukoff are about to debate before a big crowd at the City Club of Idaho Falls; there are also more than 100 people here at the Owyhee Plaza in Boise for a simulcast of the debate, made possible by Idaho Public Television. In Idaho Falls, the crowd numbers nearly 300.

Of orders, stays, scrutiny and legal issues…

The 9th Circuit Court of Appeals this afternoon issued an order rescinding its order last night that specifically made its ruling on Idaho’s same-sex marriage case take effect immediately. The 9th Circuit said this afternoon’s order was issued to comply with U.S. Supreme Court Justice Anthony Kennedy’s stay on the ruling legalizing Idaho gay marriages. It’s in effect until further action by either the U.S. Supreme Court or the 9th Circuit.

Kennedy’s stay requires the plaintiffs in the case to file a response by 5 p.m. tomorrow. At that point, Kennedy could review both sides’ arguments and decide to end the stay, which would allow Idaho same-sex marriages to start Friday morning. Or, he could decide to extend it further; or, he could consult with the full U.S. Supreme Court to see if the full court wants to extend the stay further, which most likely would occur if the stay will extend beyond a few days. Clear as mud?

To complicate matters further, Gov. Butch Otter’s filing to the Supreme Court isn’t focused so much on the marriage issue as on the heightened-scrutiny standard the 9th Circuit applied in its decision. Otter’s attorneys contend that there’s now a split between circuits about the appropriate level of scrutiny for such cases, so the Supreme Court should take up that issue, and if it rejects heightened scrutiny, send the case back to the 9th Circuit to be considered under a lesser, rational-basis level of scrutiny.

Same-sex marriage supporters: ‘We’ll be back’

Here’s a link to my full story at spokesman.com on this morning’s tumultuous events on the gay marriage front. As same-sex couples lined up for marriage licenses at county courthouses around the state, Gov. Butch Otter succeeded in winning a last-minute stay issued this morning by U.S. Supreme Court Justice Anthony Kennedy. Couples were turned away, some in tears; but in Twin Falls, one gay couple received a license before news of the stay arrived. Attorney Deborah Ferguson, who represents the four lesbian couples who successfully sued to overturn Idaho’s ban on same-sex marriage, clutched the one-page order from Kennedy outside the Ada County Courthouse. She said she’ll file a response as directed, on or before 5 p.m. tomorrow. “We’ll be back,” she said.