Latest from The Spokesman-Review
Senate President Pro-Tem Brent Hill, R-Rexburg, is working on a compromise bill regarding discrimination protections for gay and lesbian Idahoans, NPR reporter Jessica Robinson reports today. Hill said he is drawing on a newly passed Utah law, but not copying it.
"I don’t think that a business should deny services to a person because of their sexual orientation," Hill told NPR. "However, I think that businesses should have a right not to participate in events that promote something that’s contrary to their religious beliefs.” While saying he’s not ready to talk specifics, Hill said he wants to make sure photographers, bakers and other businesses in the wedding industry are not obligated to participate in same-sex weddings.
Hill said his bill wouldn’t change the existing Idaho Human Rights Act, and instead would create a new section in another portion of Idaho law; you can see Robinson’s full report online here.
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.
Arguments are under way at the U.S. Supreme Court on same-sex marriage this morning; the New York Times has a live blog here. Once the arguments conclude, the court is planning to post both the audio and the unofficial transcript on its website here; they should be up by noon Boise time. Boise State Public Radio reporter Adam Cotterell has a report here on what the case means for Idaho.
Chelsea Gaona Lincoln writes on the “Better Idaho” blog today about her meeting with Rep. Paul Shepherd, R-Riggins, which she requested after his comments to the House about gays. “On Thursday, I went with two other gay Idahoans,” she writes. “We sat down with Shepherd, Rep. Janet Trujillo (R-Idaho Falls) and House Republican Caucus Communications Director Cindy Agidius. I’ll be honest, Agidius did most of the talking, not Shepherd. Regardless, we had an opportunity to tell him our coming out stories.”
“In the end, Rep. Shepherd said he didn’t intend his comments to be hurtful,” Lincoln writes. “I believe him. I take him at his word. And that’s a step forward, which are the steps I like to take.” Her full post is online here.
Idaho has signed on to a brief with 14 other states urging the U.S. Supreme Court to uphold bans on gay marriage and leave the matter to voters and lawmakers, the AP reports. The brief, filed today, argues that the court will do "incalculable damage to our civic life" if it decides that same-sex couples must be allowed to marry everywhere in the United States.
Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking the court to declare that the Constitution forbids states from denying same-sex couples the right to marry. The justices are scheduled to hear arguments on April 28; you can read a full report here from the Associated Press in Washington, D.C.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — The legal team that successfully fought to overturn Idaho's ban on gay marriage has filed paperwork seeking an additional $300,000 in court costs. Boise attorney and lead counsel Deborah Ferguson filed the three-page motion Thursday in federal court to cover legal expenses since late May. A federal judge late last year awarded Ferguson and her team $400,000 for work through May. Gay marriage became legal in Idaho on Oct. 15 after the 9th Circuit U.S. Court of Appeals upheld a federal judge's ruling made in May declaring Idaho's ban on same-sex marriage violated the U.S. Constitution. Idaho Gov. C.L. "Butch" Otter and Attorney General Lawrence Wasden's in December filed separate petitions to the U.S. Supreme Court to continue fighting against gay marriage.
The Idaho Legislature will hold a full hearing on an “Add the Words” bill starting Monday morning at 8 in the Lincoln Auditorium, after nine years of refusing to do so. The measure would add the words “sexual orientation” and “gender identity” to the Idaho Human Rights Act, to ban discrimination on those bases.
House State Affairs Committee Chairman Tom Loertscher has reserved the room for up to three days, saying he wants to let everyone be heard. Sign-in sheets for public testimony will be set out at 7:30 a.m. There will be two: one for people from out of town, and one for locals. Loertscher said he’ll call on those who’ve traveled from out of town first.
Last year, more than 100 silent protesters wearing black “Add the 4 Words” T-shirts were arrested at the state Capitol as they blocked doorways and entrances, standing with their hands over their mouths to symbolize that they hadn’t been heard on the issue.
Sen. Grant Burgoyne, D-Boise, a co-sponsor of the bill, said it was gratifying to see introduction of the bill approved on a 6-1 vote earlier in the House Ways and Means Committee. “I’m taking from the way this was handled that there is an increased recognition of the need to deal with this legislation in a serious and straightforward way,” he said. “I personally believe that a full and fair hearing will change minds.”
More than 1,000 people rallied at the state Capitol on Saturday for the “Add the Words” bill, to add the words “sexual orientation” and “gender identity” to the Idaho Human Rights Act and outlaw discrimination on those bases in housing, employment and public accommodations. Among the speakers was Boise Police Chief Mike Masterson, who told the crowd, “We all have a stake in equal justice and fair treatment. Public safety is rooted in trust and justice. Citizens must first feel a sense of safety before they can realize the other products of our society that make it functional and livable, like economic and cultural vitality, and recreation.”
The bill was introduced last week in the House Ways & Means Committee on a 6-1 vote, and is expected to be scheduled for a full hearing in the House State Affairs Committee the week of Jan. 26. Proponents have pushed the bill for the past nine straight Idaho legislative sessions without ever being granted a hearing.
Other speakers at the rally included Rep. Paulette Jordan, D-Plummer, shown here at right in this photo by the UI Argonaut’s George Wood. "It is clear the people of Idaho are way ahead of the Legislature on this issue,” Jordan told the crowd. “Large cities and smaller towns have passed anti-discrimination ordinances to protect their citizens. It is our turn, as legislators, to do what is right.”
Ten Idaho cities have now enacted ordinances to ban discrimination against gays; the latest was Driggs in early January.
While Idaho’s case waits in line, U.S. Supreme Court agrees to take up 6th Circuit gay marriage case
The U.S. Supreme Court today agreed to take up the same-sex marriage issue in a series of cases from the 6th Circuit, opening the door to possible settlement of the issue for all 50 states. You can read the high court’s order here. Idaho Gov. Butch Otter and Attorney General Lawrence Wasden are appealing Idaho’s gay marriage case to the U.S. Supreme Court as well, but they just filed their petitions two weeks ago; that means the Idaho case isn’t yet up for consideration by the high court, which still needs additional briefing before it could consider Idaho’s petition.
Otter filed a "friend of the court" brief in the 6th Circuit case asking the court wait to take that case up until it can consider Idaho’s case along with it. On Thursday, his office attorney, Tom Perry, said if the high court just takes up the 6th Circuit case, Idaho likely will be filing friend-of-the-court arguments in that case. And the high court could decide the matter for all circuits after hearing the 6th Circuit case.
Todd Dvorak, spokesman for Wasden, said, “They haven’t taken up our case yet, and there’s no guarantee that they will.” But Wasden said today’s high court ruling is the beginning of the court making a final decision on the marriage question.
Deborah Ferguson, attorney for the four Idaho couples who successfully sued to overturn Idaho’s ban on gay marriage, said her side “will urge the court to decline review” and let their win become final. The 9th Circuit U.S. Court of Appeals already has rejected the state’s appeal. “Our case will go forward and will be considered by the Court at a later conference, probably in February,” Ferguson said.
The high court, when it considers Idaho’s petition, will have the option of taking the case and hearing arguments; declining the case and letting the 9th Circuit’s decision stand; or holding the case until the other cases are decided. You can read a full report here at spokesman.com.
Idaho Attorney General Lawrence Wasden has issued this statement on his vote against paying $55,000 of Gov. Butch Otter's legal fees for private attorneys he brought in to help with same-sex marriage appeals:
"My view on the use of outside counsel is no secret. I've maintained a long, consistent and principled position that hiring outside attorneys and paying the high price for that work is unnecessary. I took an oath to defend the Idaho Constitution. That's my job and exactly what I've been doing on this case from the beginning. My office is equipped to handle these cases, and even now I have two staff attorneys in Washington, D.C., preparing to argue an important Department of Health and Welfare case before the U.S. Supreme Court next week."
The Constitutional Defense Council has voted unanimously to pay the court-ordered $401,663 in attorney fees and costs to the winning side in Idaho’s same-sex marriage case, and 3-1 to pay $55,000 for costs for outside counsel hired by Gov. Butch Otter in his appeals of that case to the 9th Circuit U.S. Court of Appeals and the U.S. Supreme Court. Idaho Attorney General Lawrence Wasden, who joined in the appeals, voted no, but hired no outside counsel, using state attorneys. Asked why he voted against paying the governor’s outside legal bills, Wasden said, “I didn’t think it was appropriate.”
Otter had said earlier that those costs were being covered from within his office; today’s vote means $55,000 of those costs, for fees to outside attorneys and for court-required printing fees, will come from the state’s Constitutional Defense Fund instead. Otter’s in-office counsel, Tom Perry, said total costs for the governor’s office are now up to around $150,000.
After the meeting, Otter said, “My understanding is the attorney general didn’t think we needed outside counsel, but we need outside counsel all the time. If it’s needed, it’s needed.”
House Speaker Scott Bedke, who voted in favor of both motions, said, “I think it’s appropriate at times.”
Perry said more costs are anticipated as the case continues; Otter is pressing an appeal to the U.S. Supreme Court, and also has filed an “amicus” or friend-of-the-court brief, in the 6th Circuit’s U.S. Supreme Court same-sex marriage appeal.
Idaho’s Constitutional Defense Council, which consists of the governor, the attorney general, the speaker of the House and the president pro-tem of the Senate, will hold a special meeting Thursday at 8:30 a.m. in the Borah Post Office building’s 2nd floor courtroom, to consider payment of a $401,663 court order to cover attorney fees and costs for the winning side in Idaho’s same-sex marriage case, which the state lost in U.S. District Court last May. Idaho has since appealed unsuccessfully to the 9th Circuit U.S. Court of Appeals, and is currently pressing an appeal to the U.S. Supreme Court. Same-sex marriage became legal in Idaho on Oct. 15.
The council oversees the Constitutional Defense Fund, which currently has a balance of nearly $1.7 million after lawmakers agreed to transfer another $1 million into it last year from the state’s general fund. The defense fund, by law, can be spent “to examine and challenge, by legal action or legislation, federal mandates, court rulings, and authority of the federal government, or any activity that threatens the sovereignty and authority of the state and the well-being of its citizens.” The fund has “historically been used to pay legal settlements, primarily attorney fees, that have been awarded through the courts,” according to state budget documents.
According to state law, any one of the four members of the council can call a meeting, and its decisions are by majority vote. Interest on the $401,663 judgment started accruing on Dec. 19, so the longer the state waits, the more it’ll cost. Yesterday, the state Board of Examiners approved the claim and referred it to the council for consideration of payment.
Idaho’s state Board of Examiners, which consists of the governor, the secretary of state, the attorney general and the state controller, has voted unanimously to approve the claim for $401,663 in attorney fees and costs in the state’s same-sex marriage litigation that a federal judge has order the state to pay the winning side in the case. Four Idaho couples sued, challenging Idaho’s ban on gay marriage as unconstitutional; they won their case in federal court last May. The state appealed unsuccessfully to the 9th Circuit U.S. Court of Appeals and is now pressing an appeal to the U.S. Supreme Court; same-sex marriage became legal in Idaho on Oct. 15.
The order for attorney fees and costs is just for the portion of the case in U.S. District Court in Idaho, not for the appeals. Board of Examiners members asked no questions about the matter at their meeting this morning, and approved the payment without comment. A memo from the state Division of Financial Management asked the board to approve the claim and refer it to the Constitutional Defense Council for consideration of payment. That council consists of the governor, the attorney general, the speaker of the House and the president pro-tem of the Senate.
The council can convene on the call of any member and can make payments from the state’s Constitutional Defense Fund by majority vote. That fund currently has a balance of nearly $1.7 million, after lawmakers agreed to transfer another $1 million into it last year from the state’s general fund. Gov. Butch Otter, asked by reporters yesterday whether he thought more money needed to be deposited into the fund as he continues his court fight against same-sex marriage, said no. “I believe … that there is plenty of money in the constitutional defense fund,” Otter said.
In a somewhat anticlimactic ruling, the 9th Circuit U.S. Court of Appeals on Friday rejected motions for an en banc review – a reconsideration by a larger, 11-judge panel – of the October ruling overturning bans on same-sex marriage in Idaho and Nevada. Idaho already had appealed to the U.S. Supreme Court, saying the motion for reconsideration apparently wasn’t going to be granted; Idaho Gov. Butch Otter had requested it Oct. 21, but more than two months went by without any action.
Friday’s order said only, “The panel has voted to deny the petitions for rehearing en banc. The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc reconsideration. The petitions for rehearing en banc are denied.”
9th Circuit Judge Diarmuid O’Scannlain of Portland, joined by Judges Johnnie B. Rawlinson of Las Vegas and Carlos Bea of San Francisco, penned a dissent, saying the en banc review should have been granted, noting that the 6th Circuit recently ruled against same-sex marriage.
“Thoughtful, dedicated jurists who strive to reach the correct outcome—including my colleagues on the panel here—have considered this issue and arrived at contrary results,” O’Scannlain wrote. “This makes clear that—regardless of one’s opinion on the merits of the politically charged and controversial issues raised by these cases—we are presented with a ‘question of exceptional importance’ that should have been reviewed by an en banc panel.” He further argued that a 1972 one-sentence ruling in a Minnesota case, Baker v. Nelson, still should be considered precedent on the marriage question; it found no federal question to be decided in a case where two men sued for the right to marry.
You can read the order and dissent here; the dissent also argued that states should be able to decide the marriage issue for themselves. The 9th Circuit has 29 judgeships; it’s so large that in the 9th Circuit, an en banc review involves an 11-judge panel, rather than convening the entire court, as in other circuits.
A new poll by Utah pollster Dan Jones & Associates shows that two-thirds of Idahoans believe it should be against state law to discriminate against gays, lesbians and transgender people in housing, employment and business. The poll, which queried 520 Idaho adults in late December and has a margin of error of plus or minus 4.3 percent, found that 67 percent thought such discrimination should be illegal; while 27 percent didn’t; and 6 percent didn’t know.
The poll was commissioned by Idaho Politics Weekly, a new online newsletter created by Zions Bank, that is promising monthly research from the prominent Utah polling firm. Utah-based Zions Bank opened a striking new headquarters building in downtown Boise in the past year that’s among the tallest skyscrapers in Idaho, and has been expanding into the state. The bank said the newsletter will include original content along with aggregated headlines and links about Idaho politics and policy.
“As sponsor, Zions Bank is not endorsing or taking positions on public policy issues,” publisher LaVar Webb wrote on the bank’s website. “Rather, the bank views this newsletter as an extension of its guiding principles to be involved in the community and provide needed services. Idaho Politics Weekly is not partisan or ideological and is not a traditional journalistic endeavor. It is intended to serve the public policy community with news and information.”
The poll findings are significant as Idaho’s legislative session opens with promises from legislative leaders that a full hearing on the “Add the Words” bill – legislation to add the words “sexual orientation” and “gender identity” to the Idaho Human Rights Act, to outlaw discrimination on those bases – will be held this year. The bill has been proposed for each of the past nine years, but never got a hearing. During last year’s session, more than 100 people were arrested in protests demanding that the bill be heard.
The poll showed that support for making such discrimination illegal stretched across all political lines, with 58 percent of Republicans supporting it, 87 percent of Democrats, 72 percent of independents and 52 percent of those who described themselves as “very conservative.” The poll also found that 64 percent of Idaho Mormons who said they were “very active” in their church supported making such discrimination illegal. Idaho Mormons who said they were “not active” in their church were 80 percent in favor; Catholics, 71 percent; Protestants, 57 percent; members of other religious denominations, 73 percent; and respondents not affiliated with any religion, 75 percent.
The Zions survey is consistent with other Idaho polls, and suggests support for banning discrimination against gays in increasing. In 2008, the Boise State University public policy survey queried Idahoans about whether they thought it should be illegal to fire someone because they are, or are perceived to be, gay or lesbian. Sixty-three percent said yes.
Idaho Attorney General Lawrence Wasden has now also filed an appeal to the U.S. Supreme Court in Idaho’s same-sex marriage case, along with Gov. Butch Otter. “This case presents the Court with the opportunity to resolve a divisive split on a question of nationwide importance: Whether the United States Constitution now prohibits states from maintaining the traditional definition of civil marriage, i.e., between one man and one woman,” Wasden’s petition says.
Wasden’s petition, prepared by Deputy Attorney General Clay Smith and filed today, focuses on a states’ rights argument, saying, “The lower federal courts have rendered conflicting decisions whether the Constitution requires states to sanction same-sex marriage. This conflict has resulted in a Constitution that treats states unequally: It permits some to exercise the power they have always had to define civil marriage, but denies other states that same right.”
Like Otter’s petition, Wasden’s argues that the 9th Circuit ruling should have been governed by a one-line decision in a 1971 case from Minnesota, Baker vs. Nelson, which found no federal question to review in a lawsuit from that state in which two men sued because they weren’t allowed the marry. The 9th Circuit, and other appeals courts around the country, have held that last year’s Windsor decision changed that precedent; Wasden disagrees.
“The Ninth Circuit panel opinion wrongly concluded that this Court’s cases had rendered Baker obsolete,” Wasden’s petition says. The Windsor case, it says, “did not mention Baker. It instead affirmed Baker’s point that states have the authority to define marriage.” The Windsor case was the one that overturned the federal Defense of Marriage Act, or DOMA; it involved a New York woman who was ordered by the IRS to pay hundreds of thousands in estate taxes upon the death of her wife, because DOMA ordered the federal government only to recognize marriages among opposite-sex partners. Under New York law, the inheritance from a spouse was exempt from estate tax.
Wasden’s petition also echoes some of the arguments in Otter’s, saying, “The state has defined marriage as a union between a man and a woman not based on a false stereotype or discriminatory assumption, but on irrefutable biological facts. It confers the benefits of civil marriage on opposite-sex couples because they are biologically able to procreate and responsible for virtually all children being raised in Idaho households, not because of their sexual orientation.” You can read it here. The petition runs 31 pages; with the attached appendices, including the previous rulings in the case, the document runs a total of 193 pages.
Idaho Gov. Butch Otter has filed a petition appealing the legalization of same-sex marriage in Idaho to the U.S. Supreme Court, saying the state’s case is the “ideal vehicle” to resolve the issue for the nation; you can read my full story here at spokesman.com. “The time has come for this court to resolve a question of critical importance to the states, their citizens and especially their children: Whether the federal Constitution prohibits a state from maintaining the traditional understanding and definition of marriage as between a man and a woman,” Otter’s Washington, D.C. attorney, Gene Schaerr, wrote in the 41-page petition.
Otter argues that the high court should take up Idaho’s appeal either in addition to or instead of a 6th Circuit case already pending before the court with a similar petition. “It is important that at least one of the cases this court considers on the merits be a case in which the traditional definition of marriage has been defended with the most robust defense available,” Schaerr wrote. “This is that case.”
Same-sex marriage became legal in Idaho on Oct. 15, after the state lost its appeal in the 9th Circuit U.S. Court of Appeals. Four lesbian couples – two who wanted to marry, and two who wanted their home state to recognize their legal out-of-state marriages – sued in federal court, and won their case last May. Their attorney, Deborah Ferguson, already has pledged to defend the decision. “The 9th Circuit decided it correctly, and we will vigorously defend the decision,” she said today.
Idaho Gov. Butch Otter said today that he’ll confer with the other members of the state’s Constitutional Defense Council – the speaker of the House, president pro-tem of the Senate, and Attorney General – before calling a meeting of the council to pay a new $401,663 judgment for attorney fees in Idaho’s thus-far unsuccessful bid to defend its ban on same-sex marriage. But Otter said he’s glad the Legislature last year, at his urging, deposited another $1 million in the fund, giving it a balance that can easily cover the payment with plenty left over.
“I always anticipated that we would try to keep a million dollars in that fund, so it would suggest to those who want to bring a constitutional question to us that we’d be prepared at a moment’s notice to take it on,” Otter said today. In 2012, the balance in the fund was down to just a bit over $300,000; lawmakers that year put in another half-million. This year’s million-dollar addition brought the fund up to nearly $1.7 million, well in excess of the current bill, which started accruing interest on Friday.
Here are the past expenditures Idaho’s Constitutional Defense Council has made from the state’s Constitutional Defense Fund – all for attorney fees:
- $190,547 to Elam & Burke in 1995-96 for attorney fees in case involving nuclear waste shipments to Idaho National Laboratory
- $47,606 for attorney fees awarded in the Idaho Coalition United for Bears v. Cenarrussa case, regarding ballot initiatives, in 2004
- $380,526 for attorney fees awarded to Planned Parenthood in 2006 for case involving anti-abortion legislation that was found unconstitutional
- $66,000 for attorney fees awarded to Planned Parenthood in 2008 for another case involving anti-abortion legislation that was found unconstitutional
- $75,000 for attorney fees awarded to the Pocatello Education Association in 2009 for a case involving unconstitutional legislation related to donations to unions
- $54,350 for attorney fees awarded in Daien v. Ysursa in 2011, a case involving ballot access for independent presidential candidates
Lawmakers have deposited $2.5 million in the fund since its inception in 1995.
The 9th Circuit U.S. Court of Appeals today granted Idaho Gov. Butch Otter’s motion to submit additional arguments in the state’s same-sex marriage case, but rejected without comment his bid to submit a copy of a 57-page amicus brief from a Louisiana case that Otter argued presents “a gold mine of scholarship regarding the practical, real-world impact of redefining marriage.” Otter wants an en banc review, by an 11-judge panel, of the earlier 9th Circuit decision overturning Idaho’s ban on same-sex marriage as unconstitutional, which was made by a three-judge panel. Same-sex marriage has been legal in Idaho since Oct. 15; you can read the court's latest order here.
Idaho Gov. Butch Otter has filed a motion with the 9th Circuit Court of Appeals asking that the state be allowed to file additional arguments in its motion for an en banc review, a reconsideration by an 11-judge panel of the earlier three-judge panel’s rejection of Idaho’s ban on same-sex marriage as unconstitutional. “Since the Governor submitted his petition, the Sixth Circuit has issued an opinion counter to this Court’s ruling in the case, requiring a reply by the Governor regarding this new circuit split,” Otter’s attorneys wrote. They also cited an amicus brief filed in the Fifth Circuit same-sex marriage case in Louisiana, and submitted a copy, saying it has presented “a gold mine of scholarship regarding the practical, real-world impact of redefining marriage.”
“Plaintiffs … have no answer to Gov. Otter’s showing that by its ‘explicit terms’ Idaho’s marriage laws discriminate facially, not on the basis of sexual orientation, but on the basis of biological complementarity,” the lawyers wrote. “Removing the man-woman definition threatens serious harm to the institution of marriage, and, thus, to the children of heterosexual couples.” You can read Otter's brief here.
Idaho officials heartened by 6th Circuit ruling against gay marriage, say they’ll press appeal to U.S. Supreme Court
Idaho officials say they have new hope that their state’s same-sex marriage case could be taken up by the U.S. Supreme Court, after Thursday’s 6th District ruling upholding bans on gay marriage in four states – the first federal appeals court to rule that way, after a string of rulings unanimously going the opposite direction. Those have included Idaho’s case; the 9th Circuit U.S. Court of Appeals rejected Idaho’s appeal and overturned the state’s ban on same-sex marriage last month. Gay couples have been legally able to marry in the state since Oct. 15, and the state now recognizes marriages of same-sex couples that took place legally in other states.
Thursday’s ruling, which upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, is “significant because it establishes a conflict among the circuits, and creates a situation in which the Supreme Court is likely going to have to resolve the issue,” said Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden. “Because of that, we are moving forward with our plans to file a petition for a writ of certiorari with the U.S. Supreme Court.” That’s the process for asking the high court to take up an appeal. Dvorak said the state has until Jan. 5 to file that petition.
Idaho Gov. Butch Otter, who already has a petition pending with the 9th Circuit asking that court to reconsider its ruling, welcomed the 6th District ruling. “This decision reinforces many of the same points I have made in federal court here and in the 9th Circuit – that defining marriage is a states’ rights issue under the Tenth Amendment,” Otter said in a statement. Otter has continued to press the case, even forcefully speaking out against same-sex marriage in his election-night victory speech to GOP supporters late on Tuesday night. “I’m going to continue that fight as long as I possibly can,” he declared to cheers and applause. You can read my full story here at spokesman.com, and watch video of the governor’s election-night comments here.
Idaho is paying another $10,000 to outside attorneys for its continued appeals of the federal court decision overturning the state’s ban on same-sex marriage as unconstitutional. According to records obtained pursuant to a public records request, Gov. Butch Otter’s office has agreed to pay Washington, D.C. attorney Gene Schaerr $10,000 for filing a petition to the 9th Circuit Court of Appeals asking the court to have a larger, 11-judge panel re-hear Idaho’s case in an “en banc” review.
The flat fee of $10,000 is just for the petition; the agreement leaves open the possibility of Otter hiring Schaerr to do additional, related work. You can read it here.
That brings the state’s legal bill to challenge U.S. Magistrate Judge Candy Dale’s May 2014 decision overturning the state’s ban on same-sex marriage to $91,477 so far, including $86,920 for private attorneys hired to represent Otter. The figure also includes some costs incurred by Attorney General Lawrence Wasden’s office in the original appeal to the 9th Circuit, but Wasden used staff attorneys, so the expenses were small.
The state also could be on the hook for the plaintiffs’ attorney fees and costs for the original federal lawsuit, since the state lost; a pending motion asks the U.S. District Court to order Idaho to pay nearly half a million dollars. The state also could be asked to pay the plaintiffs’ fees and costs for the state’s unsuccessful appeals.
Lewiston has become the 9th Idaho city to pass an ordinance banning discrimination in housing, employment and public accommodations based on sexual orientation and gender identity/expression, the Lewiston Tribune reports today. The ordinance also bans discrimination based on familial status; it passed on a 5-2 vote of the Lewiston City Council, after an hour and a half of testimony from a standing-room-only crowd.
Lewiston Tribune reporter Joel Mills reports that the public testimony ran about 2-1 in favor of the ordinance, which includes exemptions for religious entities; his full report is online here. Lewiston joins Boise, Ketchum, Moscow, Coeur d’Alene, Pocatello, Idaho Falls, Victor and Sandpoint; Sandpoint was the first, passing its ordinance in December of 2011. Idaho lawmakers have refused to grant a hearing on a bill to add the words "sexual orientation" and "gender identity" to the Idaho Human Rights Act for nearly a decade, to ban discrimination on those bases; that's prompted cities to act on their own to pass ordinances protecting their residents.
Idaho’s legal bill for challenging a federal judge’s decision overturning the state’s ban on gay marriage has now topped $80,000, and that was before Gov. Butch Otter’s latest appeal to the 9th Circuit. In response to a public records request, Otter’s office has released an Oct. 7 agreement with Washington, D.C. attorney Gene Schaerr to pay a flat fee of $10,000 for two specific legal briefs: One appealing to the 9th Circuit Court of Appeals for a stay, to keep its decision legalizing same-sex marriage in Idaho from taking effect; and another appealing to the U.S. Supreme Court for the same thing.
Both were filed, and both were unsuccessful; same-sex marriage became legal in Idaho on Oct. 15.
Prior to that, Idaho had spent $71,477 to challenge U.S. Magistrate Judge Candy Dale’s May 2014 decision overturning the state’s ban on same-sex marriage, $66,920 of that for outside lawyers hired to represent Otter. The bills for the stay requests bumped the total up to $81,477, including $76,920 for private attorneys.
Since then, Otter has filed a petition with the 9th Circuit requesting an en banc review, a review by a larger, 11-judge panel, of that court’s earlier ruling by a three-judge panel. Otter also filed a motion for permission to exceed the 15-page limit on such petitions; the court granted the motion and allowed Schaerr to file a 35-page brief on behalf of Otter. The 9th Circuit has now asked the plaintiffs in Idaho’s same-sex marriage case to file a response to Otter’s petition within 21 days.
The governor’s office has not yet responded to requests for information on costs for that legal action. Earlier, in the state’s appeal to the 9th Circuit, Otter was represented by private attorney Monte Stewart, who charged the state $250 an hour. Stewart has withdrawn from representing Idaho; Otter replaced him with Schaerr.
Idaho Attorney General Lawrence Wasden also participated in the original appeal to the 9th Circuit, but did so using staff attorneys, so there were no outside legal bills. Wasden has announced he’s planning to file an additional appeal to the U.S. Supreme Court in the coming weeks.
The state also could be on the hook for the plaintiffs' attorney fees and costs for the original federal case, since the state lost; a pending motion asks the U.S. District Court to order Idaho to pay nearly half a million dollars.
Otter’s other late-night filing to 9th Circuit: Motion to file 35-page, rather than 15-page, en banc petition
Well, here’s the answer about the over-length petition Idaho Gov. Butch Otter filed to the 9th Circuit late last night: He also filed a motion, which was unopposed by the plaintiffs, for permission to file an over-length brief of up to 35 pages, though court rules limit en banc petitions to 15 pages; you can read the motion here. Otter’s reasoning? “The panel misunderstood, and for the most part ignored, Governor Otter’s fundamental argument regarding how the panel’s redefinition of an institution thousands of years old into a genderless union will negatively impact that institution, and with it Idaho and its citizens, especially children of heterosexuals. This needs to be carefully explained.”
It’s been a long day, but now, a bit after 10 p.m. Boise time, Gov. Butch Otter’s petition for an en banc review of the 9th Circuit Court of Appeals ruling in Idaho’s same-sex marriage case finally has been filed. You can read it here. Its conclusion says, “The panel’s decision appears to be judicial policymaking masquerading as law. But it is bad law, conflicting with numerous decisions of this Court, other circuits and the Supreme Court. And it is even worse policy, creating enormous risks to Idaho’s present and future children—including serious risks of increased fatherlessness, reduced parental financial and emotional support, increased crime, and greater psychological problems—with their attendant costs to Idaho and its citizens. For all these reasons, the panel decision merits en banc review.”
Otter had an outside attorney to help with the 83-page filing, Gene Schaerr of Washington, D.C. The argument itself, outside of all tables of content, attachments and so forth, runs 25 pages. Here’s the odd thing: The 9th Circuit’s rules about en banc petitions are very specific, according to its guide to practice for attorneys, which is posted on the 9th Circuit’s website here. The deadline is 14 days after the decision; because the decision was issued Oct. 7, today is the deadline. And, the practice guide says, on Page 79, “Length. A petition for rehearing is limited to 15 pages. Fed. R. App. P. 35(b)(2).”
Does that matter? Might Otter’s petition be disqualified because it exceeds the limit? I don’t know the answers to these questions and it’s too late to ask anyone. But I’ll be interested to find out in the morning.
A check of the 9th Circuit docket for Idaho’s same-sex marriage case doesn’t show Gov. Butch Otter’s petition for an en banc review yet, but it does show another filing: Attorney Monte Neil Stewart has withdrawn from representing Otter in the case. Stewart, who argued both Idaho’s and Nevada’s cases at the 9th Circuit, filed a controversial petition for rehearing in Nevada’s case last week claiming that the three-judge panel that heard both states’ cases was intentionally stacked with judges sympathetic to the plaintiffs. The charges, which question the integrity both of the judges who heard the case and the entire 9th Circuit administration for how it assigns judges to cases, raised eyebrows around the country and were highly unusual; the court hasn’t yet acted on Stewart’s petition.
When Stewart filed his petition, Otter’s office had no comment on it.
Otter says he’ll file petition for en banc review of 9th Circuit ruling in Idaho’s gay marriage case
Idaho Gov. Butch Otter announced today that he's filing a petition with the 9th Circuit U.S. Court of Appeals for an en banc re-hearing of Idaho's same-sex marriage case; you can read my full story here at spokesman.com. "I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society,” Otter said in a statement; click below for his full statement. He said his office will file the petition later today.
An en banc review at the 9th Circuit, because the circuit is so large, would mean that a larger 11-judge panel would re-hear the case, after a three-judge panel made the decision earlier. In smaller circuits, an en banc review is a rehearing by the full court. Otter and Idaho Attorney General Lawrence Wasden earlier requested that 9th Circuit assign a full 11-judge panel to hear Idaho's case in the first place, rather than a three-judge panel; that request was denied. Wasden is not joining with Otter in today's petition. However, his spokesman, Todd Dvorak, said today that Wasden does plan to file an appeal to the U.S. Supreme Court in the coming weeks.
As of the close of business today at 5 p.m., Ada County had set a record for marriage license issuance, issuing 45 licenses, all of them to same-sex couples. That's according to Chief Deputy County Clerk Phil McGrane, who said, "This is the most licenses Ada County has issued in a single day."
Here, in this AP photo, Guy Wordelman, left, marries James Wordelman outside the courthouse this morning, with Pastor Renee McCall officiating.
9th Circuit issues published opinion on legal reasons for lifting of stay; that now can be cited in other cases
The 9th Circuit Court of Appeals issued a published opinion today, detailing its legal reasoning for lifting a stay and putting into effect its order legalizing same-sex marriage in Idaho. “We decline to deny the plaintiffs their constitutional rights any longer,” the unanimous three-judge panel of the court wrote in the nine-page opinion. They also went through the arguments Gov. Butch Otter offered in earlier legal filings opposing the lifting of the stay, and rejected all of them. “Governor Otter can no longer meet the test for the grant or continuation of a stay,” the court wrote.
It also noted that the full U.S. Supreme Court also ruled against Otter’s bid for a continued stay to prevent same-sex marriages from starting in Idaho. “Because the Supreme Court has thus rejected the argument that a stay was necessary … we decline to second-guess that decision,” the court wrote. It noted that same-sex marriage is now legal 33 states plus the District of Columbia. “This figure includes Idaho and Alaska,” the court wrote.
The 9th Circuit judges also wrote that they nevertheless granted the state an additional opportunity to file an emergency stay request with the Supreme Court by making the lifting of the stay effective today, rather than yesterday, “even though we see no possible basis for a stay.” No additional stay was sought.
Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said, “We’ll analyze it and use that as part of our decision-making process going forward.”
Deborah Ferguson, attorney for the four couples who successfully sued to overturn Idaho’s ban on gay marriage, said, “It makes public their reasoning for lifting the stay, and so that’s, I think, very helpful. I’m very glad they did that.” She noted that as a published opinion, the court’s opinion now can be cited in other cases. You can read it here.