Latest from The Spokesman-Review
Idaho Supreme Court orders developer to pay part of state’s legal fees in North Idaho condemnation fight
The Idaho Supreme Court has ruled in favor of the state in a long-running eminent domain dispute with a developer who was trying to build a shopping center on Highway 95 north of Coeur d’Alene – and has even ordered the developer to pay some of the state’s legal fees in the battle. Justice Jim Jones wrote that in his view, the developer was “shooting for the moon” and seeking much more for 16 acres of its property that the state took for a new interchange than the land was worth. He and the rest of the court’s justices ruled that the appeal was “completely unreasonable and frivolous,” and therefore was one of the rare cases when a private party could be ordered to pay the state’s attorney fees in a condemnation case.
H.J. Grathol Co. had been trying to build a travel center, grocery store and hotel at the northeast corner of U.S. Highway 95 and Highway 54, when the Idaho Transportation Department took a chunk of its property for a new interchange through condemnation in 2010, as part of the Garwood to Sagle project to widen and improve Highway 95 from a surface road into a freeway. The state hired a private law firm, Holland and Hart, to represent it in the condemnation case, and ran up legal fees and costs of more than $1 million before the appeal to the state Supreme Court. Grathol lost at the District Court level, and the court declined to charge the firm for the state’s attorney fees, saying the firm’s arguments were “reasonably based in law and fact” and the case was not brought “frivolously.” The district court did, however, order Grathol to pay more than $25,000 of the state’s court costs.
Now, on appeal, the Idaho Supreme Court has determined that this is one of those “extreme and unlikely” cases where a private party should be ordered to pay the state’s legal fees, at least for the appeal portion of the case. The irony there: The state only paid H.J. Grathol $675,000 for the 16 acres it took. Depending on how much Holland and Hart charges the state for the appeal, the fee award could eat up some or all of that, and leave the developer actually out both money and land to the state. Here's a link to my full story at spokesman.com.
Police must get warrants before drawing blood from suspected drunken drivers who refuse to cooperate, the Idaho Supreme Court has decided in two Kootenai County cases. The opinions, including one issued yesterday, follow a national trend of courts limiting warrantless blood draws and suppressing evidence obtained from such samples, writes S-R reporter Scott Maben; you can read his full story here at spokesman.com.
“It is a big decision,” said Justin Curtis, a deputy state appellate public defender in Boise. “It’s going to affect a fair number of cases that are already in the pike.” The rulings effectively reverse the state Supreme Court’s position, which previously held that the implied consent law allows warrantless blood draws on drivers even against their will. The rulings in Idaho and other states follow a 2013 U.S. Supreme Court decision; since that ruling, police agencies in Idaho including the Idaho State Police have been getting warrants before drawing a suspected drunk driver’s blood without consent.
The Idaho Supreme Court has ruled that former Canyon County Prosecutor John Bujak - the current Libertarian candidate for governor - violated four of the Idaho State Bar's ethics rules between 2004 and 2011, the Idaho Press-Tribune reported today. The high court ordered a one-year suspension of Bujak's law license for the violations, but since he already had a 19-month interim suspension when the complaint was filed three years ago, the terms of that penalty already are satisfied and Bujak can continue to practice law.
Bujak told the newspaper the ruling was the "last chapter" in a long-running legal case in which he was charged with grand theft by unauthorized control; he gave up his law license pending the resolution of that case, and got it back after his acquittal. "It's been sitting at the Supreme Court since March, presumably under review — I don't know what took them so long review it," Bujak told Press-Tribune reporter John Funk. "It's just the case finally winding through the other leg of the process."
The original bar complaint was filed against Bujak in October of 2011, charging that he'd failed to properly deposit checks intended for a client's estate in 2008; and that he'd convinced an elderly client to name himself and his assistant as the beneficiaries to the client's will. Funk reported that another attorney later voided the will, and the client said Bujak convinced her that he and his assistant should be listed as beneficiaries for her protection, but that that could be changed later; he was acquitted of criminal charges in the case in January of 2013. The Press-Tribune's full report is online here; click below for an AP version.
The Boy Scouts of America has the authority to sell or swap Camp Easton on Lake Coeur d’Alene, the Idaho Supreme Court has ruled. The Inland Northwest Council of the Boy Scouts has no plans to do so, and in fact it plans to invest in upgrades at the longtime camp. But when the council was considering moving the camp across the lake in 2011 and 2012, a group called Camp Easton Forever along with two local Scouts, Daniel and Matthew Edwards, sued the council. The plaintiffs argued that the 85-year-old donation of land that established the popular camp on Gotham Bay prohibited the council from selling or trading the land. The council’s attorneys argued that the land deed was unambiguous and contains no restrictions on selling the property, and a District Court in 2012 agreed. The Supreme Court affirmed that decision on Friday.
Retired Justice Walters filling in as Idaho SupCourt Justice Warren Jones remains in hospital treatment in Utah
Idaho Supreme Court Justice Warren Jones is still being treated at a Utah hospital after taking ill June 6, just before the court was to hear oral arguments in Twin Falls, Idaho Statesman columnist Dan Popkey reports this morning; Jones, 70, plans to return to Boise July 25, but his return to duty on the court has not been set. In his absence, retired Justice Jesse Walters has been filling in for Jones. That’s meant Walters had to listen to audio recordings of arguments in five cases heard in Twin Falls just after Jones became ill, to catch up and help decide them.
Popkey reports that former Justice Wayne Kidwell also is filling in, sitting on a sixth case argued in Twin Falls last month on which he’s been assigned to write the opinion, and handling two cases scheduled for argument in August.
Walters, who is now assigned a total of 20 cases, including two scheduled for argument July 29 and a dozen to be heard in August, told Popkey he’s been working mostly from home and going to the court about six hours a day, three days a week. “It wasn’t what we were planning to do this summer, but I’m available to help out,” he said. If necessary, he said, “I’m prepared to fill in for the rest of the year.” The nature of Jones’ illness hasn’t been disclosed. Court administrator Patti Tobias told Popkey, “We all expect a full recovery and we expect him back on the court.”
Jones, a native of Montpelier, was appointed to the court by Gov. Butch Otter in 2007 and won election to a full six-year term in 2008. Popkey’s full report is online here.
Patti Tobias, administrative director of Idaho court for the past two decades, will be leaving in the fall for a new position with the National Center for State Courts in Denver. “It’s pretty exciting, although it’s really emotional to leave,” Tobias said. “They’re going to post the (Idaho) position and begin recruitment this week.”
Tobias will be with the state center’s court consulting division. “I’ll be able to work with all of the state courts across the nation,” she said, on everything from technological innovation to new problem-solving courts and other court improvement efforts.
Tobias has presided over a time of big changes in Idaho’s court system, including a technology upgrade now under way to eventually bring all state court filings and documents online and make them more widely accessible. “The Idaho courts are recognized nationwide for their innovation, for their service, for their leadership,” Tobias said, noting particular national attention has focused on Idaho’s problem-solving courts including mental health and domestic violence courts.
Tobias, who holds a master’s degree in judicial administration from the University of Denver College of Law, came to Idaho more than 20 years ago as a result of the Idaho courts’ national recruitment for her position; previously, she’d worked for 14 years in state and trial courts in Missouri. She’ll leave her Idaho position in late August to start her new job.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — The Idaho Supreme Court upheld a lower court's decision Tuesday ordering a Boise hospital to pay more than $52 million for violating a contract it had with an MRI company. The decision is the latest development in St. Alphonsus Regional Medical Center's lawsuit, involving one of the largest awards to come out of Idaho district courts.
The hospital had appealed the multimillion-dollar verdict returned in 2011. MRI Associates, which operates MRI Center of Idaho and MRI Mobile, first partnered with St. Alphonsus in 1985 in an attempt to make magnetic resonance imaging and other diagnostic tests more accessible. The partnership was supposed to last until 2015, but the hospital created its own outpatient MRI facility in 1998. Six years later, the hospital announced it was dissolving the partnership with MRI Associates to use its own facility. "In this case, the wrongful conduct was in the nature of usurping a partnership opportunity to open a facility in Meridian, which then competed against MRI Mobile," the justices wrote in the ruling.
Eventually, both sides filed suit. A jury awarded MRI Associates more than $63.5 million in 2007, saying it lost potential profits because of the breach in the contract. A judge later reduced the award to $36 million. Two years later, the Idaho Supreme Court sent the case back for a retrial, where a new jury awarded MRI Associates more than $52 million. "This case involved many years of litigation, including a prior favorable ruling by the Idaho Supreme Court," hospital spokesman Josh Schlaich said in a prepared statement. "We respect the work of the court, but are disappointed with this ruling." Meanwhile, the law firm representing MRI Associates released a statement praising the court's decision, touting it as a win in a "David-versus-Goliath legal battle" that pitted a small business against a multimillion-dollar medical center.
The very definition of fairness was hotly debated by two rivals for the Idaho Supreme Court tonight, as Justice Joel Horton and challenger Breck Seiniger faced off in a televised debate. Horton called Seiniger “a representative of special interests,” prompting Seiniger to retort, “I guess the special interests we’re talking about are the average, ordinary citizens like you people watching out there, who get hurt, who have a problem with the government, who have a property dispute – that’s who I represent.”
The taped debate, part of the “Idaho Debates” sponsored by the Idaho Press Club and the League of Women Voters, was broadcast statewide on Idaho Public Television tonight. Idaho’s primary election is May 20. In addition to primary races for partisan offices, the election includes the final decision in the nonpartisan Supreme Court race. You can read my full story here at spokesman.com.
The contested race for a seat on the Idaho Supreme Court this year has turned testy, with challenger Breck Seiniger raising an ethical issue about second-term Justice Joel Horton regarding a 2008 case. The justice, who’s rarely made headlines in his many years on the bench and has bipartisan support for his re-election bid, dismisses it as nothing but a personal attack. But a national judicial ethics expert says it's a legitimate question and in his view, the judge should have disqualified himself in the case.
“I think it’s a fair point for an opponent in an election to call out,” said Charles Geyh, a law professor at Indiana University and an expert on judicial disqualification and ethics for judges. “Is the idea that one time, six years ago, he had a lapse – should that get him out of a job? No, by itself, no.” But it’s among the factors that voters should consider, he said.
The case involves a very influential big Idaho corporation, Simplot Corp., that was sued by a group of farmers it had wronged. Justice Horton wrote the court’s opinion in the case; while it was pending, he named Simplot’s associate general counsel as his campaign treasurer. Horton contends the unanimous decision in the case already had been reached and there was no conflict; Seiniger calls the move “completely inappropriate.” You can read my full story here at spokesman.com.
Here's a news item from the Associated Press: BOISE, Idaho (AP) — The Idaho Supreme Court has upheld two life sentences given to a former death row inmate who killed his ex-wife and her boyfriend in 1999. The court ruled Friday against 51-year-old Dale Shackelford and his argument that he should have been given a different judge for his resentencing in 2011 and that some testimony shouldn't have been allowed. Shackelford was convicted of shooting Donna Fontaine and Fred Palahniuk to death in the northern Idaho town of Kendrick. He was sentenced to death. However, the U.S. Supreme Court later ruled that juries, not judges, must hand down death sentences. At a new sentencing hearing Shackelford received two fixed life sentences. Latah County Prosecutor Bill Thompson says he's pleased with the recent decision because Shackelford remains a threat to society.
A restaurant worker who fell into a deep fat fryer and was severely burned can't claim worker's compensation benefits for post-traumatic stress disorder, for which he sought treatment two years after the accident, the Idaho Supreme Court has ruled. Justice Warren Jones, writing for a unanimous court, wrote that the worker didn't prove that his psychological trauma was caused predominantly by the accident with the fryer, and noted that he'd had other stresses in his life as well. Click below for a full report from AP reporter John Miller.
A woman who has already been banned from filing frivolous lawsuits in several state and federal courts is challenging a new Idaho law designed to staunch so-called vexatious litigation, the AP reporters. Holli Lundahl Telford has already been designated a vexatious litigant by the states of Utah, California, Montana, Idaho's federal court, the 9th and 10th U.S. Circuit Courts of Appeals and the U.S. Supreme Court, according to court records. In 2011, a judge in eastern Idaho made the same call, and again, Telford is fighting the designation, appealing to the Idaho Supreme Court. Click below for a full report from AP reporter Rebecca Boone.
Originally posted at 11:02 a.m. today
A Coeur d’Alene man who contested his loss in a 2009 City Council election has lost his appeal to the Idaho Supreme Court. The court today issued its opinion in Jim Brannon’s legal fight over the narrow election loss to Councilor Mike Kennedy. The justices ruled that Kootenai County 1st District Judge Charles Hosack properly denied Brannon’s motion for a new trial. Hosack concluded in his October 2010 decision that there was no error in the counting of votes, as Brannon had argued, nor misconduct on the part of county elections workers that would change the result of the election/Scott Maben, SR. More here.
Supreme Court conclusion: "We find that the district court did not err when it denied Brannon’s motion to disqualify. We also hold that the UOCAVA absentee voter requirements did not apply to municipal elections held prior to 2011, but that there is insufficient evidence in the record to conclude that the five disputed votes in this case were illegal. We hold that the district court did not err when it refused to order non-city residents to testify about their residency at trial." Idaho Supeme Court ruling here.
Question: How will Brannon's followers spin this one?
In this Oct. 15,2010. SR file photo, Dave Leptich, of Idaho Fish and Game discussed improvements of the shooting range at Farragut State Park. (SR file photo: Kathy Plonka)
In a victory for sport shooters, the Idaho Supreme Court today lifted an injunction that has kept the Farragut State Park shooting range closed for almost six years. The decision will permit the Idaho Department of Fish and Game to reopen the Farragut range to 500 shooters per year, and possibly more than that if a district court judge determines noise and safety concerns have been addressed. The Supreme Court also reversed a district judge’s finding that the Idaho Outdoor Sport Shooting Range is unconstitutional/Scott Maben, SR. More here.
The Idaho Supreme Court is deciding just how much of each death penalty case they must consider under Idaho's mandatory review law, and the ruling could dramatically change the landscape of capital punishment in Idaho, reports AP reporter Rebecca Boone. The issue came up in an eastern Idaho murder case; click below for Boone's full report.
At the Lewiston Tribune, opinionator Marty Trillhaase offers weekly Cheers & Jeers column:
CHEERS … to the Idaho Supreme Court. First it told scofflaw Hart to pay the $53,000 in back taxes he owes the state. That says nothing of the nearly $500,000 Hart owes the feds. Next, the Supreme Court said he wasn't entitled to preferential treatment. Now it has told him to cough up another $10,000 for wasting everybody's time with such a frivolous claim. The attorney general's office sought the payment to cover what it cost to take Hart into court. Just one question for the Idaho justices:What makes you think he's going to pay?/Marty Trillhaase, Lewiston Tribune. Full Cheers & Jeers column here.
Question: Marty Trillhaase brings up a good point. When does state Rep. Phil Hart have to begin paying back overdue taxes? Is the Supreme Court ruling merely a suggestion? Or does it have teeth?
The 2009 Coeur d'Alene city election lawsuit went before the Idaho Supreme Court Wednesday, with the high court saying it will consider whether to uphold or reverse a previous ruling that solidified a City Council incumbent's narrow victory over his challenger. The five-member bench, four of which were present at First District Court, didn't give a timetable on when a decision would be reached, meaning it could be weeks or months before a written ruling is issued on the three-year old case. "The issue here isn't vote totals, and who won and who lost," said Starr Kelso, attorney for then-Seat 2 City Council challenger Jim Brannon, who filed the lawsuit. "It's the sanctity of the" election process/Tom Hasslinger, Coeur d'Alene Press. More here.
Question: Do you consider Brannon to be a crusader fighting for justice? Or a sore loser?
The Idaho Supreme Court, sitting in Coeur d'Alene today, heard arguments on a challenge to the results of a Coeur d'Alene City Council election in 2009, in which Mike Kennedy edged Jim Brannon by five votes, a number that fell to three after a District Court challenge - but Kennedy remained the winner. Starr Kelso arged for Brannon; Kennedy was represented by Michael Haman and Scott Reed. You can read our full report here from S-R reporter Scott Maben.
Here's a news item from the Associated Press: BOISE, Idaho (AP) ― Booted off their grazing land, Idaho sheep ranchers have now been rebuffed in state Supreme Court after justices ruled against them on Friday. The Idaho Wool Growers Association and several ranchers had brought suit against Idaho, claiming the state failed to make good on promises to protect them against the loss of their Payette National Forest grazing allotments. The allotments were closed to protect wild bighorn sheep from diseases spread by their domesticated cousins. The ranchers previously lost in 3rd District Court, but appealed on grounds the state was responsible for making good their losses. Justices upheld the lower court ruling, determining that a 1997 letter from the Idaho Department of Fish and Game contained no promise to protect ranchers. The court also awarded attorneys' fees to Fish and Game.
Nearly three years removed from the election, and two years since its court ruling, the 2009 city election lawsuit will go before the Idaho Supreme Court on Wednesday. It's scheduled to go before the high court's five-member body at 11:10 a.m. at the Kootenai County Courthouse. The election challenge suit, filed by then-Seat 2 City Council challenger Jim Brannon (pictured), claimed that inadmissible ballots had led to incumbent Mike Kennedy's five-vote victory. Brannon filed the suit shortly after the election day loss. But litigation with the highly-publicized suit stretched over a year, ending when 1st District Judge Charles Hosack upheld the election following a six-day trial in September 2010. Part of the ruling tossed out four illegal votes (one of which was for Brannon), trimming Kennedy's victory to three votes/Tom Hasslinger, Coeur d'Alene Press. More here.
The Idaho Supreme Court has rejected an appeal from frequent political candidate and former elk rancher Rex Rammell in his lawsuit against the state over the shooting of his escaped domestic elk. In the unanimous ruling authored by Justice Jim Jones, the court held that "the plain language" of Idaho state law "supports defendants' argument that the statute provides authorization for the state to legally take escaped domestice cervidae." It also held, "The Rammells have pursued this appeal without a reasonable basis in law or fact," and awarded attorney fees and costs to the state. You can read the decision here. Click below for a full report from AP reporter John Miller.
The Idaho Supreme Court is hearing oral arguments this morning in Rex Rammell's appeal over the shooting of his escaped domestic elk; you can listen live here. Rammell sued the state, then-Gov. Jim Risch and Idaho Fish & Game over the incident. Rammell's lawyer just told the justices that he doesn't believe Idaho law permits "the destruction of domestic elk simply for being out of the confines of the ranch for seven days."
"Doesn't Fish & Game have the authority to issue emergency depredation hunts when situations arise?" asked Justice Jim Jones. Rammell's attorney, Patrick Furey, said there was no evidence the elk were diseased or a threat to the state's wild elk herds. "There was nothing at all about these elk to distinguish them as escapees from a neighbor's cattle herd that got out. … This wasn't a case of velociraptors escaping from Jurassic Park."
"You can't just proclaim to go destroy private property, you've got to have a reason," Furey told the justices. Justice Daniel Eismann said the state law doesn't talk about disease. "The statute talks about … domestic cervidae that have been escaped for more than seven days." Justice Joel Horton noted that the state law extends immunity both to licensed hunters and to state agencies for shooting escaped domestic elk that are in the wild more than seven days. Furey said he thought that law "was intended only to immunize the hunter, and not to authorize what was done here."
The state's attorney, Mike Kelly, told the justices the issue is narrowly defined: Interpretation of the state law. "Gov. Risch had the authority to issue that executive order," he said. "Gov. Risch didn't issue that order until 26 days after the escape."
Idaho's Supreme Court will begin live video streaming all its oral arguments from its main Boise courtroom next week, in a joint project of the court and Idaho Public Television, which pulled it together despite a dearth of state funding. Though Washington has long televised its Supreme Court arguments, fewer than a third of states provide such video access; it's a big step for Idaho, expanding the service that now live-streams all legislative proceedings and some executive-branch meetings on the Internet so folks anywhere in the far-flung state can watch.
"There's a definite benefit to the citizens," said Steve Kenyon, clerk of the Idaho Supreme Court. Among those likely to tune in to the webcasts: Parties in appeals to the state Supreme Court, who now won't have to drive to Boise to see the arguments before the justices; lawyers who are litigating similar issues in district courts around the state and can see how those issues play out live at the state's highest court; reporters covering cases that originated in far-off corners of the state; and citizens interested in seeing the highest level of the judicial branch of state government at work.
"It's giving people around the state the ability to stay in contact with their governmental process, and we're just proud as punch to be involved with it," said Peter Morrill, general manager of Idaho Public Television. Adding the high court's arguments will expand IPTV's "Legislature Live" service, which already has been streaming numerous executive-branch proceedings in addition to legislative action; you can read my full story here at spokesman.com, along with links to the new stream.
Owners of cabins at Priest Lake, like this 1930s one that retired school teachers Jim and Myrna Brown spent years renovating in the hopes that it could be a family legacy, are facing increased uncertainty after the Idaho Supreme Court decision overturning a state law that protected state-owned cabin site leases from conflict bidding. The ruling affects 354 cottage sites at Priest Lake and 167 at Payette Lake. S-R reporter Sara McMullen takes a look at the issues here; cabin owners, who own their cabins but not the state-owned ground underneath, already are in the midst of working with the state in the Land Board's effort to "unify" ownership of cabin sites, through land exchanges and other steps.
The Idaho Supreme Court ruled that leases of state-owned cabin sites, like those on Payette and Priest lakes, are subject to competitive conflict auctions when the leases come up, striking down a state law that exempted the cottage sites. You can read the court's full decision here, and click below for a full report from AP reporter John Miller.
The Idaho Supreme Court, without comment, has dismissed tax-protesting Idaho state Rep. Phil Hart's request to reconsider his state income tax appeal, in which he argued the court should have given more consideration to his legislative privilege argument. In a one-page ruling, the Supreme Court declared, "After due consideration, it is hereby ordered that Appellant's petition for rehearing be, and hereby is, denied."
Hart appealed an order to pay more than $53,000 in back state income taxes, penalties and interest, but filed his appeal months after the 91-day appeal period had expired. He argued that because an Idaho legislative session fell just after the appeal period, his status as a lawmaker should entitle him to more time to file. The Idaho Supreme Court strongly disagreed, writing in its unanimous decision in April, “In this instance, Hart is just a taxpayer, with no greater privilege than his constituents.” You can read my full story here at spokesman.com.
The Idaho Supreme Court has upheld a death warrant for Richard Leavitt, who is scheduled to be executed June 12 for the 1984 murder of Danette Elg. In a 10-page opinion issued this afternoon, the justices both affirmed the death warrant, and affirmed a district court decision denying a motion to quash that warrant. Leavitt's attorneys charged that the death warrant was improperly issued, and came as Leavitt still had other appeals pending in federal court. "It is important to note that Leavitt received due process prior to the signing of the death warrant," the justices wrote, in a unanimous decision authored by Justice Warren Jones. "He received due process from the numerous appeals, petitions for post-conviction relief, and habeas corpus relief that he filed in this Court and in federal court over the last twenty-seven years. The issuance of the death warrant is a natural consequence from numerous courts affirming his guilt and sentence of death."
You can read the Idaho Supreme Court's decision here. It was the fourth bid to stay his execution that Leavitt has lost in the past week; arguments are scheduled on another Thursday at the 9th Circuit U.S. Court of Appeals.
In arguments at the Idaho Supreme Court today, defense attorney David Nevin contended there are questions about condemned murderer Richard Leavitt's guilt that have yet to be explored in court. But Deputy Attorney General LaMont Anderson told the justices, "We've been at this case now for 28 years."
Justices peppered Nevin with questions about whether his interpretation of court rules would allow endless appeals to head off any execution. He countered, "We are not in the business of frivolous appeals here. There's a serious and significant issue as to guilt pending in the federal court." Justice Jim Jones, a former Idaho attorney general, recused himself from the case; sitting in as a justice pro tem was retired Chief Justice Gerald Schroeder.
Late Thursday, the justices dismissed a major filing by Leavitt's attorneys, a petition to vacate the death warrant and conduct a new hearing. Then on Friday, U.S. District Judge Lynn Winmill dismissed a bid to stay the execution on the basis that a March U.S. Supreme Court decision cleared the way for consideration of Leavitt's earlier claim of ineffective counsel, with regard to testing of blood from the crime scene. Nevin immediately appealed that decision to the 9th Circuit U.S. Court of Appeals, which will hear arguments on it Thursday.
Today, U.S. District Judge Edward Lodge dismissed the portion of a lawsuit challenging Idaho's lethal-injection execution procedure that involves Leavitt, declining to issue a stay of execution, but leaving the case active for three other Death Row inmates. Leavitt is scheduled to die June 12 for the 1984 murder and mutilation of Danette Elg in eastern Idaho; you can read my full story here at spokesman.com on how he's lost three bids to stay his execution in the past five days.
U.S. District Judge Edward Lodge has dismissed the portion of a lawsuit challenging Idaho's lethal-injection execution procedure that involves Richard Leavitt, who is scheduled to be executed on June 12. Lodge wrote in his 55-page decision and order today that he would allow more time for briefing in the case of the three other condemned prisoners who sued, Thomas Creech, James Hairston and Gene Stuart, but expedited Leavitt's portion because of his pending execution date.
The gist of the lawsuit challenged the state's three-drug lethal injection procedure, charging that if the earlier drug to inflict unconsciousness failed, the condemned inmate would suffer severe and excruciating pain when the later, lethal drug took effect. Since then, Idaho has announced it will use a single-drug lethal injection procedure - exactly what Leavitt sought in the lawsuit - so those points were ruled moot. Leavitt also raised several other issues, but the judge found them not sufficient to warrant a stay of execution. Among them: He challenged the experience level of the people assigned to administer the lethal drugs through IVs, but state prison officials said the least-experienced member of the team has 15 years of relevant medical experience.
On Friday, U.S. District Judge Lynn Winmill dismissed another bid from Leavitt to stay his execution on the basis of ineffective assistance of counsel, tied to a recent U.S. Supreme Court decision; Leavitt's attorney, David Nevin, immediately filed an appeal of that decision to the 9th Circuit U.S. Court of Appeals. This afternoon, the Idaho Supreme Court will hear arguments on remaining issues raised in state court by Leavitt's defense as his execution date approaches.
Tax-protesting Idaho state Rep. Phil Hart is asking the Idaho Supreme Court to reconsider its dismissal of his state income tax appeal, saying the court should have given more consideration to his legislative privilege argument. Hart appealed an order to pay more than $53,000 in back state income taxes, penalties and interest, but filed his appeal months after the 91-day appeal period had expired. He argued that because an Idaho legislative session fell just after the appeal period, his status as a lawmaker should entitle him to more time to file.
The Idaho Supreme Court strongly disagreed, writing in its unanimous decision in April, “In this instance, Hart is just a taxpayer, with no greater privilege than his constituents.” Hart's bid for reconsideration argues that the framers of Idaho's Constitution "were intimately aware that their full attention, without any distraction of any nature, was required in order for them, and future legislators, to accomplish their work on behalf of the people." You can read my full story here at spokesman.com.