Latest from The Spokesman-Review
According to the lawsuit, filed Tuesday in federal court in Delaware, Haggen said Albertsons started engaging in these competitive efforts after it sold 146 grocery stores to Haggen. Albertsons and Safeway were forced by the Federal Trade Commission to sell the stores as part of a merger. Among the stores are 83 in California, mostly in the south. The former Safeway store in Liberty Lake has now converted to Haggen as part of that acquisition.
Albertsons didn’t immediately respond to a request for comment.
The relationship between Haggen and Albertsons was already spoiling before this lawsuit.
Where do you do your grocery shopping?
Idaho Supreme Court ruling on statute of limitations clears way for lawsuit against Boy Scouts, church
A unanimous Idaho Supreme Court has cleared the way for a lawsuit to proceed against the Boy Scouts of America and the LDS Church by a group of men who are suing for fraud, saying they were sexually abused by scout leaders as children, and the Boy Scouts and the church knew the children were in danger from the leaders, and not only failed to disclose that, but assured the boys the leader in question was a “great guy,” a “wonderful man,” or a “friend to whom you can always turn for advice.”
The lawsuit, charging “constructive fraud,” is pending in federal court. But after the Boy Scouts and the church argued that it should be barred by an Idaho statute of limitations, U.S. District Judge B. Lynn Winmill referred that question to the Idaho Supreme Court for a ruling on which civil statute of limitations should apply.
Idaho has for three: One for personal injury claims, at two years; one for fraud, at three years from the time of discovering the fraud; and a “catch-all” provision, at four years. The Boy Scouts and church argued the case should be treated as a personal injury claim, but Winmill rejected that argument. “Plaintiffs are not complaining that the Boy Scouts and the LDS Church sexually abused them; they are complaining that these institutions deceived them by telling them to trust their Scoutmasters and, at the same time, not telling them about the dangers of pedophilic Scoutmasters. So in that sense, plaintiffs are not pursuing personal-injury claims; they are pursuing fraud claims,” he ruled.
Idaho Supreme Court Justice Roger Burdick, in a unanimous ruling, wrote that the question of whether the case involved a personal-injury claim was not before the state court; just the question of which was the appropriate statute of limitations for a constructive fraud case. And he found that previous Idaho case law dictates that it’s the fraud one, three years from discovery of the fraud. “Constructive fraud” is a type of fraud that doesn’t require proving malicious intent – just that the fraud involved a breach of duty where a “relation of trust and confidence” exists.
An attorney for the former scouts told the Associated Press the lawsuit would have been over if the Supreme Court had chosen one of the other statutes of limitations; you can read the full Idaho Supreme Court ruling here, and AP reporter Kimberlee Kruesi has a full report here.
Big news out of federal court in Idaho today: Ag-gag law unconstitutional; state must pay $223K more in gay marriage case
Big news out of the federal courts in Idaho today: A federal judge has ruled unconstitutional Idaho’s “ag-gag” law, which outlawed surreptitious videotaping at agricultural operations, as a violation of the First Amendment. It’s the first court ruling on an “ag-gag” law; eight states have passed them. Idaho lawmakers acted after an animal rights group filmed cows being abused at a southern Idaho dairy.
Also today, U.S. Magistrate Judge Candy Dale ordered the state of Idaho to pay an additional quarter-million dollars in attorney fees and costs to the four couples who successfully sued to overturn Idaho’s ban on same-sex marriage. The couples’ attorneys had sought $304,206 in fees and costs on appeal; the state objected, and the court lowered the amount to $223,191. That’s on top of the $401,662 the state already had to pay the plaintiffs’ attorneys for the U.S. District Court portion of the case, before Idaho appealed it unsuccessfully to the 9th Circuit U.S. Court of Appeals and the U.S. Supreme Court, and the $55,000 the state spent on outside attorneys in the district court portion of the case hired by Gov. Butch Otter. You can read the judge’s ruling here.
Inmates at a prison near Boise were frequently housed in so-called "dry cells" without running water or mattresses except for a handful of days when a court-appointed examiner visited the facility, according to documents. The AP reports that the records detailing the use of the dry cells were presented to U.S. District Court Judge David Carter on Thursday during a contempt of court hearing in a long-running lawsuit over prison health care.
Inmates at the Idaho State Correctional Institution have asked the judge to sanction the state, saying officials misled the court-appointed examiner, and therefore, the court. They contend prison officials tampered with medical records, hid problem inmates and otherwise deceived the examiner during his visits to the prison in 2011 and 2012. AP reporter Rebecca Boone has a full report here.
Here’s a new item from the Associated Press: BOISE, Idaho (AP) — Attorneys representing Idaho inmates in a class action lawsuit over prison health care told a federal judge Wednesday that prison officials intentionally misled a court-appointed examiner and the department should be punished by the court. But attorneys for the state denied the inmates' claims and countered that the allegations are based on incomplete evidence that has been taken out of context. Elijah Watkins, the attorney for the inmates, told U.S. District Judge David Carter on Tuesday that the case ultimately will come down to credibility. He asked the judge to consider which side has a reason to tell the truth, and which side has an incentive to lie. The inmates at the Idaho State Correctional Institution have asked U.S. District Judge David Carter to hold the Idaho Department of Correction in contempt of court or take other steps to punish the department. The hearing is expected to last two days.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — Inmates at an Idaho prison are asking a federal judge to sanction the state because they believe prison officials deliberately misled a court-appointed examiner on prison health care by tampering with medical records and hiding problem inmates. The Idaho Department of Correction, meanwhile, contends the inmates' claims are without merit and little more than exaggerations based on unsubstantiated hearsay. It's the latest tangle in the three-decades-old lawsuit over prison conditions at the Idaho State Correctional Institution. Both sides will make their claims to a federal judge during a two-day hearing next week. The hearing starts on Wednesday.
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.
A discrimination case against the Idaho State Police for targeting a driver for a marijuana search because his license plates were from a state that has legalized the drug has been dismissed at the request of both sides, after it ran into numerous legal hurdles. That means the court won’t weigh in on license-plate profiling in this case. But a legal expert says Darien Roseen’s lawsuit, the release of the state trooper’s dash-cam video under the Idaho Public Records Law, and the subsequent national attention it drew helped shine a light on the practice that may cause law enforcement agencies to take more care, and stick to “more traditional probable cause or observed infraction findings.”
David Leroy, former Idaho attorney general and now a Boise defense attorney, said, “The lawsuit may have served its purpose without going to conclusion.”
Roseen, then a 69-year-old retired Weyerhaeuser executive who was driving from his daughter’s baby shower in Washington to his second home in Colorado, was followed by an ISP trooper within a mile after he crossed the Idaho border on I-84 from Oregon on a snowy day in January of 2013; he had Colorado license plates. When Roseen pulled into the “Welcome to Idaho” rest area, Trooper Justin Klitch followed him and insisted he must have marijuana in his vehicle. Roseen was detained and his vehicle searched for hours before he was allowed to go; nothing illegal was found.
You can read my full story here at spokesman.com, and also find links to a clip from the video. Unlike Idaho, Washington, Colorado and Oregon all have legalized marijuana. Plus, numerous states surrounding Idaho permit the use of medical marijuana, which Idaho strictly forbids.
After the lawsuit was filed, a Spokane man told the Spokesman-Review he endured a similar detention at the same rest stop when he was driving with Washington license plates, with an ISP trooper demanding to search his car for marijuana. He refused, and eventually was allowed to leave. Roseen’s Boise lawyer, Eric Swartz, said he received numerous calls and emails from others with similar stories. But he was unavailable for comment Wednesday, after his client and the state both agreed to drop the case, with each side bearing its own costs and attorney fees.
The state hired a private law firm to handle the case and had paid it more than $50,000 as of May 15, according to records obtained under the Idaho Public Records Law. If Roseen continued his case but lost, he could have been ordered to pay the state's legal fees and costs as well as his own.
“It does point out that both civil and criminal litigation against the state or other police departments is typically conducted at considerable expense to the private parties who are bringing or defending that litigation,” Leroy said. “And the price of justice or defending oneself from injustice can be so high that sometimes the best interests of society are not vigorously prosecuted.”
Idaho officials have filed court documents to intervene in a federal lawsuit against the U.S. Forest Service brought by a northern Idaho couple and an environmental group, the AP reports; the state Board of Land Commissioners and Idaho Department of Lands made the filing in U.S. District Court.
Idaho officials contend the state has a substantial interest to intervene because the lawsuit seeks to block a road that's the only access to a salvage timber project on state land, writes AP reporter Keith Ridler. Idaho officials say the wildfire-damaged trees will lose value and are prone to insect infestation. The state Department of Lands also announced the previously canceled timber sale for the area has been rescheduled for Friday in Kamiah.
"We are confident that the eventual timber sale purchaser has the right of access to the state parcel without the need for Forest Service approval," said Tom Schultz, state lands director. Laird Lucas, an attorney at Advocates for the West who is representing Idaho Rivers United, said Wednesday that he's preparing paperwork seeking an injunction to prevent the use of the road until the federal court rules on the initial lawsuit. You can read Ridler’s full report here.
Despite five years of warnings, Idaho has continued to violate the U.S. and Idaho constitutions by failing to provide poor people charged with crimes with lawyers who can adequately defend them, a class-action lawsuit filed today charges. Instead, the state has responded by creating a series of “virtually powerless committees,” and enacting minimal law changes in 2014 that, the lawsuit says, not only didn’t go far enough to fix the problems, but aren’t even being followed.
Among them: The 2014 legislation banned “fixed-fee” contracts with public defenders, in which they’re paid a set amount regardless of how many clients they represent or how complicated the cases are. That provides them an incentive to spend as little time as possible on each case, particularly if they also have paying clients, the lawsuit says. Yet, 19 Idaho counties still use fixed-fee contracts. You can read the full complaint here.
Idaho established a public defense subcommittee of its Criminal Justice Commission in 2010 to examine the problem after an audit pointed to serious deficiencies. It set up a special legislative committee in 2013. That panel then established “yet another commission to make recommendations to the legislature,” the lawsuit says. “Astoundingly, the state failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system. Because the executive and legislative branches refuse to take the necessary actions to fix Idaho’s public-defense system, it falls on this Court.”
The 2014 legislation set up a state Public Defense Commission, which among other things, was to propose rules and standards for public defenders statewide by January of 2015; it hasn’t done so, according to the lawsuit.
“State officials themselves have recognized the current constitutional crisis regarding indigent services in Idaho,” says the lawsuit, filed in state court by the American Civil Liberties Union of Idaho, the national ACLU’s Criminal Law Reform Project and Hogan Lovells, an international law firm. “In August 2013, the Chief Justice of the Idaho Supreme Court noted that ‘our system for the defense of indigents, as required by Idaho’s constitution and laws, is broken.’ And Gov. Otter acknowledged in his 2015 State of the State address that, despite the 2014 amendments to Idaho’s public defense statutes, ‘our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster.’”
The 2014 legislation also directed Idaho’s 44 counties to either establish an office of public defender, partner with other counties to do so, or establish contracts that don’t rely on fixed fees. Seven now have such offices, while two have partnered in a joint office. Thirty-four still contract the services out, with 19 of those under fixed-fee contracts, the lawsuit says. And one county has no arrangement, just appointing lawyers on an ad-hoc basis.
Repeated surveys and studies have found that caseloads are so high for Idaho public defenders that many poor defendants can’t reach their attorneys, the lawsuit charges, no matter how hard they try, and barely get to speak to them before they appear in court; among the named plaintiffs, one called his public defender more than 50 times from jail without reaching him. Plus, the lawsuit says only five of the 44 counties provide public defenders at defendants’ initial appearances, when pleas are taken and bail set – even though Idaho law specifically requires legal representation at initial appearances. As a result, several of the named plaintiffs spent months in jail after bail was set that was too high for them to afford, and they had no idea how to contest it.
The lawsuit, filed in 4th District Court in Ada County, was filed against Gov. Butch Otter and the seven members of the Idaho State Public Defense Commission, including two state lawmakers, a judge, and the state appellate public defender. Otter’s office had no comment; neither did Attorney General Lawrence Wasden's office.
A group of 10 eastern Idaho potato growers and a shipper have filed a lawsuit seeking to end a quarantine and field testing imposed by state and federal authorities after the discovery of a microscopic pest that led some countries to ban Idaho spuds, the AP reports. The lawsuit names both the U.S. Department of Agriculture and the Idaho Department of Agriculture.
The discovery of the pale cyst nematode in Bingham and Bonneville counties in 2006 was the first detection of the pest in the United States, and authorities have been trying to eradicate it ever since; the land where it was discovered, a tiny fraction of Idaho’s potato-growing acreage, is out of the potato-growing business. But the discovery has prompted some to shun Idaho potatoes in general; Japan still won’t allow their import. AP reporter Keith Ridler has a full report here.
Here’s a news item from the Associated Press: NAMPA, Idaho (AP) — A former Idaho inmate and his girlfriend have filed a federal lawsuit against the Idaho Department of Corrections, seeking $50 million in damages because they claim correction staffers retaliated against them. According to the Idaho Press-Tribune (http://bit.ly/1zdnUHO), a newspaper in Nampa, Renee McKenzie and Lance Wood filed the complaint last month. The case arose after McKenzie, a paralegal and the former wife of Republican Sen. Curt McKenzie, was appointed by a federal court to help Wood in a separate lawsuit against the state. After the pair began a romantic relationship, the judge pulled McKenzie from Wood's case. The couple claims correction staffers wrongly harassed them and barred them from meeting because of their efforts in the other lawsuit. A department spokesman declined to comment. Wood is serving a life sentence for his role in the 1988 kidnapping and torture slaying of a gay man in Utah. He is currently held in an Oregon prison.
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.
An Atlanta bar has dropped its lawsuit against the controversial (and closed) Spokane Downtown Daiquiri Factory, as the shuttered business fights its eviction in Washington's appellate courts.
Kechia Matadin, owner of "The Daiquiri Factory" in Atlanta, sued Spokane bar owner Jamie Pendleton last May for alleged copyright infringement following a national controversy over one of Pendleton's drink names. A cocktail called "Date Grape Kool-Aid" drew local and national protests over its connotations to sexual violence, and it was eventually changed before the bar shuttered in June following a court-ordered eviction sought by the property owner.
Matadin's attorney asked to be removed from the federal case in January. This week, U.S. District Court Judge Lonny Suko dismissed the case under federal court rules.
Matadin wasn't the only one miffed by the Date Grape Kool-Aid connotation. Gonzaga University also sued Pendleton, alleging illegal use of its trademarked mascot and logos in bar promotions. Gonzaga won a permanent restraining order against the bar from future use of its trademarks in a ruling issued earlier this year.
Meanwhile, Pendleton continues to fight to move back into his location on Wall Street. Briefs have been filed in the Washington Court of Appeals asking that a Spokane County judge's eviction order be overturned. Pendleton argues the building's owner, Delaware-based real estate agent FPA Crescent, did not provide the legally required notice that his rent was overdue before moving to evict him. The landlord says it demanded maintenance charges that weren't paid, so they acted within their legal authority to boot the business.
No argument date has been set in the case. The former site of The Daiquiri Factory remains vacant and is listed as available for rent. The business' neighbor, Madeline's, moved to a new location on Main Street earlier this year. Its former home is also vacant and available for rent.
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.
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.
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.
Idaho has joined a 17-state legal challenge to President Obama's executive action on immigration, led by Texas Gov.-elect and current Attorney General Greg Abbott. “I joined this suit to strongly express my objections to this unconstitutional and misguided policy and its unilateral implementation,” Gov. Butch Otter said in a statement. “There is no question that the nation’s immigration system is broken and badly needs an overhaul. But the solution should honor the constitutional separation of powers, which dictates a broad-based collaborative process that includes Congress. It should not be implemented by executive fiat.”
Idaho Attorney General Lawrence Wasden issued this statement:
“Quite simply the lawsuit Idaho joined today is about the rule of law and respecting the separation of powers spelled out in the U.S. Constitution. The President’s action overrides our system of checks and balances. A president just can’t on his own authorize that a federal law be ignored and replace it with an Executive Order. The approach being taken today by my office is two pronged. I have also signed a letter being circulated among my fellow Attorneys General demanding that Congress step up now, do its job and fix the immigration problems vexing Idaho and the rest of the nation.”
Click below for a full report on the legal challenge from the Associated Press in Austin, Texas.
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.
The state’s legal bills for defending its now-voided contract for the Idaho Education Network high school broadband service is climbing toward $1 million; you can read my full story here at spokesman.com. The State Department of Administration, in response to a request from The Spokesman-Review, reported last night that it's paid $605,070.73 in legal fees to date for the case, in which private attorney Merlyn Clark of Hawley Troxell is representing the state. “There are additional legal fees paid by the Attorney General’s office that are not included in this number,” IEN spokeswoman Camille Wells said in an email.
The department has been paying all the legal bills since fiscal year 2012, but in 2010 and 2011, the Idaho Attorney General’s office paid 75 percent and the state’s risk management bureau paid 25 percent. The AG’s office paid $269,704 during that time period, with the risk management share coming in at $89,901.33; but Wells clarified late this afternoon that the risk management share was included in the Admin Department amount. So all told, that brings the total cost to taxpayers to date to $874,775.
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.
Seven more people have come forward to say they were sexually abused by staffers at a state-run juvenile detention center in southwestern Idaho, the AP reports today. The new allegations were detailed in a tort claim filed with the state late Tuesday afternoon, and bring the number of former detainees at the Idaho Department of Juvenile Correction detention center in Nampa alleging sexual abuse there to at least 10. Click below for a full report from AP reporter Rebecca Boone.
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.