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Seventy-four-year-old Navy veteran Madelynn Lee Taylor won her legal fight in federal court late Thursday, winning a final judgment and order requiring the Idaho State Veterans Cemetery to allow her remains to be co-mingled with those of her wife, Jean Mixner, when she dies. The cemetery initially refused to allow Mixner’s ashes to be buried there as the spouse of a military member, citing Idaho’s then-ban on same-sex marriage. Taylor filed suit in federal court. After courts overturned Idaho’s ban last October, the cemetery agreed to allow Mixner’s remains to be interred.
Taylor then asked the state to join her in requesting a final judgment in her case, but the state refused, instead filing a motion to dismiss the case as moot. Taylor argued there was no guarantee that the state’s policies might not change again, resulting in her remains not being allowed to be co-mingled with her spouse’s when she dies. She noted that the state made multiple attempts to appeal the legal ruling on same-sex marriage that allowed Mixner’s remains to be interred. In a ruling late Thursday, U.S. Magistrate Ron Bush ruled that Taylor “is entitled to have the assurance that there is a court order in place requiring that what she has a right to have happen if she were to pass away today, will happen when she does pass away.” He wrote, “That is the relief she seeks, and equally importantly, her right.”
He noted that now, the U.S. Supreme Court has legalized same-sex marriage in all 50 states, and has rejected Idaho’s final appeal on the issue.
Deborah Ferguson, Taylor’s attorney, said, “We wanted to make sure we had this secured for her during her lifetime.” Taylor is suffering from serious health problems; Ferguson said she spoke with her late Thursday. “She’s thrilled,” she said. “She had recent surgery she’s recovering from, and is very excited to hear about the decision.” You can read the full ruling 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.
Today's U.S. Supreme Court ruling that same-sex marriage is legal nationwide may have big impacts for some states, but won't change things in Washington or Idaho.
Same-sex marriage has been legal in Washington since 2012, when voters upheld a law passed by the Legislature but challenged by some conservative groups. Washington joined the case decided today in a friend of the court filing that argued in favor of overturning other states' bans of same sex-marriage.
Peter Lavallee, a spokesman for the Washington attorney general's office, said the main effect of the ruling for state residents is that same-sex couples married in Washington will have their marriages recognized in any other state when they travel or move there. Previously, same-sex couples from Washington could be denied certain rights, such as visiting a spouse in a hospital, in a state that didn't recognize their marriage.
Same-sex marriage has been legal in Idaho since last fall, when a federal court overturned a constitutional amendment in that state that made it illegal. The 9th U.S. Circuit Court of Appeals has refused to overturn that lower court decision, and Idaho Attorney General Larry Wasden and Gov. Butch Otter filed separate requests with the U.S. Supreme Court early this year to hear an appeal.
But the high court has not agreed to hear the Idaho case. Today's decision means it probably won't, and same-sex couples will continue to receive marriage licenses.
"The decision doesn't change the current landscape here," Todd Dvorak, a spokesman for Wasden, said.
The constitutional provision remains on the books, and the attorney general's office is reviewing the decision to determine what steps, if any, the state would need to take regarding the law.
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.
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.
Party-line vote in House panel backs non-binding measure to impeach federal judges over same-sex marriage
Rep. Paul Shepherd, R-Riggins, won support on a 12-4 party-line vote in the House State Affairs Committee this morning for his non-binding memorial, HJM 4, calling for Congress to support impeachment of federal judges who rule in favor of same-sex marriage. “All the people in the United States seem to be just rolling over with whatever the Supreme Court comes down with, so we need to do something about the Supreme Court,” Shepherd told the committee. He said there will be “impact on my grandkids … if the United States is going to condone something that I think is very immoral. … I can’t lay down, I gotta stand up and take it serious.”
Rep. Linden Bateman, R-Idaho Falls, agreed, saying, “I share the frustration that Rep. Shepherd hears regarding our judiciary. … There’s an incredible amount of arrogance that’s taken place with our judiciary. … It’s unbelievable what the federal courts have done with the 14th Amendment, applying it to questions like abortion.” He also mentioned pornography, saying such decisions should be left up to states. Bateman said the founding fathers who wrote the amendment are “rolling around in their graves.”
Shepherd said slave owners thought they were being good Christians, and he doesn’t dispute that, but his view is different. “Their Christian moral beliefs were that blacks were inferior,” he said. “They thought they were good Christians, good moral people, and I’m sure most of them were. But it just proves that our interpretation of Christian morals can be very far and wide … so I have no disrespect for anyone that sees it different than I do. But … this has to get settled. Marriage is too important to the future of our society to just roll over and let this go.”
Rep. Melissa Wintrow, D-Boise, said, “The good representative referenced Alabama, and the decisions made there. But when I think of Alabama I think of a governor who stood in front of a schoolhouse and wouldn’t let black children enter. And good Christians, I’m glad he bought that up, good Christians made laws that were racist and exclusive and violent. And thank God we had courts to say that was unconstitutional. Thank God we had the courts to interpret these laws and say that is not the way our country is.”
She said, “I would say that arrogance and ignorance does not isolate itself to any one branch of this government. I cannot support this. It feels embarrassing to me. And it doesn’t do anything to bring our state together, it just does everything to divide it more. It breaks my heart. And I wish that we could stop dividing our state and come together with love and compassion and allow people to be who they were within their own skin and their own lives, pay taxes, go to work, and be good, loving people.”
Rep. Pete Nielsen, R-Mountain Home, said, “There’s no way else it can be accomplished than by a man and a woman. Our constitution supports the marriage as we know it today.”
After the committee voted down Wintrow’s substitute motion to kill the measure, Rep. John McCrostie, D-Boise, who is gay, said he wanted to speak before the final vote. “This joint memorial is about same-sex marriage, and there’s nobody in here that understands this better than I do,” he said, “and I know that no one else in here has experienced what I have gone through.”
“I fell in love a little over 14 years ago, and the person that I fell in love with, we started to build our lives together,” McCrostie said. “We fixed up a home, we were able to sell that and move into a nicer home, we got a dog, a cat found us that we can’t get rid of. We mow our lawn, we keep our home in decent shape, we have friends over, and an opportunity came a little less than a year and a half ago for us to actually have the opportunity to be married. And for those of you who are married, I bet you understand. I remember looking into the eyes of the person that I love and saying ‘I do,’ and how my life was transformed in that moment.”
“That’s why marriage equality matters,” he said, “and I can’t describe it any better than that. I can’t put words to why marriage matters, I can just tell you that it does. And this continues to put Idaho on the wrong side of history. … This bill puts us on the wrong side of history again, and I would encourage you to vote no on this.”
Bateman said, “I’m not going to address the topic of same-sex marriage. It’ just who should decide, who should define what marriage is, and historically that’s been left up to the states. … Until 1972 such questions as abortion was always decided by the states. … We all know that there’s discrimination that occurs in society. … But who should decide these questions, that’s what we need to think about. If you’re going to give all the power on the federal government, it can come back to bite you, I’ll tell you. I had ancestors that were chased from pillar to post not by the states but by the federal government. … States discriminate, there’s no question about it and it’s wrong. But when should the federal government come in and try to correct everything the states do? If they do that, then we’ve got a centralized society.”
Just the committee's four Democrats voted against the measure.
Here’s a news item from the Associated Press: MOSCOW, Idaho (AP) — Idaho officials have ruled invalid the first six same-sex marriage licenses issued in the state. The Idaho Bureau of Vital Records and Health Statistics determined the couples received the licenses before the 9th U.S. Circuit Court of Appeals lifted a stay blocking same-sex marriage in Idaho. The rapidly unfolding events on Oct. 10 began when the U.S. Supreme Court denied appeals from five states seeking to retain their bans on same-sex marriage. The Lewiston Tribune reports (http://bit.ly/1KOlh64) in a story on Thursday that Latah County issued the licenses that day while other Idaho counties waited for clarification from the Idaho attorney general's office. The attorney general said a final order was needed from the 9th U.S. Circuit Court of Appeals. The appeals court didn't end the stay until Oct. 15.
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 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 state of Idaho must pay more than $400,000 in attorney fees and costs to the lawyers who represented the four lesbian couples who successfully sued to overturn the state’s ban on same-sex marriage, a federal court has ruled. “There is no dispute that Plaintiffs are the prevailing parties and are therefore entitled to an award of reasonable attorney fees and litigation expenses,” wrote U.S. Magistrate Judge Candy Dale, in an order issued late Friday. More here. Betsy Russell, EOB
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.
When the Idaho Legislature convenes it organizational session on Dec. 4, six committee chairmanships and two leadership posts will be up for grabs, due to election outcomes, retirements and other moves. The chairmanships: Senate Education, Senate Resources, House Business, House Local Government, House Resources, and House Ways & Means. The leadership posts are Senate majority caucus chair and House assistant minority leader. You can read my full Sunday column here; it also includes a report on the recently filed arguments in Idaho’s same-sex marriage case, in which Gov. Butch Otter is seeking an en banc re-hearing from the 9th Circuit Court of Appeals; and a state budget update.
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.
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.
Here’s a news item from the Associated Press: BOISE, Idaho (AP) — The American Civil Liberties Union of Idaho says it will not challenge a northern Idaho wedding chapel's refusal to conduct gay marriages because the chapel falls under a religious exemption. Interim Executive Director Leo Morales said in a news conference Thursday that the Hitching Post became a religious corporation in Idaho nearly a month ago. Morales says the ACLU believes that under that exemption, the chapel does not have to comply with the city of Coeur d'Alene's ordinance banning discrimination based on sexual orientation because the chapel only provides religious services. A Christian religious rights legal organization filed a federal lawsuit last week against the city contending the chapel could be compelled to perform gay marriages under the city's anti-discrimination ordinance. Gay marriage became legal in Idaho on Oct. 15.
The Lewiston Tribune reports today that part of the footage in one of Gov. Butch Otter’s campaign ads came from an unlikely source – out-takes from the “Add the Words” documentary. Tribune reporter Joel Mills writes that the footage is an interior view of the state capitol dome that appears in Otter’s “Business Testimonial” ad. “I rewound it and said, ‘Oh my God, that’s my shot,’” filmmaker Michael Gough told the Tribune.
The feature-length documentary film told the story of protesters at the 2014 Idaho Legislature who called for a hearing on legislation to amend the Idaho Human Rights Act by adding the words “sexual orientation” and “gender identity,” to prohibit discrimination on those bases. No hearing was granted, and hundreds of protesters were arrested.
Gough told the Tribune he put some of the unused, generic shots from the project on a stock footage website, where anyone can purchase them. About a month ago, he got word that someone had bought a five-second clip of the dome for $75; Gough didn’t know who until he spotted the footage in the Otter ad. “I was excited because somebody actually paid $75 for it,” he said.
Otter said recently in a political debate that he expects a hearing to be granted on the anti-discrimination bill next year, and blamed the “antics” of protesters for lawmakers’ refusal to grant a hearing this year. Otter also has been an outspoken opponent of allowing same-sex couples to marry in Idaho, though federal courts have thrown out Idaho’s ban on gay marriage as unconstitutional; this week, Otter asked the 9th Circuit Court of Appeals to rehear Idaho’s case. The Tribune’s report is online here, though a subscription is needed to see the full story. You can see Otter's campaign ad online here; the dome footage is at the 12-second mark.
Today was the third time that 74-year-old Navy veteran Madelynn Lee Taylor visited the Idaho State Veterans Cemetery to make arrangements to be buried there together with the remains of her late wife, Jean Mixner, but today’s outcome was different – Taylor completed all the necessary paperwork, picked out the plaque, and an interment ceremony was set for Mixner for next week.
“It’s done!” a relieved Taylor said as she left the cemetery office, throwing both hands into the air in triumph.
Her original application for the burial had been denied, citing Idaho’s ban on recognition of same-sex marriage. Taylor and Mixner were legally married in California in 2008. But now that courts have overturned Idaho’s ban as unconstitutional, the state can legally recognize the two women’s marriage. Cemetery Director James Earp welcomed Taylor to her appointment at the cemetery office today, helped her through the paperwork, and congratulated her with a handshake when it was done.
Accompanied by her pastor, the Rev. Renee McCall of Liberating Spirit Metropolitan Community Church, her lawyer, Deborah Ferguson, and an array of friends and supporters, Taylor let her relief show. “It’s a good day – we get to get Jean out of the closet!” she joked. McCall responded, “I just know she’s up there smiling and shining – she’s proud of you.” Said Taylor: “She’s dancing.”
Taylor filed a federal lawsuit against the state over the denial, but that’s moot now; the case is expected to be dismissed soon. Said Ferguson: “Lee deserves credit for shining a powerful light on the injustice and indignity caused by Idaho’s former exclusion of same-sex couples from marriage. Her persistence, visibility, and refusal to accept inequality are a model for us all.”
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.