Clark argues separation of powers

The attorney representing the state Land Board today was none other than Merlyn Clark, the attorney who’s been recently in the news as the state’s hearing officer on the Highway 12 megaloads case, a decision that’s now pending in his hands.

Clark argued in court today that the Land Board takes no position on whether the 1990 law that eliminated conflict auctions for cabin sites in favor of “market rents” is constitutional or not. “As I understand the argument of the Attorney General, it’s that the board should assume the role or the duty of the court in determining whether that statute is constitutional. … We still have separation of powers,” he declared.

Clark said, “The board cannot choose which law it will follow and which law it will not follow.” He also told 4th District Judge Deborah Bail that according to the ISEEO school lawsuit decisions from the Idaho Supreme Court, “You do not have the power or authority to tell another branch of the government how to do their job. … You have the power to declare the statute unconstitutional,” he said. But, he said, “We don’t think you have the power to enjoin the board.”

Deputy Attorney General Clay Smith said the Attorney General’s proposal for a preliminary injunction wouldn’t enjoin the Land Board; it merely blocks state Lands Department Director George Bacon from entering into the new cabin-site leases. “That does not restrain the board from taking appropriate action at its next meeting, which is scheduled for Dec. 21,” Smith told the court. He also said the idea that the Land Board must comply with unconstitutional laws until a court tells it otherwise was “remarkable.” Said Smith, “The real dispute here lies with the Land Board’s failure to comply with the Constitution.”