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Eye On Boise

The justices’ questions…

Interestingly, Idaho Supreme Court justices allowed Deputy Attorney General Melissa Moody, speaking for Attorney General Lawrence Wasden's side, to give her entire presentation before asking her questions during arguments on the Land Board case today, while they interrupted attorney Merlyn Clark, representing the Land Board, with questions no more than 30 seconds into his argument. Still, there were plenty of questions from the justices for both sides. Justice Roger Burdick compared the question of whether the court should intervene with another branch of government to the state's long-running school lawsuit, saying, "We just had a political campaign where we argued this extensively as to whether or not we'll ... give orders to the executive and legislative branches." Clark responded that the Land Board issue is "the same thing."

When Clark argued that the Supreme Court can't issue a writ unless the Land Board acted outside its jurisdiction, Burdick asked, "Doesn't it boil down to this: That if you plainly acted unconstitutionally, you have no jurisdiction?" Clark agreed. Justice Joel Horton said by asking for a writ to prevent the Land Board from entering into leases unless they meet the requirements of the Constitution, Wasden asked for "I don't want to say (a) meaningless request for relief, but a very broad request." Horton also asked both sides if it's possible to achieve maximum return in a situation where the state owns the lots, but private parties own the cabins, a question Chief Justice Dan Eismann also probed; Moody said yes, while Clark said no. "There is no market rent for these properties," he said.

When Moody argued that the problem is that Land Board members said their plan wouldn't meet constitutional requirements and then approved it anyway, "flagrantly disregarding the law," Eismann asked, "So the message you want us to send is don't tell us what you're doing ... don't admit it on the record?" Moody replied, "The message we want to send is do it right - comply with the Constitution."

Former Justice Linda Copple Trout, who sat in for Justice Jim Jones, who recused himself from the case, asked whether premium rent should be considered part of an overall plan to collect market rents on state-owned cabin sites, even if annual rents fall short of that standard. Moody replied, "No, under Idaho Code, they have to get market value progressively and they are not allowed to catch up at the end of a lease term."

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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