Idaho’s top elected officials agreed today to pay out nearly $900,000 from the state’s Constitutional Defense Fund, plus interest, to the winning parties in three lawsuits for their attorney’s fees and costs – the same-sex marriage case, the case that overturned an unconstitutional anti-abortion law, and the Occupy Boise case, in which the state sought to restrict camping and demonstrations around the state Capitol.
That largely depletes the Constitutional Defense Fund, which had a balance of $1.23 million, so Gov. Butch Otter said he’ll ask lawmakers in January to deposit more tax money into the fund to bring it back up into the million-dollar range. Senate President Pro-Tem Brent Hill, R-Rexburg, said, “I think that would be appropriate, governor.”
As the state Board of Examiners and the state Constitutional Defense Fund Council held back-to-back meetings in Attorney General Lawrence Wasden’s office this morning to approve the payments, Otter commented acidly, “We get sued by so many people we can’t keep track.”
Asked why the state is losing so many big lawsuits – and having to spend so much taxpayer money on the winning sides’ legal costs – Otter said, “You’re going to have to ask the lawyers why we’re losing. But I can tell you that in every case, we were either defending statutes or our Constitution. That’s why it was appropriate. That’s why we established, back in 1995, the Constitutional Defense Fund, because we were getting sued by these folks and having to go back to the Legislature almost every year in order to generate the ability to pay these court-ordered funds.” He noted that the fund was created by then-Gov. Phil Batt.
In all three of these cases, the court has ordered the state to pay these amounts. The state just lost another major constitutional case last week in U.S. District Court, when the court ruled a 2014 Idaho law making it a crime to surreptitiously videotape agricultural operations violated the First Amendment and the Equal Protection Clause of the U.S. Constitution. Asked if that case, too, is likely to result in a big bill for the state to pay the winning side’s legal fees, Wasden said, “Certainly it is a possibility.” But that case is “still in process,” he said. The state hasn’t decided whether or not it will appeal. “We’re discussing that,” he said.
“There were a number of high-profile cases that we haven’t come out on the right end, there are others that we have,” Wasden said. He said his job is to provide legal advice to the Legislature when it asks him, but the Legislature decides what laws to enact. “Once they make their choice, then my job is to defend it, and that is what we’re doing,” he said.
In the same-sex marriage case, Latta v. Otter, four Idaho couples sued and successfully overturned Idaho’s ban on gay marriage, which was both in the state Constitution and state laws. The latest court order is for $226,891 plus interest for attorney fees and costs on appeal; the state already paid the couples’ attorneys $401,663 for the U.S. District Court portion of the case. Idaho unsuccessfully appealed the case both to the 9th Circuit U.S. Court of Appeals and to the U.S. Supreme Court.
In the abortion case, McCormack v. Herzog, a woman from Bannock County was prosecuted for illegally self-inducing an abortion with drugs purchased over the Internet, in violation of several Idaho laws. She sued; the case, handled by the Idaho Attorney General’s office, went to the 9th Circuit twice, but the woman prevailed and several Idaho anti-abortion laws were overturned, including the “Pain-Capable Unborn Child Act” that lawmakers passed in 2011, which sought to ban all abortions after 20 weeks on grounds of fetal pain. The state was ordered to pay more than $500,000 in Jennie Linn McCormack’s attorney fees and costs.
In the Occupy Boise case, Watters v. Otter, a protest group that was evicted from a tent encampment across from the state Capitol challenged new state laws and rules restricting camping and protests that were enacted in 2012 in response to the Occupy Boise protests. While some of the rules were upheld and others determined to be unconstitutional, the court held that the no-camping statute had been unconstitutionally applied to the protest group. The state and the ACLU, which represented the protest group, disagreed over the attorney fee award, but settled, with the state agreeing to pay $137,364 plus interest.