This morning’s arguments in the instant racing case featured an extended exchange between Justice Daniel Eismann and Deputy Attorney General Brian Kane in which both repeatedly interrupted each other, voices were raised, and the justice accused Kane of “evading” his questions. At issue was whether the Senate journal showed that Gov. Butch Otter’s veto of SB 1011, the bill to repeal authorization for slot machine-like instant racing machines, was delivered to the Senate after the Idaho Constitution’s required five-day deadline.

Three letters entered into the journal said just that, giving the exact date and time. But Kane said the full Senate didn’t endorse those letters, though they were entered into the journal by unanimous consent of the Senate. “Individual legislators cannot speak for the body,” Kane said. “They accepted it as a valid return and were bound by the veto.” He called the Senate’s subsequent unsuccessful veto override vote on the bill a “superseding” action. “That’s the problem for this court,” Kane said. “The journal has to be respected as the product of the Senate. And if the Senate says this is what we did in our proceedings, that has to be accepted.”

Justice Roger Burdick interjected, “I’m not going that far. Obviously if they do something that was unconstitutional, we have the right to step in.”

When Eismann quizzed Kane on whether Otter had complied with a state law that sets out specific procedures for returning a vetoed bill while the Legislature is in recess, Kane said he didn’t know. As he continued to speak, Eismann interrupted him, saying repeatedly, “Mr. Kane, Mr. Kane, Mr. Kane, are you aware of any compliance with 67-504?” “I have no opinion,” Kane responded. “Are you aware of any compliance? Obviously you will not answer the question – obviously you’re not,” Eismann said.

Kane said, “It’s not that I’m not answering the question, I don’t know the answer to that question. This court doesn’t know the answer to that question.” He said that’s because the Secretary of State was sued, not the Senate. When Eismann asked if a “competent attorney” would have inquired whether proper return of the vetoed bill had been made under 67-504 because if it had, his client, Secretary of State Lawerence Denney, would have had an “absolute defense to this writ,” Kane said, “It’s outside the authority of the Secretary of State.” Eismann retorted, “So you won’t answer that question either.” “I am answering it,” Kane said. “No, you’re not,” Eismann said.

Later in the arguments, Kane told Eismann, “You’ve asked a lot of really good questions,” and Eismann responded, “That you haven’t answered.” Kane said, “The folks that can answer them are not before this court.”

Former Idaho Attorney General David Leroy, representing Coeur d’Alene Racing, told the court he doesn’t believe the Coeur d’Alene Tribe has standing to bring the case. Citing a recent opinion in another case by Justice Joel Horton, Leroy told the court, “Standing could never be assumed based on a merely hypothetical injury.”

I’ll have a full story later this afternoon. Immediately after the arguments, Leroy said, “I think it was an excellent exploration by an active court of the limits of counsel’s knowledge and ability to articulate applicable law. For the lawyers, it’s actually a pleasure when you are engaged by questions, sharp, pointed questions – you actually learn where the judges are coming from.” He noted, “The fact that at least three of the judges had previously researched related issues and the laws of other states indicates that this is a very important case.”

Deborah Ferguson, attorney for the tribe, said, “I thought it went very well. I think the court understood the arguments; it was extensively briefed.” She added, “I think the tribe clearly does have standing to bring this case. If the court were to find otherwise, this constitutional violation would go completely unchallenged.”

She told the court, “Nothing is more fundamental to the rule of law than to know with certainty what the law is and how the law is made. This powerful process essential to our democracy is prescribed by the Idaho Constitution. It can’t be altered with a wink and a nod between branches of government, and it’s not subject to a flexible interpretation by those who hold the reins.”