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Eye On Boise

Idaho SupCourt awards fees to CdA Tribe in instant racing case, but cuts amount by nearly half

The Idaho Supreme Court has ordered the state of Idaho to pay attorney fees and costs to the Coeur d’Alene Tribe in the instant racing case, rejecting the state’s arguments that the tribe shouldn’t get the payment because it missed a time limit; but it also reduced the amount of fees awarded by nearly half. The Coeur d’Alene Tribe sued the state over Gov. Butch Otter’s belated attempt to veto legislation this year repealing authorization for slot machine-like “instant racing” machines. Otter delivered the vetoed bill back to the Senate after the five-day time limit specified in the Idaho Constitution had expired; the justices held that the bill already had become law, so the veto wasn’t valid.

After losing the case and receiving the attorney fee order, the Idaho Attorney General’s office argued that the tribe didn’t submit its invoice for the fees within 14 days of the court’s decision, so it shouldn’t be able to collect anything, arguing with some irony that time limits must be respected. The tribe said the 14-day rule didn’t apply to this type of proceeding, a rare original jurisdiction case in the Supreme Court; the 14-day rule is for appeals. “The tribe correctly points out that the Court’s decision issued in this case was not a decision on appeal,” the court wrote in its ruling today.

Plus, it noted that by another interpretation of court rules, it could be argued that if there is a 14-day time limit, it hasn’t even started running yet, because the court hasn’t issued a final order separate from its opinion. And in a separate issue that the court didn’t address, it issued a substitute opinion in the case on Nov. 20, which the tribe argued would have started any clock running again, well after it had submitted its invoice for attorney fees and costs. “The Tribe should not be procedurally denied relief because of the ambiguity of our appellate rules,” the court found.

Justice Warren Jones wrote a concurring opinion, dissenting only to the amount that the court awarded in fees; he argued that it should have been no more than $25,000, and that he considered the original $95,000 request “grossly unreasonable.” The majority reduced it to $57,407, the lesser amount that Secretary of State Lawerence Denney argued was "reasonable" for the case.

Though the tribe responded to multiple legal arguments from other parties that filed amicus briefs in the case, including instant racing operations from around the state and Gov. Butch Otter, the court’s order of attorney fees was only for the portion of the case in which the tribe responded to arguments made by the main defendant, Denney.

“This case involved only one issue: Whether SB 1011 was timely vetoed by Gov. Otter,” Jones wrote. “The Idaho Constitution specifically provides that a legislative bill must be returned to the Legislature as vetoed within five days (not counting holidays and Sundays) while the Legislature is in session. Perhaps I understate the issue when I assert that anybody with five fingers and a calendar can determine whether a veto is timely returned; it is not, however, understated by much.”

While the other parties argued an array of legal questions to which the tribe had to respond, from whether or not the tribe had standing to sue to whether under the separation of powers doctrine the Senate’s failed override vote, taken after receiving the invalid, belated veto, meant the veto was actually valid, Denney argued only that he didn’t have authority to certify the bill as law unless the court told him to; it did. The court ruled that he had a duty to certify the bill because it had become law without the governor’s signature. You can read the court's full order and dissent here.

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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