Supreme Court agrees to allow Leroy to offer arguments in instant racing case

The Idaho Supreme Court has agreed to allow former Idaho Attorney General David Leroy, attorney for Coeur d’Alene Racing, operator of the Greyhound Park Event Center in Post Falls, to participate in oral arguments in the instant racing case on Aug. 11. Previously, the court had allowed various parties, including Gov. Butch Otter, the operators of Les Bois Park, and the operators of the Double Down Betting Bar & Grill in Idaho Falls, to submit friend-of-the-court briefs, but not to participate in the oral arguments, which were to feature only the attorneys for the Coeur d’Alene Tribe and Idaho Secretary of State Lawerence Denney.

Leroy had asked to participate in arguments earlier, and the court had said no. But after he submitted a second request noting that the Secretary of State’s attorney, Deputy Attorney General Brian Kane, took “no position” on the issue of whether the tribe had standing to bring the lawsuit, the court agreed to allow Leroy to participate in the arguments – with the time he takes deducted from Kane’s time to argue.

Leroy noted in his second request that all three of the parties filing amicus briefs argued the standing issue, but the original target of the lawsuit, Denney, didn’t. “This procedural situation presents the likelihood that this substantial, critical and threshold issue will not be fully addressed and examined orally before the Court, if the Respondent only is allowed to argue,” he wrote, noting that the tribe responded to the standing argument in its response brief.

He also laid out other arguments he pressed in his friend-of-the-court brief, including a separation-of-powers argument saying the court can’t tell the Senate what to do, if the Senate wants to accept a veto as valid.

SB 1011, the bill to ban “instant racing” machines, which the Legislature had just authorized two years earlier, was among the most-lobbied bills of this year’s legislative session. It passed both the House and Senate by more than two-thirds margins. Gov. Butch Otter issued a veto, but didn’t send the vetoed bill back to the Senate until two days after the constitutionally-set five-day deadline. The Senate then took a veto override vote, which drew a majority, but not the two-thirds required for an override. The Coeur d’Alene Tribe, which proposed the bill, said the bill had become law without the governor’s signature when the veto deadline passed, and requested Denney to assign it a code section number and file it as a law. Denney refused, saying he didn’t think he had the authority to do that unless someone – the Senate or the court – told him to. So the tribe sued.

The arguments are set for Aug. 11 at 10 a.m.