Wasden declines gambling challenge
BOISE – Idaho Attorney General Lawrence Wasden has declined a request from legislative leaders that he appoint a special independent counsel to challenge the voter-passed tribal gaming initiative.
“It would not be appropriate to appoint an attorney on behalf of the attorney general’s office to take a position contrary to our obligation to defend statutes,” Wasden wrote in a letter to the Legislative Council, a leadership group that manages legislative business between the sessions.
Rep. Mary Lou Shepherd, D-Prichard, said, “I don’t believe that’s appropriate either.”
Shepherd had initially voted for the request, but said legislative leaders had persuaded her it was limited to a question regarding out-of-state tribes. She said she didn’t want Idaho taxpayers to pay to challenge their own initiative.
The council had met in late May to deal with other issues, and unexpectedly, in the closing moments of its meeting, voted 10-4 to request Wasden to consider appointing an independent counsel to challenge the gaming initiative.
Senate President Pro-tem Robert Geddes said he believes the initiative, by clearly legalizing existing reservation casinos in Idaho, conflicts with the Idaho Constitution’s ban on slot machines.
“It was an encouragement that maybe somebody should be looking after our Constitution,” Geddes said. “In my opinion and in the opinion of many others, Lawrence has a conflict of interest.”
Wasden responded in his letter that if the Legislature or one of its houses requests his office to appoint an attorney to represent them in a lawsuit, he would do that. But he said it wouldn’t be appropriate for the attorney general’s office to essentially sue itself over the voter initiative.
“The council, in its motion, has … asked me to consider whether my duty to uphold state laws may, in the instance of the 2002 Indian Gaming Initiative, conflict with my duty to uphold the provisions of the Idaho Constitution,” Wasden wrote in his letter. “The answer to this question is no.”
He added, “In an adversarial proceeding, the duty of my office is to defend the statutes of the state against constitutional attack if a good faith argument can be made. This is essential in order to protect the legislative function regardless of whether statutes are passed by the Legislature or the people. This is my current role in the Indian gaming litigation, and will continue to be my role.”
Senate Majority Leader Bart Davis, reached by phone shortly after getting word of Wasden’s response, was none too pleased.
“The Supreme Court’s already ruled on the definition of a slot machine, and the tribal gaming devices appear to be very plain within that definition,” Davis said. “I believe that the attorney general has an affirmative duty to not only uphold the statute, but he has an affirmative duty as well to uphold the constitution.”
House Minority Leader Wendy Jaquet, D-Ketchum, who opposed the Legislative Council motion, said, “I still think it was not appropriate. … The people have voted.”
The gaming initiative passed with 58 percent of the vote statewide and received even stronger support in North Idaho.