Idaho spends $1M on legal fees for winners after losing 3 lawsuits

BOISE - Idaho’s top elected officials agreed Monday to pay out nearly $1 million to the winning parties for their legal fees in three lawsuits against the state – the one that successfully overturned Idaho’s ban on same-sex marriage, another that invalidated an unconstitutional anti-abortion law, and a third over the state’s attempts restrict “Occupy Boise” camping and demonstrations around the state Capitol. With more, similar bills on the way, Idaho Gov. Butch Otter said he’ll ask lawmakers when they meet in January to replenish the state’s Constitutional Defense Fund, which the payments approved Monday will largely deplete. “We get sued by so many people we can’t keep track,” Otter commented acidly, between back-to-back meetings Monday morning of the state Board of Examiners and the Constitutional Defense Council to approve the payments. 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.” He noted that that’s why Idaho established its Constitutional Defense Fund back in 1995, under then-Gov. Phil Batt. “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,” Otter said. Idaho lawmakers approved another $1 million deposit to the fund during the 2014 legislative session; before Monday’s vote, it had a balance of $1.23 million. Since the fund was first established with a $1 million deposit of taxpayer funds in 1995, state lawmakers have put another $2.5 million into it. By law, the governor, the Attorney General, the House speaker and the Senate president pro-tem can vote to spend the money on legal costs; it’s historically been used primarily to pay attorney fees awarded by the courts. The fund’s now been tapped for court-awarded attorney fees 10 times. 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, Idaho Attorney General Lawrence 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 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 its 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 American Civil Liberties Union, which represented the protest group, disagreed over the attorney fee award, but settled, with the state agreeing to pay $137,364 plus interest. Otter said he’ll ask lawmakers in January to deposit more tax money into the Constitutional Defense 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.” Hill said, “There are very few things in state government that are more important than defending our state Constitution.” He added, “We’re in a very litigious society. People are going to sue if they feel they have grounds to do so.” Said Hill, “I respect that process. I don’t think we should back down and never defend our laws and our Constitution because we think we might lose. … Sometimes we’ll win, and sometimes we’ll lose.”