After failed defense of anti-union law, Board of Examiners OKs $280K payment for winning side’s attorney fees

Idaho’s state Board of Examiners voted unanimously this morning to approve payment of $280,000 in attorney fees for the state’s failed legal defense of an anti-union bill passed by the Idaho Legislature in 2011; the payment request will be referred to the state’s Constitutional Defense Council this week for payment out of the Constitutional Defense Fund. The law, which was immediately enjoined and never took effect, banned “job targeting” or “market recovery” programs, in which unions use funds they collect from workers to subsidize bids by union contractors on jobs.

When lawmakers were considering the measure in 2011, the Idaho Attorney General’s office warned that it likely would be overturned in court, as it conflicted with the federal National Labor Relations Act. But the bill passed anyway; it included criminal penalties and hefty fines for violations.

A group of labor unions immediately sued in federal court and won. The state unsuccessfully appealed to the 9 ^th Circuit.

The 9 ^th Circuit ruled that “it is well settled that most of the conduct prohibited by Idaho’s statute is protected by the NLRA,” which has “repeatedly held that job targeting programs are actually protected under § 7 of the NLRA.” The 2011 law was dubbed the “Fairness in Contracting Act.” Sponsored by then-Sen. John Goedde, R-Coeur d’Alene, the bill passed the Idaho Senate 25-8 and the House 55-15, and Gov. Butch Otter signed it into law on March 3, 2011.

When the 9 ^th Circuit ruled against the state in 2015, James Piotrowski, an attorney for the unions, said they planned to seek attorney fees from the state. Piotrowski is now a Democratic candidate for Congress, running in a three-way Democratic primary for the chance to challenge 1 ^st District GOP Rep. Raul Labrador.

Deputy Attorney General Brian Kane told the Board of Examiners this morning, “We litigated these through the federal District Court, appealed to 9 ^th Circuit, at the 9 ^th Circuit we won a portion of it, but we still lost a portion of it.” The winning side submitted claims for more than $300,000 in attorney fees; Kane said the state negotiated that down to just over $280,000. “I think this is a fair resolution to the state at this point, and would recommend referral to the Constitutional Defense Council for payment.”

Idaho’s Constitutional Defense Fund was set up to defend state sovereignty and constitutional issues; it’s been used largely to pay the attorney fees and costs of the winning side when the state has lost lawsuits over unconstitutional legislation. This year, lawmakers deposited another $2 million in state general tax funds into the defense fund, on top of the $2.5 million already deposited since the fund’s creation in 1995, anticipating legal bills including this one.

The Constitutional Defense Council, which consists of the governor, the Attorney General, the House speaker and the Senate president pro-tem, oversees the fund and still must give final approval for the payment.