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Idaho’s defense of unconstitutional initiative bill cost taxpayers another third-to-half a million

The Idaho Supreme Court building in Boise on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)
Otto Kitsinger
The Idaho Supreme Court building in Boise on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)

The Legislature’s disregard for the Constitution in this case is not out of the ordinary, writes guest columnist Jim Jones.

The Idaho Supreme Court delivered a resounding blow for democracy of, by and for the people on Aug. 23, declaring the Legislature’s bill to throttle the initiative and referendum to be unconstitutional.

Although many people, including five former Idaho attorneys general, had warnedthat the legislation, Senate Bill 1110, was violative of the Idaho Constitution, the legislators passed it anyway. Now, they will have to pay the price, which could come close to half a million dollars.

The Legislature’s disregard for the Constitution in this case is not out of the ordinary. In recent years, particularly this year’s session, legislators have shown little consideration for constitutional limitations.

House majorities approved legislation to unlawfully restrict the attorney general’s authority to represent state agencies, to keep itself in session throughout the year in violation of the Constitution, to defy and disregard valid federal laws, among other things. Thankfully, cooler heads in the Senate stymied a number of the unlawful acts, except of course for the legislation to kill the initiative and referendum.

Each of the illegal legislative acts exposes the taxpayers to liability for attorney fees and court costs in the event the legislation is challenged in court, as it was here. The Legislature has reportedly shelled out $3.2 million from its “constitutional defense” kitty since 1995 to unsuccessfully defend its legally deficient statutes. It is likely the cost of defending the ill-fated initiative legislation will come in somewhere between a third and a half a million.

The secretary of state was the defendant in the suit and was ably represented by the attorney general’s office, which is charged with defending the constitutionality of state statutes in court. The cost of attorneys from that office is near $60 per hour.

The Legislature chose to double team by joining the suit and hiring expensive private counsel. The private counsel’s discounted rate is reported to be $470 per hour or almost eight times the AG’s rate. The Legislature has been billed about $185,000 for its unsuccessful defense and may end up paying even more once the dust has settled.

There is also the internal cost to the state for the AG’s defense. Plus, the Idaho Supreme Court awarded fees and costs to the attorneys representing the challengers, Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution. Those attorneys, Deborah Ferguson and Craig Durham, did an absolutely remarkable job of deconstructing the unlawful statute and should receive compensation comparable to the Legislature’s private lawyer.

It is probably good that the Legislature replenished its legal slush fund by $4 million this year so that some in the Boise area legal community can put food on their tables for supporting and defending its unlawful statutes. On the other hand, as the Idaho Falls Post Register has accurately opined, this is a clear waste of taxpayer money.

Mention should be made of two other unconstitutional bills that came close to being enacted by the Legislature this year, both of which would have restricted the attorney general’s authority to represent the State. House sponsors claimed that deputy AGs were not up to snuff, that they could not stack up to lawyers in private practice who charge large hourly rates. This case blew those claims out of the water.

I read all of the documents presented to the Supreme Court and watched the argument before the court. The deputy AG who represented the secretary of state did every bit as well as the private attorney who represented the Legislature. The AG’s office does not have to take a back seat to anyone.

The attorneys representing the challengers, as well as retired deputy AG Mike Gilmore who filed his own challenge to the misguided initiative statute, did a most remarkable job. And, they had the Idaho Constitution in their corner.

The Idaho Capital Sun is a nonprofit news organization delivering accountability reporting on state government, politics and policy in the Gem state.