From the Coeur d’Alene Press

By KAYE THORNBRUGH

COEUR d’ALENE — A report issued by North Idaho College attorney Art Macomber recommended that trustees nullify President Nick Swayne’s employment contract due to an open meeting law violation that allegedly occurred the day Swayne was hired.

Trustees Todd Banducci, Greg McKenzie and Mike Waggoner took Macomber’s advice Monday night, voting to nullify the contract but keep Swayne on as active president until further notice.

Tarie Zimmerman and Brad Corkill strongly opposed voiding the contract based on the report. Corkill said Macomber’s “unhinged analysis” appeared to be a “roadmap for a coup to get rid of the college president.”

NIC published the full 173-page report Tuesday afternoon after trustees agreed to release it to the public. Read it at cdapress.com.

Macomber acknowledged in the report that an order issued last month by Judge Cynthia Meyer — which called Macomber’s investigation into Swayne’s contract “a sham” — prohibits firing Swayne and that doing so could result in charges of contempt. In fact, following the board’s Monday night vote, a contempt hearing in Swayne’s lawsuit is scheduled for June 2.

But if trustees nullify the contract, Macomber argued, the judge’s order is no longer binding.

“The board should recognize the Swayne contract is null and void,” Macomber said. “As such, the Swayne lawsuit may and likely should fail for a lack of valid contract to interpret.”

The allegations of an open meeting violation stem from a phone conversation between Laura Rumpler, NIC’s chief communications officer, and Angela Provart, the independent consultant who facilitated the national search for presidential candidates.

NIC trustees met June 22, 2022, to choose a president from among four finalists. Prior to the meeting, in preparation for the announcement of the trustees’ choice of a president, Rumpler reportedly prepared a news release for each finalist, so that one would be available as soon as one of them was selected to be hired.

The morning of June 22, she reportedly sent an email to Provart, as well as to former trustee David Wold and former NIC attorney Marc Lyons.

“If there are two of the four candidates that are rising to the top, can you give me an indication so I can best prep, knowing we won’t know the final outcome until the board takes action tonight?” Rumpler wrote. “I’d really like to narrow down our work and strategy if possible.”

Later that morning, Rumpler said she and Provart spoke on the phone.

Rumpler alleges that Provart told her Swayne would be selected that night.

“Telephone conversations are difficult to verify, but the facts show Ms. Rumpler concluded her email exchanges with (the other finalists) early in the afternoon, while her exchange with Dr. Swayne continued late in the afternoon,” Macomber wrote in his report.

It appears that Macomber did not speak to Provart about the matter.

Provart confirmed via email with The Press Tuesday that she checked in with the trustees toward the end of the search process to gauge their feelings about the finalists.

“I reached out to all trustees individually, never as a group,” she said. “I talked with all trustees except for Banducci and McKenzie, as they did not respond to my messages.”

In the report, Macomber was critical of Swayne’s relationship with the NIC Foundation, an independent nonprofit founded in 1977 to encourage private support for NIC. Governed by a volunteer board of directors, the NIC Foundation solicits, accepts and stewards resources, including private donations, to enhance college programs and provide student scholarships.

The college president traditionally serves as the foundation’s corporate secretary. Macomber suggested this may be inappropriate and that Swayne’s loyalty may be split between the college and the charity that supports it.

“The board of trustees may want to reevaluate those potential conflicts, especially if Dr. Swayne is enjoying a second paycheck or other remuneration from the Foundation in addition to his presumably primary paycheck as North Idaho College president,” Macomber said. “This author has no written evidence of monetary payment from the foundation to Dr. Swayne.”

Macomber insinuates a conspiracy involving the NIC Foundation and the State Board of Education. The three former trustees who voted to hire Swayne were all connected to the NIC foundation. John Goedde and David Wold had served as board members, while Pete Broschet worked for a board member. Macomber implied that the State Board of Education appointed the trio to the NIC board because of their connections to the charity.

He added that the board should “reconsider the college’s relationship to this private entity.”

Macomber did not interview the former trustees he accused of participating in a conspiracy to hire Swayne. Instead, he issued subpoenas to them, along with college employees and others.

Macomber described Swayne’s lawsuit seeking reinstatement to his job as “unexpected” but “lucky” because it opened the door for him to issue subpoenas for information about Swayne’s hiring he might otherwise be unable to access.

The court quashed three of the subpoenas, calling them “unreasonable and oppressive.” Legal counsel assigned by NIC’s insurer withdrew the rest.

Macomber criticized those who did not comply with his subpoenas and said they are responsible for errors in his report.

“If any action taken by the board of trustees based on this report is found later to be in error due to a lack of information purposefully withheld by those parties, the public should understand that the blame for needless costs and delays must lie at the feet of those persons,” he said.

In her ruling, Meyer noted that the window for any action related to a June 22 open meeting violation closed in January, six months after the hiring.

Macomber disagreed, asserting that a public governing body may “self-recognize” an alleged violation and act upon it at any time, even years after the fact.

“If the board of trustees of North Idaho College wants to self-recognize its own violation of the Open Meetings Law that it may determine occurred in June of 2022, the use of this report to substantiate such act would not be time-barred under the statute,” he said.

But McKenzie and Banducci began to publicly question the legitimacy of Swayne’s hiring the very night he was selected as president, long before Macomber’s report existed.

In the June 22 board meeting, Banducci suggested Swayne’s hiring was a “naked power grab” coordinated by former trustees, the Idaho State Board of Education, Judge Meyer, the Attorney General’s Office, the governor and others.

“As far as I’m concerned, this entire process is null and void,” he said.

McKenzie, too, voiced concerns about “corruption” in the search process.

The pair also objected to voting for a president without first meeting in executive session to discuss the candidates. To enter closed session, four trustees must agree; the private session did not occur because McKenzie and Banducci blocked it.

At least $19,074 was spent to create this report, according to Macomber’s invoices from February and March, which make specific references to a “board report.”

However, because Macomber’s invoices are heavily redacted and his April bill is not yet available, it’s impossible to know the true cost of the report to North Idaho College.

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Macomber report

From the Coeur d’Alene Press

From the Idaho Statesman

The Ada Community Library board violated Idaho Open Meeting Law at its March board meeting when the trustees voted to remove six books from the library’s collection without noting an action item on the agenda.

The board acknowledged its mistake in a statement posted on its website Tuesday morning after the Idaho Statesman published a story on the vote to remove the books.

“The board acknowledges the error and reiterates that those votes are ineffective and the books discussed will remain in the library’s collection pending any further action,” the statement said.

In a statement emailed to the Statesman, the board said it has no plans to take a re- vote on removing the books.

The board also credited the Statesman for making the board “realize the procedural deficit that occurred at the March meeting.”

The library trustees had voted to remove six books from the collection in March because they believed the content was “harmful to minors.”

“A series of books in the collection were read by trustees and reviewed under existing Idaho code to determine whether they contained material that fell within the current Idaho statutes’ definition of what is ‘harmful to minors,’ ” the board said in a statement to the Statesman. “Where it seemed so, the board voted to remove the books from our collection. Where the books did not contain such material, the board voted to retain.”

The board’s action came after a bill from the Idaho Legislature that would have opened library staff members to misdemeanor charges for disseminating material harmful to minors. Librarians are exempt from the current law in Idaho. The bill passed the Legislature but was vetoed by Gov. Brad Little after the board voted to remove the books.

The board voted to remove the following titles:

• “Gender Queer” by Maia Kobabe
• “Lawn Boy” by Jonathan Evison
• “All Boys Aren’t Blue” by George M Johnson “Out Of Darkness” by Ashley Hope Perez
• “The Bluest Eye” by Toni Morrison
• “This Book is Gay” by Juno Dawson

The vote was taken under the agenda’s “legislative update.” The result was null and void because the agenda didn’t list a related “action item.”

“Due to a miscommunication, this was not done for the March 21, 2023, meeting and went unnoticed until recently,” the board said on its website.

The agenda for the board’s May meeting was not posted online as of Tuesday afternoon.

From the Idaho Statesman

From the Associated Press

By REBECCA BOONE

BOISE, Idaho (AP) — The Idaho Supreme Court on Monday rejected a request by 30 news organizations to lift a gag order in the criminal case of a man accused of stabbing four University of Idaho students to death.

The high court did not weigh in on whether the gag order, which prohibits attorneys, prosecutors, law enforcement agencies and others involved in the case from talking to the news media, violates the First Amendment rights of a free press. Instead, the unanimous Idaho Supreme Court justices said the news organizations should have brought their request to the magistrate judge who issued the gag order.

“This Court has long respected the media’s role in our constitutional republic, and honored the promises in both the Idaho Constitution and First Amendment to the U.S. Constitution,” Justice Gregory Moeller wrote in the decision, going on to quote a ruling from a federal case that said responsible press coverage, “guards against the miscarriage of justice” by subjecting the court system and those who are a part of it to public scrutiny.

Still, Moeller wrote, the balancing act between the First Amendment protections afforded to the press and the Sixth Amendment fair trial rights promised to defendants has become increasingly difficult with the advent of the internet and social media.

Though those are “well-guarded rights,” Moeller said, news organizations who wish to challenge gag orders should start at the lower courts and work their way up to the state’s highest judicial bench, rather than approaching the Supreme Court first.

Bryan Kohberger, 28, is charged with four counts of first-degree murder and burglary in connection with the stabbing deaths in Moscow, Idaho. Prosecutors have yet to reveal if they intend to seek the death penalty.

The bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were found on Nov. 13, 2022, at a rental home across the street from the University of Idaho campus. The slayings shocked the rural Idaho community and neighboring Pullman, Washington, where Kohberger was a graduate student studying criminology at Washington State University.

The case garnered widespread publicity, and in January Latah County Magistrate Judge Megan Marshall issued the sweeping gag order, barring attorneys, law enforcement agencies and others associated with the case from talking or writing about it.

The coalition of news organizations, which includes The Associated Press, contends the gag order violates the right to free speech by prohibiting it from happening in the first place.

An attorney representing the family of one of the victims has also filed an opposition to the gag order in state court. Shannon Grey, who represents the Goncalves family, said in that challenge that the gag order is unduly broad and places an undue burden on the families. Marshall said a hearing on the matter would be held after the Idaho Supreme Court issues a ruling on the news organizations’ challenge.

Kohbergers’ attorneys, meanwhile, contend the gag order essentially requires the attorneys involved in the case to act ethically to ensure Kohberger gets a fair trial.

“This is not a case where the attorneys seek to use the rules as a weapon against one another. It is a case where a young man is on trial for his life,” Logsdon wrote. “There was nothing inappropriate about the Magistrate Court reminding the attorneys involved of their ethical obligations.”

High-publicity cases often present a conundrum for judges, who work to protect the defendant’s right to a fair trial. Courts sometimes feel that controlling the flow of information around the case — by forbidding those involved from talking about it — is an effective way to limit publicity.

But gag orders can infringe on the First Amendment rights of the public and of the people involved in the case. News organizations that cover the courts serve a watchdog role, keeping the public informed about how the judicial branch operates. During the investigation into the University of Idaho students’ slayings, news organizations’ interviews with investigators and law enforcement officials often worked to quash misinformation spread online by people who styled themselves as sleuths on social media sites.

“While we are disappointed that the Court denied the petition, the media coalition now has a clear path under Idaho law to challenge the gag order and vindicate these important First Amendment rights,” Wendy Olson, the attorney representing the news coalition, said.

The Idaho Supreme Court ruling means the news coalition could now go to the magistrate judge to ask her to reconsider the gag order. The coalition has not yet announced any next steps.

From the Associated Press

From the Coeur d’Alene Press

By KAYE THORNBRUGH

COEUR d’ALENE — North Idaho College attorney Art Macomber and trustees Greg McKenzie, Todd Banducci and Mike Waggoner used personal email addresses to secretly prepare for public meetings during which the three trustees, as a board majority, hired Macomber and ousted NIC President Nick Swayne by placing him on administrative leave.

Two such emails revealing the communications became public Thursday as part of a lawsuit filed by Mike Gridley, the former attorney for the city of Coeur d’Alene.

The lawsuit, submitted to the court in December 2022, accuses Macomber and the three trustees of fraud and of violating Idaho’s open meeting laws. The suit also alleges interim president Greg South has received “unjust enrichment” as a result of his hiring.

Emails obtained through the discovery process show private planning for public meetings by a board majority: Banducci, McKenzie and Waggoner.

“The emails memorialize ‘This is what we want to do at the December meetings,’” said Kinzo Mihara, the attorney representing Gridley, before Judge Ross D. Pittman during a hearing Thursday in Kootenai County Magistrate Court.

Court records show that Macomber sent an email Nov. 21 — two weeks before his hiring — to McKenzie, Banducci and Waggoner via their personal email addresses.

Banducci and Waggoner frequently use personal email accounts for college-related communications, while McKenzie typically uses his NIC-provided email account, although he too uses a personal email account at times.

“Leslie and I are leaving on December 15 for Texas and returning December 29,” Macomber wrote. “The December NIC meeting could be the 14th or earlier, or December 30, unless you guys want to pay me to fly for a day in between. I would say it’s not worth it and either set it earlier in the month or really late.”

“I would suggest earlier,” replied Waggoner.

In a Dec. 1 email to the three trustees, Macomber attached and described documents he had created in preparation for meetings that would occur throughout the month.

“These three resolutions cover the bases,” Macomber wrote. “Also, the letter to Lyons is changed.”

One resolution instituted a hiring freeze for the president’s cabinet, while the other two had to do with the college’s legal counsel.

The letter was a demand that Marc Lyons, the college’s former attorney, turn over “all NIC records” in his possession. Lyons resigned from his position last November, after 23 years, citing tensions on the board of trustees.

The other two trustees on the five-member board, Brad Corkill and Tarie Zimmerman, confirmed Thursday that they had no knowledge of the private communications between Macomber and the other trustees.

Gridley has asked the court for permission to amend his civil complaint to include new information unearthed through the discovery process, including the emails.

Mihara argued in court Thursday that the emails are relevant to the case because they involve violations of Idaho’s open meeting laws, which exist to prevent the public’s business from being conducted in secret.

“Sunshine needs to shine on these facts,” Mihara said.

Brittney Adams, an attorney representing South and the three trustees, rejected Mihara’s assertion that the emails are evidence of illegal serial meetings.

“These weren’t serial meetings,” Adams said. “This was a series of emails.”

Serial meetings, which violate Idaho’s open meeting law, occur when a majority of members of a governing body have a series of small gatherings or communications to make a decision or deliberate toward a decision, even if a majority is never part of any one communication.

Idaho’s open meeting law requires that all meetings of a governing body of a public agency shall be open to the public, with meeting notices and agendas shared with the public prior to a meeting. The law defines a meeting as any convening of a body to make a decision or deliberate toward a decision on any matter.

At the Dec. 5 board meeting, Macomber and Banducci said that Banducci had drafted the resolutions presented that night.

Three days later, in a subsequent board meeting, Macomber revealed that he had written the resolutions and gave them to Banducci. The Dec. 1 email confirms that he also shared the resolutions with Waggoner and McKenzie ahead of time.

Macomber, who donated to the political campaigns of the three trustees he’d secretly emailed, also claimed during the Dec. 8 meeting that he didn’t anticipate being hired as the college’s new legal counsel. He said he’d taken it upon himself to write his own fee agreement after Lyons resigned.

“I didn’t know if there were other attorneys they were thinking of,” Macomber said Dec. 8. “But I thought, ‘You don’t get anywhere by just sitting back and waiting for life to happen to you.’ So I brought the fee agreement and there it was. These guys voted me in.”

His earlier emails contradict that statement, showing he planned for the board majority to hire him.

Other documents in Gridley’s amended complaint showed that Greg South altered the contract of a temporary employee to add a $40,000 exit bonus after that employee had already resigned. This occurred three hours before trustees complied with a court order to reinstate Nick Swayne as active president.

Emails from South indicate that Jim Forkum, an interim South hired in early January, resigned from his position March 5.

In a declaration filed with the court, Macomber said South instructed him verbally March 6 to draft a modification of Forkum’s contract. He said South didn’t tell him that Forkum had already resigned.

At 6:35 a.m. the same day, Macomber reportedly emailed trustees and members of the president’s cabinet to say that Swayne was not president until the board formally acted to reinstate him, according to records obtained by The Press.

That afternoon, South and Forkum signed the modification prepared by Macomber, which stipulated that Forkum would be paid as if he had worked through June 18, 2023, if he or NIC ended his employment before that date.

“The agreement as signed on January 10, 2023 neglected to add termination provisions related to how Dr. Forkum would be paid by North Idaho College if the contract was terminated early,” the document said.

The cost of implementing the modification would be $52,238.40, an additional $40,000 over the amount owed according to Forkum’s original contract.

Judge Pittman said Thursday that he will consider whether to allow Gridley to amend his complaint and issue a ruling at a later date.

Read the documents at cdapress.com.

Documents from Greg South and Art Macomber

Art Macomber declaration, including emails

Gridley motion to amend complaint

From the Coeur d’Alene Press

From the Idaho Press

By ERIN BANKS RUSBY

A day before the start of the Boise Pride festival last September, Idaho Department of Health and Welfare Director Dave Jeppesen sent a letter to festival organizers saying his agency would be dropping its sponsorships.

Jeppesen’s letter, which circulated on social media, said that though the agency had sponsored the event in previous years, it would be dropping its two sponsorships this time due to “some confusion about whether DHW endorses specific activities involving minors during this event.”

Outcry had erupted two days before over concerns that sponsors of the festival were condoning a festival event called “Drag Kids,” in which kids would dress in drag and perform on stage on Sunday afternoon.

But the letter didn’t include a key detail: The Idaho Department of Health and Welfare is a state agency that answers to the governor’s office. Gov. Brad Little’s office had asked the agency to terminate its sponsorships, email records obtained through a public records request show.

Madison Hardy, the governor’s press secretary, confirmed that in a statement provided to the Idaho Press via email.

“The Governor’s Office asked DHW to pull its sponsorship of 2022 Boise Pride event because of concerns about public funds being used to support an event that planned to feature children as young as 11 performing in drag before an adult audience,” Hardy said.

Hardy declined an interview for Little or other governor’s office staff, and did not provide answers to additional emailed questions regarding the decision or officials’ positions on LGBTQ+ issues.

In an email to the Idaho Press, Niki Forbing-Orr, spokesperson for the Department of Health and Welfare, declined interviews for department staff, saying, “we don’t have anything to add at this point.”

Emails from the agency in the week leading up to the festival show that staff were disheartened by the decision. And Boise Pride Executive Director Donald Williamson said he is considering legal action against the state for breaching its contracts for Boise Pride 2022, amounting to a loss of $38,000.

A quick refresher

The decision to pull sponsorships came following an article published by the Daily Caller, a right-wing news and opinion outlet, which questioned why corporations were sponsoring an event featuring children performing in drag, as previously reported. Following that article’s publication, Idaho GOP Chairwoman Dorothy Moon sent emails denouncing sponsorship of the event, alleging that the drag kids event promotes the sexualization of children. On social media, posts circulated that included sponsoring businesses’ names and contact info and encouraged concerned citizens to call on sponsors to terminate their sponsorships.

Such messaging about children being in danger has become common among far-right groups in recent years, though the ostracization of the LGBTQ+ community — and their fight to be accepted in society — is not new. The most recent narrative insinuates that members of the LGBTQ+ community are pedophiles, sex traffickers, and the like, and are “grooming” children in order to molest them, ideas promulgated by QAnon and other conspiracy theories.

Following Moon’s email, Boise Pride issued its own statement, saying, “the only perversion and sexualization of this performance are coming from extremists and people like Dorothy Moon who are twisting it into something it is not.”

But the statement did not prevent sponsors from dropping out. In total, the festival lost about 6% of its sponsors, Williamson said. Those that dropped were Zions Bank, CapEd Credit Union, Idaho Central Credit Union, Idaho Power, and the Department of Health and Welfare.

The Thursday before the festival weekend, Boise Pride announced it was postponing the Drag Kids event. But sponsors that had dropped out, including the Department of Health and Welfare, did not opt back in.

‘Incredibly disappointing’

DHW staff emails in the week leading up to the festival show that higher officials in the organization were well-aware of calls to revoke sponsorship.

Late on Wednesday, following Zions Bank’s announcement of its dropped sponsorship, a DHW staff member wrote, “there is a chance the governor’s office may ask us to pull our sponsorships … “

By late Thursday morning, a day before the start of the festival, Elke Shaw-Tulloch, administrator for the public health division of DHW, sent an email to notify some staff that the governor’s office had indeed asked the department to pull its sponsorships and that she would be drafting a letter to let Boise Pride know.

“The governor’s office likes the tone of the Zions Bank letter,” Shaw-Tulloch said in the email. “I would like something that also emphasizes our support for the community and the importance of our services.”

Shaw-Tulloch continued, “I very much appreciate all of the hard work of your programs and your staff supporting the community and I expect that to continue. This saddens me to not support this particular event, but I understand the downstream ramifications.”

Cristi Litzsinger, a bureau chief with the agency, said in an email to some of her staff, “I agree with Elke’s sentiments and it makes me sad it has come to this.”

In a separate thread, Aimee Shipman, the section manager for the HIV, STD, and Hepatitis program, said, “This is incredibly disappointing. We are throwing our strategic populations under the bus just because of a letter?” She appears to be referring to Moon’s email.

After Boise Pride announced it was postponing the Drag Kids event, staff in DHW’s HIV, STD, and Hepatitis program seemed hopeful the sponsorship could still move forward.

“Do you know since the drag (kids) show was dropped if we are still moving forward with withdrawing sponsorship?” Shipman wrote Friday morning.

“Yes, we are waiting to hear if we are back on for sponsorship today,” Litzsinger said. “Hopefully soon.”

“I know the letter (to Boise Pride) was sent, but there still might be a chance the department will change their mind?” wrote Kimberly Matulonis-Edgar, program coordinator for the HIV, STD, and Hepatitis program on Friday morning.

“Correct,” Litzsinger replied.

It is unclear what additional discussions were had, but the department did not reinstate its sponsorships.

In a December email provided to the Idaho Press by Williamson, a staff member with DHW told Boise Pride organizers that “our program heard about the sponsorship retraction after you did, and were equally upset. We weren’t able to talk through the ramifications nor able to convey that it actually presented to stand up to discrimination and stigma.”

The person says their program “hasn’t heard much from DHW since the week after Pride,” and, “our program will do everything in our power to continue supporting the event, and are actually more motivated than ever to make sure we find ways to support organizations that work directly for/with the LGBTQIA+ community.”

DHW’s indirect participation

The Department of Health and Welfare had two sponsorship agreements in place for the festival. And though it had dropped its sponsorships, some components went ahead, records show.

The first sponsorship was from the department’s Project Filter, a smoking cessation program, which was supposed to have a booth at the event. The program is for all Idahoans, not just the LGBTQ+ community, Shaw-Tulloch told a colleague via an email obtained by the Idaho Press.

The department considers the LGBTQ+ population a priority for smoking cessation efforts because “it tends to have a tobacco use rate almost 3 times higher than the rest of the population,” Shaw-Tulloch said in the email.

In addition to the booth, the program’s sponsorship meant a contribution of $18,000, according to the contract for the event. Because of the sponsorship termination, the program did not have a booth at the festival, according to department emails.

The other sponsorship was $20,000 from the department’s HIV, STD, and Hepatitis Section. That program had not planned to have a booth but did provide materials to two other organizations at the event, according to department emails.

Full Circle Health, an Idaho health care provider, received condoms to distribute during the festival, according to email records. And Central District Health, the local health district covering Ada, Boise, Elmore, and Valley counties, received condoms and PrEP, a preventative medicine for HIV, for festival distribution, according to department emails.

In addition, the department contracted with Injury Care EMS to provide vaccinations during the event, Forbing-Orr told the Idaho Press via email. That effort provided 189 doses of MPX vaccine, which protects against the disease caused by the monkeypox virus, and three doses of COVID-19 vaccine, Forbing-Orr said.

Central District Health staff also administered 76 MPX vaccines at The Balcony during the festival weekend, said Maria Ortega, a spokesperson for the district. Those vaccines were originally distributed by the Idaho Department of Health and Welfare to entities that requested them, though they were not distributed specifically for use during pride events, she said.

Potential lawsuit

Of all the Boise Pride 2022 sponsors, including those that rescinded their sponsorship, the Idaho Department of Health and Welfare is the only sponsor that has not paid, Williamson, the executive director of Boise Pride, said.

The department had two contracts in place with the festival, and choosing to back out on those just a day prior to the start of the festival means the department is still legally obligated to fulfill them, Williamson said.

“Breach of contract. Absolutely breach of contract,” Williamson said.

On Oct. 5, Williamson sent an email to Jeppesen asking the department to make good on its contracts, but said he reduced the amount invoiced to 75% of the original amount for both the Project Filter and the HIV, STD, and Hepatitis sponsorships.

Williamson’s email discusses how in his understanding, the funding that would have been coming from Project Filter and the HIV program was federal funding those programs had at their discretion to distribute in the fulfillment of their public health objectives. The department still had a presence at the festival through its vaccination booths, and the department’s presence is essential for being able to directly reach members of the LGBTQIA+ community about health issues, Williamson said.

“It was unfortunate that partisan pressure from certain extremist members of the Idaho GOP and their supporters were able to get in the way of that mission and severely damage the years of goodwill and trust-building that your department has developed with the Idaho LGBTQIA+ community,” Williamson’s email said.

“It is easy to be a ‘supporter’ when things are all butterflies and rainbows, but when things get muddy and difficult, that is when support is truly needed and most impactful,” another part of Williamson’s email said. “The citizens of the LGBTQIA+ community and their allies will notice that inaction, and they will remember it.”

On Nov. 15, Boise Pride Board President Michael Dale followed up on Williamson’s email, saying “we have yet to receive any response from anyone at the (department) other than your letter on September 8.”

“We are fine if you do not wish to sponsor or be involved with Boise Pride in the future, but this doesn’t resolve the obligation that is still due from 2022,” Dale said.

On Nov. 17, Sen. Melissa Wintrow wrote to Jeppesen, saying, “I understand that after the head of the GOP started to threaten businesses, that many folks pulled sponsorships but for a state that values contracts, I would hope that my colleagues would understand the importance of following through on them.”

“I know that you are … doing what you are directed to do, but once again, an agreement/contract is an important part of business,” Wintrow said.

On Dec. 8, Jeppesen replied to Williamson and Dale, saying, “it remains the position of the department that it retains the ability to ultimately determine how best to maximize the use of program sponsorship funds, which includes the withdrawal of our sponsorship funding from any applicant if that becomes necessary.”

Forbing-Orr declined to provide an updated comment on the department’s stance for this story.

The politics of bowing out

The events that unfolded around DHW’s sponsorship of the festival and being asked to renege on its sponsorship are unsurprising in the context of Idaho politics in recent years, said Luke Fowler, associate professor of administration and public policy at Boise State University.

Some of the controversies in the state since the beginning of the COVID-19 pandemic, such as whether to mask, have boiled down to how people view the role of government, Fowler said. Drag kids performance aside, some may still see DHW’s public health mission and the strategies it employs to achieve it as government overreach, Fowler said.

“Of course there are issues of discrimination against the LGBTQ community here, but (the controversy was) also about how we are spending public resources and whether DHW should be doing this or not, whether or not this is the role of a government agency,” Fowler said.

It is true that federal agencies give money to state government agencies to spend, including health departments, Fowler said. But state agencies are still at the whim of their governors, legislators, and local government.

“We’re seeing this more and more, where state legislators and the governor are saying do one thing, and federal institutions or laws are saying do something else,” Fowler said. “That puts these bureaucratic agencies in really sticky situations.”

As for why the governor’s office did not publicize its involvement in the decision, Fowler said that while he could not say for certain, it represents a classic political strategy: shifting blame away so as to not be perceived as the center of controversy. Plus, Little likely did not want to pit himself against the will of those who are farther right in his party, Fowler said.

Williamson pointed out that the kerfuffle occurred two months away from the November general election, in which Little was running for reelection.

Fowler said he has not personally spoken with anyone in the governor’s office about the events, but added, “I imagine (Little) looked at it and was like, ‘look, this is not worth the fight … let’s save our political capital to have fights over scholarships, or jobs, or something else.’”

Lessons learned, looking to the future

Children have performed at the festival since its inception 32 years ago, Williamson said.

“Like I’ve said countless times before, there’s a difference between the drag show that you and I would expect to see in a park on a Sunday afternoon with kids performing versus one on a Friday night at 10 where we’re paying a $20 cover and getting alcohol and there’s no kids,” he said. “It’s no different than any other type of performative art, whether it’s musicals, plays, or whatever.”

“(The far right) is just trying to spin it to fit their narrative, and it just happens to be their soup du jour this year that it’s kids and drag and grooming,” Williamson said. “It’ll be something different next summer because this can’t stick forever.”

However, Williamson said he would have phrased the description of the event differently. It read, “You’ve seen the Queens and Kings and now it is time to see the kids. A drag show like none other the drag kids range from 11 to 18 and are ready to bring it all to the Boise Pride festival stage! Come and cheer them on as they bring drag to the younger generation!”

He said he sees why it seemed ambiguous to sponsors what the event would actually entail, particularly when viewed through the narrative of Moon and other politicians.

In reality, the performance was going to feature around five children: two 18-year-olds, two 16- or 17-year-olds, and one 11-year-old, Williamson said. The 11-year-old was slated to perform with their mother, who is a local drag performer, Williamson said. The description of the event could have included more language about the event being all-ages and family-friendly, he said.

One of Williamson’s goals as executive director is to organize additional Boise Pride events throughout the year beyond the diversity prom and September pride weekend.

“Those events are amazing and our community needs those,” Williamson said, “but we have to be a bigger presence in this community than just those two things. It has to be more year-round, whether it’s events, whether it’s outreach, whether it’s resources for mental health. … I have a plethora of ideas, just have to figure out a way to get there.”

From the Idaho Press

From the Idaho Press

Before Idaho Attorney General Raúl Labrador took office at the start of this year, citizens could file public records requests via an online form. That capability appears to have disappeared from the attorney general’s office’s website.

The office wrote on its website that public records requests are accepted by mail. But for Idahoans who want access to those records, requests can apparently be made over email as well. The Idaho Press submitted an emailed request last week and was given a 10-day extension letter on Monday afternoon.

Public Information Specialist Emily Kleinworth said the attorney general’s office’s policy on public records is to follow state law. When asked if the AG’s office accepted requests that aren’t mailed, Kleinworth said this was the office’s official response:

“Are you serious? We’re literally responding right now to public record requests you submitted by email.”

Betsy Russell, the president and co-founder of Idahoans for Openness in Government and president of the Idaho Press Club, said requiring requests to be submitted only by mail would be outdated.

In 2006, Russell said, the Legislature passed a bill requiring agencies to accept public records requests by email.

“The point of the public records law is that the records belong to the public,” Russell said. “The rules are designed to make them easy to access.”

Labrador’s office did not reply to a question asking if the website would be updated to include that emailed records requests would be accepted as well.

Former Idaho attorney general Jim Jones said that while he was in office from 1983-1991, every letter he wrote was in a folder that people could access without having to make a records request. 

“But if they made one, they got it,” Jones said. 

Jones said Lawrence Wasden, who was Idaho’s attorney general from 2003-2022 and was defeated by Labrador in the 2022 primary election, had been a “real champion in open government,” but that the Legislature had, over the years, added more and more exemptions to the list of public records that can be requested. 

“Government runs best when it runs in the open and people know what it’s doing, and have the ability to get quick access to information,” Jones said. “But the problem is that you have a branch of the Republican Party that doesn’t like that too much.”

Want to submit a records request?

Public records requests can be submitted via email to, emily.kleinworth@ag.idaho.gov, or by mail to:

Office of the Attorney General

State of Idaho

700 W Jefferson St., Suite 210

P.O. Box 83720

Boise, ID 83720

From the Idaho Press

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — Twenty regional and national news organizations have formed a coalition to ask a judge to narrow a gag order in the case against a man accused of killing four University of Idaho students.

The coalition, which includes The Associated Press, contends that press access to law enforcement officers and other officials involved in high-stakes criminal cases provides the public with important context and a better understanding of how the criminal justice system operates.

Bryan Kohberger, 28, is charged with four counts of first-degree murder and burglary in connection with the stabbing deaths in Moscow, Idaho. Prosecutors have yet to reveal if they intend to seek the death penalty.

“This order is unnecessarily sweeping and broad and severely impedes the public’s understanding of a significant criminal investigation that profoundly impacted the community,” said Josh Hoffner, national news director for The Associated Press.

The bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were found on Nov. 13, 2022, at a rental home across the street from the University of Idaho campus. The slayings shocked the rural Idaho community and neighboring Pullman, Washington, where Kohberger was a graduate student studying criminology at Washington State University.

The case garnered widespread publicity, and earlier this month Latah County Magistrate Judge Megan Marshall issued a gag order barring attorneys, law enforcement agencies and others associated with the case from talking about it. On Thursday she broadened that gag order, also prohibiting any attorneys representing survivors, witnesses or the victims’ family members from talking or writing about the case.

“There is a balance between protecting the right to a fair trial for all parties involved and the right to free expression as afforded under both the United States and Idaho Constitution,” Marshall wrote in the amended order. “To preserve the right to a fair trial some curtailment of the dissemination of information in this case is necessary and authorized under the law.”

Dan Shelley, the president of the Radio Television Digital News Association, said there are other ways to ensure a fair trial. The national association is a member of the coalition.

“Courts across this country are frequently able, even in the highest of high-profile cases, to find ways to balance defendants’ rights with the rights of the public to have vital information. There is no reason why this court can’t do the same,” Shelley said.

The media coalition includes several newspapers and television stations in the Pacific Northwest, including The Seattle Times, Idaho Statesman, KHQ in Spokane, Washington and KTVB in Boise, Idaho. The coalition is expected to file court documents opposing the gag order in the coming days.

The case drew worldwide attention, particularly from people who styled themselves as sleuths on social media sites. In the weeks before Kohberger’s arrest, some of those sleuths publicized their own theories about the slayings online. The theories often wrongly placed the blame on the victims’ surviving friends, relatives or others. News organizations’ interviews with investigators often worked to quash some of those rumors and counter misinformation spread online.

Such publicity often presents a conundrum for judges, who work to protect the defendant’s right to a fair trial. Courts sometimes feel that controlling the flow of information around a criminal case — by forbidding those involved from talking about it — is an effective way to limit publicity and help protect that fair trial right.

But gag orders can infringe on the First Amendment rights of the public and of the people involved in the case. News organizations that cover the courts serve a watchdog role, keeping the public informed about how the judicial branch operates.

Conversations with the officials involved in criminal cases helps journalists understand the nuances of legal arguments and the technical steps of court proceedings so their coverage can be fair and thorough, said media coalition member and Idaho Press Club President Betsy Russell.

“We’re not lawyers for the most part, nor are our readers, and those explanations can help make sure that inaccurate information isn’t spread about what’s happening in our halls of justice,” Russell said.

The U.S. Supreme Court has found that gag orders do infringe on the public’s right to know what is going on in the nation’s courtrooms, but the high court has also said that some gag orders are permissible, as long as they are the least restrictive way to ensure a fair trial and are narrowly tailored to achieve their aim.

The first gag order issued by Marshall on Jan. 3 did not include any stated reason for why she felt the gag order was needed. It prohibited the parties in the criminal case, “including investigators, law enforcement personnel, attorneys, and agents of the prosecuting attorney or defense attorney,” from making any statements outside of court other than directly quoting actual court records filed in the case.

Notably, both the prosecution and defense attorneys had filed a document roughly two hours earlier saying they agreed to the creation of a gag order and wanted it to include investigators and law enforcement.

“This Court has both a constitutional duty and the inherent authority to ‘minimize the effects of prejudicial pretrial publicity’ and ‘to ensure the efficacious administration of justice,’” Kohberger’s defense attorney Anne Taylor and Latah County Prosecutor Bill Thompson wrote.

In Thursday’s amended gag order, Marshall expanded the prohibition, adding any attorneys representing witnesses, victims or victims’ family members to the list.

The amended order also prohibits any statement that is not a direct quote from court documents, and specifically calls out a number of specifically prohibited types of statements, including “any opinion as to the merits of the case or the claims or defense of a party,” and any statements about “evidence regarding the occurrences or transactions involved in the case.”

Kohberger is scheduled for a five-day preliminary hearing starting June 26.

From the Associated Press

From Idaho Reports/Idaho Public Television

By Ruth Brown, Idaho Reports 

In its first meeting Tuesday, the House State Affairs Committee introduced a bill to implement a rule change to prevent legislators from repeatedly trying to call a piece of legislation back to the floor.  

The bill comes after former Rep. Ron Nate and allies spent much of the 2022 legislative session trying to call back a personal bill to eliminate the grocery tax to the House floor using the rule, bypassing a committee hearing.  

Rep. Britt Raybould, R-Rexburg, introduced the amended change to House Rule 6. There would also be smaller changes to Rules 8, 10 and 17 to comply with the potential changes to Rule 6, should the bill pass. 

Raybould, who defeated Nate in the May primary, explained the bill would also put a cap on how many personal bills a legislator may introduce. The committee amended the number from two to three personal bills per legislative session. A personal bill is introduced by an individual legislator, rather than a group of legislators in a committee. 

Raybould said she believed it was a disservice to the public to bypass full legislative hearings. 

Rep. Heather Scott, R-Blanchard, took issue with the legislation because committee chairmen have the authority to not hear a bill in committee. 

“What you really get are someone that represents a district, that may not be Eastern Idaho, that may not be Northern Idaho, that may be a chairman from Downtown Boise and so they are making decisions that they don’t like your idea or your citizens’ idea and refuse to hear them,” Scott said.  

 Scott supported Nate’s efforts last year to repeatedly bring back his personal bill. 

“This bill is drafted intentionally to be narrow to focus on this specific issue,” Raybould said in response. “I would anticipate that if there was interest in pursuing the hearing of all committee bills that it should go through the rule change process as well.”  

Chairman Rep. Brent Crane, R-Nampa, co-sponsored the legislation. During discussion, he referenced last session’s repeated attempts to bring back a grocery tax personal bill from the House Ways and Means Committee. 

“You and I agree on the charade that happened last session and it was wrong and it was misleading to the public,” Crane said during discussion. “Government is confusing for individuals already and it’s my desire to make this be more a transparent and easy to understand process.” 

The bill will now go before the full House of Representatives before a vote.  

From Idaho Reports/Idaho Public Television

From the Idaho Press

By CAROLYN KOMATSOULIS

Four hours before the city of Boise announced it was putting Office of Police Accountability Director Jesus Jara on administrative leave, Jara sent a meeting invite to Interim Police Chief Ron Winegar. He accepted, according to emails obtained via a public records request.

But that meeting never happened.

Before 4 p.m. that day, Jara was placed on leave. The following Monday, Winegar declined the outstanding meeting invite.

Four days later, the city council voted 5-1 to remove Jara from his position.

It’s unclear exactly what Jara’s meeting with Winegar would have been about. But 10 days earlier, Boise Mayor Lauren McLean and another staff member told Jara to meet with Winegar and the city’s legal team to address a policy about OPA’s practice of reviewing police body camera footage.

“In early November, my office learned that Jesus Jara was conducting unauthorized surveillance of community members. I believe he was effectively exploiting his access for audits to the system by randomly viewing over 8,000 videos, almost exclusively without cause,” McLean said in a release after Jara was removed from office. “This is a serious violation of the privacy of our residents and a worrisome erosion of the trust we intended to build with the OPA model of oversight.”

For many, this move made little sense. Boiseans and others discussed what happened with a bit of confusion. Shouldn’t the director of police accountability be watching what the police do? Wasn’t that his job?

The Idaho Press spoke to two people with experience or expertise in criminal justice and law enforcement about privacy and body cameras.

Privacy issues for victims and officers

In 2014, while Gary Raney was Ada County Sheriff, his office adopted body-worn cameras. By the end of the rollout, 70 deputies were to have body cameras. As of December 2022, there are 165 body cameras assigned to deputies, according to Ada County Sheriff’s Spokesman Patrick Orr.

“The key to managing body-worn cameras is you want to make sure that they are on at the right time and off at the right time,” Raney said. “That can be a little tricky.”

As a general rule, the body camera should be on when police are having an enforcement contact, Raney said.

“But then the problem started coming up. What if I left my body-worn camera on when I went to the restroom?” Raney said. “Or more officially, do we record domestic violence victims? Do we record rape victims? Do we record children and key witnesses?”

By the time of rollout, the sheriff’s office decided not to record interactions with crime victims, cooperative witnesses, confidential informants and undercover officers, among others.

“There are privacy issues that you should take care of. … I think we have to respect people’s privacy, but at the same time, capture the real evidence,” Raney said. “It’s a delicate balance.”

At the time, some of the deputies and officers and troopers were concerned about being “spied on” and that they might get in trouble. But often the body-worn camera vindicates a deputy from a complaint, Raney said.

The most important privacy issue is sensitive victims like rape victims. In the most “horrid” moment of someone’s life, Raney said it’s disrespectful and retraumatizing for the rape victim to then know the footage is out there.

But another level of privacy is officer privacy. Raney brought up an example of what would happen if an officer forgot their camera was on while they changed their clothes. Most policies don’t allow officers to edit footage, he said. But often a supervisor or higher can go in and edit footage, though there has to be documentation of what was on the footage. All are appropriate policies, Raney said.

When it comes to recording, it’s hard to predict every type of victim or witness.

“Most all policies support some limited amount of officer discretion in the recording, and that is not pointed toward enforcement contacts, that’s pointed toward vulnerable victims and witnesses and respecting their privacy,” Raney said.

It can be hard to come up with a policy that encapsulates every situation a police officer ends up in, according to Boise State Professor of Criminal Justice Lisa Growette Bostaph. But there are ways to place boundaries around the discretionary decision.

When it comes to privacy, Growette Bostaph echoed Raney’s points about not retraumatizing people, especially if the videos are released to the public.

“Officers are often responding to traumatic situations of citizens. That could be a car accident, it could be an overdose,” she said. “Now it’s being shared with the world. And so that forces them to relive that trauma over and over again and it really exploits them because no one knows exactly how that body camera video is going to be used once it’s out into the public realm.”

However, there are other times when releasing the body camera footage can be required to retain their legitimacy among citizens. It can also be a form of accountability.

There can also be concerns about internal viewing of body camera footage. For example, the ACLU has objected to allowing any officers watching the footage of an officer-involved shooting before writing up a report about it. Growette Bostaph said this is likely because the goal is to find out the officer’s perception. The question is what made them shoot, not what the camera saw.

Growette Bostaph said there can be a place for randomly watching body camera footage as part of an officer’s annual evaluation. The sample could be used to review the officer’s interpersonal skills, adherence to policies, and strengths and weaknesses.

Many evaluations are structured according to department policy and sometimes union contracts, depending on the department. The review is usually tied to an annual evaluation so it doesn’t get considered a fishing investigation.

Citizen complaints, internal affairs complaints, an officer-involved shooting or annual evaluations can all be reasons to look at body camera footage.

“It’s structuring discretion. It’s just structuring supervisory discretion,” Growette Bostaph said. “It is tied to specific reasons for viewing that body cam footage. And I think that really would be considered best practice, is structuring discretion.”

Lawsuit and controversy

Jara’s firing was the latest in a series of controversies for the city of Boise and the Boise Police Department, including an ongoing investigation into an officer with white supremacist ties and the September resignation of former police chief Ryan Lee.

Jara’s attorney filed a lawsuit in district court on Dec. 12, alleging Boise interfered with the OPA’s investigation into Lee and then retaliated against Jara for recommending Lee be placed on leave, KTVB reported.

In a statement after Jara was fired, Jara’s counsel said the city council’s move was a “bold and blatant act of retaliation in violation of Idaho’s Whistleblower laws.” Jara acted in accordance with his duties and authority, the statement said, and is confident his decisions and judgment will “withstand the tests presented by forthcoming litigation.”

The Idaho Press requested any internal or external complaints against Jara via a public records request. The city said it could not find any.

From the Idaho Press

From the Idaho Mountain Express

By EMILY JONES

A Custer County judge dismissed most of a defamation lawsuit from Stanley-area ranch owner Michael Boren on Tuesday afternoon, arguing that three out of four defendants named in his suit—including two Blaine County officials—had been protected by the First Amendment when they publicly criticized his application for a private airstrip last year.

Boren’s Hell Roaring Ranch sits on a scenic easement on the west side of state Highway 75, about 15 miles south of Stanley.

The remote site includes a $1.1 million private hangar built to house the ranch owner’s two-seat American Champion plane and six-seat Eurocopter helicopter, according to a report from ICF Builder Magazine.

Boren, 60—the cofounder of billion-dollar tech company Clearwater Analytics—applied to the Custer County Planning and Zoning Commission last year to officially designate a strip of his property as a private landing area.

The P&Z approved his permit application in May 2021, despite receiving pushback from hundreds of residents and more than 600 comments in the span of a week. The Custer County Commissioners voted to uphold the P&Z’s verdict three months later, in August 2021, on the condition that the airstrip only service a limited flow of general-aviation and emergency air traffic.

Between those decision points, however, a group of concerned citizens from Blaine and Custer County submitted an appeal to the P&Z in which they claimed that air traffic at Boren’s airstrip would degrade the scenery, wildlife habitat and overall outdoor recreation experience of the SNRA.

The group also claimed in their petition that Boren had violated state and federal environmental regulations, including the Clean Water Act, when building his airstrip and associated hangar facility. Their appeal was unsuccessful.

Original lawsuit cited harm to Boren’s reputation
According to a 21-page lawsuit that Boren filed through his attorney, Tom Banducci, in May 2022, three members of the opposition group—Blaine County Commissioner Dick Fosbury, former Blaine County Commissioner Sarah Michael and Stanley first responder Gary Gadwa—continued to spread misinformation about the airstrip and its legality after Boren’s conditional-use permit was approved.

Banducci wrote that the defendants had promoted the “falsehood” that Boren’s airstrip was an “airport,” and made disparaging comments that incited ridicule and even death threats against Boren’s family.

Their comments to the media and general public ultimately forced Boren to seek a declaratory judgment deeming their speech “defamatory,” and therefore unprotected by the First Amendment, Banducci stated on behalf of his client.

Boren also requested a jury trial to recover damages “equal to the amounts” that he spent attempting to preserve his reputation, “as well as general damages in an amount to be proved at trial,” Banducci wrote.

“Left with no options, Boren has resolved to repair his reputation in the courts,” Banducci stated in the original complaint.

In the same filing, Boren sued a fourth defendant, Boise filmmaker Jon Conti, over a YouTube video that Conti had uploaded entitled “The Billionaire Building a Private Airport in the Sawtooths.” The filmmaker allegedly referred to Boren as an ‘a–hole’ who “lies, because that’s who he is,” and has since deleted the video.

Conti responded to the suit by filing a counterclaim against Boren. Records show that the matter between Conti and Boren is still pending in court.

The matter involving Fosbury, Michael and Gadwa came before 7th District Judge Stevan H. Thompson for resolution on Sept. 12 in response to motions to dismiss filed by Fosbury and Michael’s attorneys in July. (Gadwa signed on to both Fosbury and Michael’s motions to dismiss later in the summer.)

On Tuesday, following testimony at last month’s motion-to-dismiss hearing, Thompson agreed to dismiss all claims against Fosbury, Michael and Gadwa on the grounds that they had the constitutional right to speak out against projects that are of interest to the general public, and should be able to air their grievances without fear of retribution.

“In this case, there is the potential for a great chilling effect on constitutional rights not just for these named defendants but for all the members of the public who spoke on this issue, which was undoubtedly a matter of public concern in which they were entitled to involvement,” Thompson wrote in his decision this week.

Petitioning activity protected, defendants argue
Through their separate attorneys—Michael Elia, representing Fosbury, and Deborah Ferguson, representing Michael—Fosbury and Michael raised slightly different arguments in their motions to dismiss. Both motions were filed separately but concurrently on July 5 and joined by Gadwa later in the summer.

At both the September motion-to-dismiss hearing and in written documents, Elia argued that Fosbury had complete immunity from any defamation allegations while debating and acting in his official capacity. Fosbury’s statements were protected by law because they were made in “quasi-judicial proceedings,” and did not directly harm Boren, Elia said.

“Ultimately, [Boren] is not entitled to damages because Defendant Fosbury and members of the public-at-large disagree with his use, and prior use, of his airstrip and exercised their due process right to express that disagreement,” Elia wrote. “Plaintiff’s claims should be dismissed with prejudice.”

Ferguson argued that her client’s speech was protected by the First Amendment and that Boren’s lawsuit represented abuse of the legal system.

“There is a special name for this type of frivolous lawsuit and others like it that attempt to chill participation in the public process. They are called SLAPP [Strategic Litigation Against Public Participation] suits,” she wrote. “To be clear, the objective of SLAPP suits is not to win them, but to use litigation to intimidate an opponents’ exercise of rights of petitioning and speech.”

Gadwa, the current commander for Sawtooth Search and Rescue, testified last month from a remote fire lookout tower. He explained that he was representing himself virtually because his attorney, Keith Roark, had to withdraw due to illness.

Gadwa told the court that he never spoke in a defamatory way toward Boren.

“When [Boren] applied for the airport permit with Custer County, I was asked whether his permit for a landing strip on his ranch would be beneficial to Search and Rescue, because of my extensive knowledge … I said no, because we don’t need it for landing a helicopter and with two nearby airports readily available as well,” Gadwa said. “This statement was in no way personal.”

Gadwa also noted that he had been surprised to be sued by Boren, having gotten to know him in his capacity as an Idaho Fish and Game law enforcement officer.

“I have known Michael Boren since he was a very young fellow. As a game warden I gave him and his younger kid brother fishing pointers and tips numerous times,” Gadwa said.

Judge invites appeal to Supreme Court
Thompson, outlining reasons for dismissing the case, explained in his Tuesday decision that he could not rule the defendants’ speech “defamatory” because anyone who participates in a public governmental hearing is protected by “absolute litigation privilege.”

Even statements made before and after hearings to third parties—that is, if they are related to the subject of the proceedings and not made with malice—are protected by the privilege, the judge said.

“For the statements outside the [conditional-use permit] hearing and appeal, Boren’s [complaint] makes clear that each and every alleged statement of Michael, Fosbury, and Gadwa were related to and in the course of the CUP process,” Thompson wrote.

Thompson also agreed with Ferguson’s conclusion that Boren’s lawsuit had the characteristics of a SLAPP suit, as defined by other states, but noted that there is no anti-SLAPP statute in Idaho.

Therefore, he said the Idaho Supreme Court should weigh in “on how courts in Idaho should protect such important constitutional rights during what may be a SLAPP suit.”

“While the court acknowledges that a typical motion to dismiss does not permit such oversight from the court, it feels necessary in this case for the court to take a gatekeeping role in such a novel and potentially harmful case,” Thompson wrote.

Banducci told the Express over the phone and by email on Thursday that he was “disappointed” by Thompson’s decision to dismiss the action against the defendants, but that he believed legal proceedings to be far from over.

“However, we understand the court’s desire to obtain direction from the Idaho Supreme Court on issues in this case,” he said. “Mr. Boren continues to sustain damage as a result of the defamation described in the complaint. It’s our intention to appeal this order and have the matter sent back for trial after the Idaho Supreme Court has spoken.”

Michael told the Express that she was “relieved” by the verdict and hoped to have her legal fees reimbursed.

“I also hope that Idaho will enact a SLAPP statute that will expedite the process to defend against these types of frivolous lawsuits,” she said.

Gadwa agreed.

“Idaho desperately needs an anti-SLAPP law to stop this kind of frivolous attack on our First Amendment rights,” he wrote by email. “Sadly, the U.S. Forest Service did not stand up against this undesirable activity on the Sawtooth NRA.”

From the Idaho Mountain Express