Moon bars news media from Idaho GOP convention

From the Idaho Capital Sun

GOP Chairwoman Dorothy Moon said first priorities are preserving access for Republicans, protecting privacy

BY: CLARK CORBIN

News reporters were not allowed to observe any committee meetings or events during the first day of the Idaho Republican State Convention on Thursday at Coeur d’Alene Resort.

The state convention takes place every two years. Republican delegates from counties across Idaho will spend three days voting on proposed rules, resolutions, platform changes and, finally, electing the party’s chairperson.

News reporters may not be allowed to observe or attend any of it — a departure from allowing reporters to observe the general sessions in the past. 

Reporters who checked in at the convention’s registration desk Thursday morning – including two reporters from the Idaho Capital Sun – were directed by volunteers and staff to a designated media area located in a windowless corner of a hallway at Coeur d’Alene Resort. 

Idaho Republican Party officials announced last week and reiterated to news reporters Thursday that reporters would not be allowed to attend any convention meetings, but would be allowed to interview delegates and Republican officials before and after meetings.

The Idaho Republican Party also blocked reporters who are not registered Republicans from attending the Idaho Republican Presidential Caucus on March 2.

Idaho GOP chairwoman defends decision, saying Republican party is a private association

During an interview Thursday outside Coeur d’Alene Resort, a reporter with the Sun asked Idaho Republican Party Chairwoman Dorothy Moon, “When we talk about transparency, is that part of the equation at all?”

“Yeah, not really,” Moon said, laughing. “Not in my mind. In my mind, this is a private group. It’s a private association. And, no, I don’t want to sit here and give you all of our platform changes or any rules or resolutions, such as our strategy on fighting ranked-choice voting, because then the Democrats have that information and then they are going to try to counter us.”

The Sun pointed out that the Idaho Republican Party has already publicly posted its proposed resolutions, platform changes and rules on the Idaho Republican Party’s website.

“Not all of it will (be published online),” Moon responded. “I mean but not the nuances that occur in these meetings.”

At least one elected Republican legislator who attended the convention was surprised by and opposed the decision to exclude news reporters.

“Who in their right mind thinks it is a good idea to lock the press out?” Rep. Stephanie Mickelsen, R-Idaho Falls, said in an interview in the convention hallway.  

“I think (keeping the press out) is reflective of a lot of things going on in the state,” Mickelsen added. “Anytime you don’t want the press to shine light on what you are doing, I think there is a problem. I think the people get a better process when we have press involved.”

“You can say they are right or left or whatever,” Mickelsen said. “But at the end of the day, an informed electorate — which is what we need the press for — helps us and constituents and the people in this state get good information to make good decisions. I think one of the things that people have lost is their constitution of truth. By journalists not being allowed to be a part of and view and report that back, it’s kind of scary honestly.”

Ultimately, Moon said access will be her decision. Moon told the Sun on Thursday she has not decided whether reporters will be allowed to attend or observe the convention’s general session on Friday or Saturday, when delegates vote on rules, resolutions, the party platform and elect the chairperson and leadership team for the Idaho Republican Party. 

Moon told the Sun one of the reasons she didn’t allow reporters into the convention Thursday is because at the last convention two years ago in Twin Falls she didn’t like the way some reporters covered the event.

“In Twin Falls when I ran for this position, I remember the press was back there, and there were some screen shots – and I don’t know if you remember it, you should, it wasn’t involving you but somebody else – and they were texting information to somebody in the Democrat Party and it wasn’t good,” Moon said Thursday. 

Moon declined to identify the reporter. It also wasn’t clear why Moon would have screenshots of a reporter’s phone or text messages. However, it is common practice in journalism for a reporter working on any story to reach out to the other side of a story for comment, including reaching out to a different political party.

“That concerns me, the breach of confidence with the press that they would actually put information out to defame or demean or put a bad light on the event that we just had in Twin Falls,” Moon said.

“There’s no room,” Moon said of Thursday’s meetings. “I’m not gonna let you in. We can’t even get our own people in.”

“We’ve got to see how many people are there. I mean, we’re at capacity right now,” Moon said of Friday’s and Saturday’s meetings. “And, no, the press will not come in when I’ve got people who have driven all the way from southeast Idaho to attend. And I know you drove far, but these are people who have a right to be in there and vote and listen.”

“I don’t want a distraction. I don’t want people to be playing for the cameras or playing for the media,” Moon added. “I want them to get their work done.”

If Moon bans reporters from the convention’s general session, it would represent a departure from the norm of recent Republican conventions. In 2022, former Idaho Capital Sun reporter Kelcie Moseley-Morris was allowed to attend and cover the general session of the convention, although she was not allowed to attend committee meetings. 

“The platform discussions were closed, but the general session was open,” Moseley-Morris said in a text message to the Sun.

In the 2014 Idaho Republican State Convention in Twin Falls, reporter Clark Corbin and other journalists were also allowed to attend the general session and some committee meetings.

This year’s Idaho Republican State Convention continues Friday with more committee meetings at Coeur d’Alene Resort and a general session at North Idaho College. 

The Idaho Democratic Party State Convention runs June 22 and June 23 in Moscow.

From the Idaho Capital Sun

Revelations from Idaho Supreme Court hearing in Labrador-UI open meeting lawsuit

From Idaho Education News

by Kevin Richert

An Idaho Supreme Court justice Thursday floated a new and confounding question about the proposed University of Phoenix acquisition: Did the State Board of Education pay $1.5 million for consulting before greenlighting the deal?

State Board officials were quick to say they never paid for due diligence work, which would have been covered through tax dollars.

The due diligence question came up during oral arguments, as the Supreme Court took up an open meetings lawsuit against the State Board. Attorney General Raúl Labrador has argued that the board broke state law when it held three closed-door meetings to discuss the University of Idaho’s $685 million plan to purchase Phoenix. The State Board gave the purchase the go-ahead in an open meeting on May 18, 2023.

Labrador’s lawsuit — rejected in an Ada County district court — has nonetheless thrown a monkey wrench into the bid for Phoenix, a giant for-profit online university serving some 85,000 students nationally. And if the Supreme Court sides with Labrador and against the State Board such a decision would further imperil the deal.

The Supreme Court took the case under advisement after a 70-minute hearing. It’s unclear when the court will rule.

Did the State Board pay for due diligence?

It sounded that way, at least in Thursday’s hearing.

During a line of questions, Supreme Court Justice Gregory Moeller clearly suggested that the State Board had spent $1.5 million on due diligence. And he said the spending indicated that the Phoenix talks had progressed beyond the “preliminary negotiations” that can be held in a closed meeting.

Moeller’s questions also seemed to draw a distinction between the State Board’s due diligence and the U of I’s consulting contracts, which have been a matter of public record for months. The U of I has spent roughly $11 million on Phoenix-related consulting — and as Idaho Education News reported in February, $7.3 million of this work went to U of I President C. Scott Green’s former employer, Hogan Lovells, an international law firm.

So did the State Board spend $1.5 million?

During Thursday’s hearing, the State Board’s outside attorney did not dispute Moeller’s claim, and said the magnitude of the Phoenix deal justified due diligence.

“(It’s) not an unreasonable action,” Stephen Adams said.

When State Board spokesman Mike Keckler was reached for comment Thursday morning, he questioned Moeller’s version of the facts.

“Neither the board nor the board office spent funding on due diligence,” Keckler said in an email. “Given that we are in a board meeting today we weren’t able to listen to this morning’s oral arguments, so we can’t comment any further on Justice Moeller’s line of questions.”

The board has been meeting in Pocatello since Tuesday for a previously scheduled meeting running through today. No board member or State Board staff member attended Thursday’s Supreme Court hearing.

The lead attorney representing the State Board, which operates as the U of I’s governing board of regents, corroborated Keckler’s account. In an email Thursday afternoon, Trudy Fouser said the board never paid for consulting or due diligence.

Familiar — and less familiar — legal arguments

Thursday’s legal arguments revolved around two snippets in the open meetings law, pertaining to the negotiations process and competition.

The State Board justified its closed meetings under a little-used piece of the law, covering “preliminary negotiations … in which the governing body is in competition with governing bodies in other states or nations.”

Negotiations. Chief Justice Richard Bevan seemed to set the tone for Thursday’s hearing with the court’s first question to Joshua Turner, Labrador’s constitutional litigation and policy chief: “When do preliminary negotiations cease and final negotiations begin?”

For much of the hearing, the justices grilled Turner and Adams about this question. Not surprisingly, the two attorneys saw the issue differently.

Turner argued that the preliminary talks end — and the public debate must begin — when there is an offer on the table. And Turner suggested that this must have happened sometime during the board closed meetings, in March, April and May 2023.

Adams said preliminary negotiations don’t end with an offer; they end when the parties begin work on a contract. And he said the preliminary phase ended with the State Board’s open meeting on May 18, 2023; that’s when the board agreed to pursue a contract, setting a $685 million purchase price.

Competition. This was the centerpiece in the Ada County trial in January, when District Judge Jason Scott ruled in the State Board’s favor. Scott said board members had reason to believe the U of I was vying against other public suitors, such as the University of Arkansas. (However, Arkansas’ board of trustees voted down a Phoenix purchase in April 2023, almost a month before the State Board endorsed a U of I-Phoenix affiliation.)

But this turned out to be a secondary issue Thursday, as the court and the competing attorneys spent relatively little time discussing competition.

Adams defended State Board members, saying they worked diligently to make sure their closed meetings were legal. And he said everything the board heard in private confirmed the U of I was in the middle of a competitive bidding process.

Meanwhile, Turner took a jab at Scott. By focusing on whether board members had reason to believe the U of I faced competition — rather than proof of actual competition — Scott used a subjective measure. As a result, Turner said, Labrador’s team had no choice but to spend hours deposing individual board members for their read on the market for Phoenix.

Transparency vs. competitive advantage

The State Board’s May 2023 vote blindsided Idahoans who knew nothing about a potential Phoenix purchase, Turner said. And that preempted the process the open meetings law is designed to protect. “The public wants to be able to enter the conversation and have a seat at the table.”

In response, Adams said the board was not trying to shut out the public. Instead, he said, the board was working “to get the best deal possible for the people of the state of Idaho.”

On Thursday, the court publicly wrestled with this question of balance.

Justice Colleen Zahn said the Legislature made its objectives known, with a law designed to allow the government to negotiate behind closed doors. “It’s clearly got to be to provide the state a competitive advantage.”

Moeller acknowledged that closed-door negotiations are a great way to run a private business. “The debate I’m having internally is, is this a good way to run a state?”

The case, in broader context

The case before the Supreme Court is legally narrow: an open meetings dispute.

Its implications run deeper.

Labrador’s lawsuit, filed nearly a year ago, has prevented the U of I from financing a Phoenix purchase. The Supreme Court appeal has also kept bonding on hold.

As long as the lawsuit is active — and on Thursday, justices floated the possibility of kicking the case back to district court for another hearing — the Phoenix purchase remains in limbo.

And as EdNews first reported in May, Phoenix’s owner, Apollo Global Management, has said it now wants to talk with other prospective buyers. The U of I could receive “breakup fees” from Apollo if its Phoenix purchase falls through.

From Idaho Education News

New journalist nonprofit fights for government transparency

From KTVB

by Aspen Shumpert

The nonprofits said their goal is to help journalists and the public fight for public record requests when they’ve been improperly denied.

In the United States citizens have the right to request public records and documents from the government. But at times those requests may be improperly denied leaving, in Idaho, the only way to fight denials in court, which can be expensive.

A group of journalists in Idaho has established a nonprofit organization to assist with expenses, combat denials, and educate the public about public record laws.

“We don’t have the money to pay a lawyer every single time this happens,” Melissa Davlin, President of the Idaho First Amendment Alliance, said about fighting a denial for a public records request. 

In Idaho, public records for all government agencies are supposed to be open to the public unless specifically noted in Idaho’s public records law. 

“We’re dealing with hundreds of public employees, some of whom get dozens or hundreds of public records requests a year,” Davlin said. “And they don’t always understand the public records law.”

When a public records request you filed as a journalist or even as a member of the public is improperly denied, there are a few options to consider. 

“The vast majority of the time when somebody improperly denies a public record for citizens and journalists – or over redacts or over charges… usually we can clear that up with a phone call,” Davlin said. 

Davlin said that works most of the time, and she prefers to handle it this way when she feels a public records request has been denied improperly. 

But if a phone call to who’s in charge of getting the records to requestees doesn’t work your only choice of legal action in the state of Idaho is to sue. 

Going through the litigation process takes time and resources. But now, a group of journalists – including Davlin – are coming together to help out when this happens. 

They created the nonprofit the Idaho First Amendment Alliance. It’s set to not only educate journalists and the public through training and workshops on how to fight for records but also support financially in the fight in court. 

Davlin is also president of the Idaho Press Club, a now partner of the Idaho First Amendment Alliance – who’s taken government agencies to court before. 

“In 2019, we successfully sued Ada County to get records about the Western Idaho Fairgrounds,” Davlin said. “And then a few years ago we sued… then Lieutenant Governor Janice McGeachin over records on a taskforce that she was running. And in both cases, we won.”

But sometimes record denials go unchallenged – and fighting a denial isn’t realistic for some. 

“20 years ago, when your newsroom or my newsroom ran into an issue, a lot of times we had in-house counsel with the company, and we would be able to sue (government agencies) ourselves,” Davlin said. “Also, we would be able to pursue that independently. That’s not the case anymore. The stark reality of journalism right now is that newsrooms are shrinking, budgets are shrinking, weekly, local papers are closing down.”

Government transparency is necessary for journalists to do their jobs and for citizens to know what their government is doing, she said. 

“When we are freed up to report on what the government is doing, as opposed to spending our time fighting for records that we’re entitled to…it’s so much better for everybody,” she said. 

The nonprofit officially launched in April and the following months have been a “foundation building phase,” according to Davlin. 

“I would love to be in a place where we don’t feel like we have to fight for public records, either in the courtroom or over the phone, where everybody understands that transparency benefits everybody, both government officials and the citizens of Idaho,” she said. 

The Idaho First Amendment Alliance is actively seeking grants and fundraising opportunities. You can make a donation on their website.

From KTVB

Judge orders IDOC to disclose more information on execution chemicals

From Idaho Reports

By Ruth Brown, Idaho Reports 

Idaho U.S. District Court Judge B. Lynn Winmill issued an order Thursday that will require the Idaho Department of Correction to disclose some additional information regarding the chemicals it planned to use in the execution of Gerald Pizzuto Jr.  

The order comes following the failed execution of Thomas Creech in February. The source of the chemicals that were set to be used in that execution is still unknown.  

Pizzuto filed a lawsuit against IDOC in 2021, asking the state not to execute him with pentobarbital, due to his multiple medical conditions. He claimed it would cause severe pain and constitute cruel and unusual punishment.  

His execution has been stayed since March 9, 2023, while litigation continues.  

Pizzuto has been on Idaho’s death row since being convicted in the 1985 deaths of Berta Herndon and her nephew Delbert Herndon outside of McCall. His two co-defendants, William Odom and James Rice, were given lesser sentences for their roles in the crime.  

The Idaho Legislature in 2022 passed a law to grant anonymity to the manufacturers of chemicals the state procured for lethal injection executions. At the time, IDOC told legislators they were having trouble obtaining the chemicals. 

While IDOC will not be required to name the supplier, some additional information requested by Pizzuto’s attorneys will be supplied. 

Winmill agreed to grant Pizzuto’s request that IDOC disclose the date on which the execution drugs were obtained and supply a purchase order with a date to Pizzuto. The judge also agreed to grant Pizzuto’s request asking about the geographic origin of the execution chemicals and whether they were obtained in the United States or a foreign country and if the chemicals were imported. 

“Ultimately, the Court is left with very little information about the likelihood that answering these RFAs would result in the identification of the drug supplier,” Winmill wrote.  

Pizzuto also requested information on if the chemicals came from a “veterinary source” or a hospital, and whether the drugs were sold by a “wholesaler/distributer” or a pharmacy, and the judge granted that request. IDOC must also “to admit or deny that the execution drugs were manufactured by Akorn, a now-bankrupt pharmaceutical company,” per Pizzuto’s request.  

IDOC will also be required to provide Pizzuto with an unredacted copy of the certificate of analysis done on the chemicals. The copy given to Pizzuto in January had a redacted date.  

“They have not explained how their supplier could be identified if the Report Date is disclosed,” Winmill wrote. “Nor can the Court intuit how that date, which merely reflects when the chemical analysis was performed, is linked to the drug’s manufacture.”  

The court gives IDOC 14 days to comply with the order.  

From Idaho Reports

Judge orders Labrador to pay State Board of Education over $240,000 in open meetings case

By LAURA GUIDO

From the Idaho Press

A judge is ordering Attorney General Raúl Labrador to pay more than $242,700 in costs and attorney fees over his unsuccessful lawsuit against the State Board of Education.

Labrador had filed the case against the State Board, which also acts as the University of Idaho’s board of regents, alleging an Open Meetings Law violation in regards to the board’s closed-door meetings held ahead of the public vote to start the process of purchasing the University of Phoenix.

Ada County District Court Judge Jason Scott ordered Labrador’s office to pay $233,362.87 in attorney fees and $9,363.15 in costs in his order filed Tuesday.

“This unnecessary and unsuccessful lawsuit by the Attorney General against his own client took an enormous amount of time and resulted in a large cost to taxpayers,” the State Board wrote in an emailed statement. “The State Board is grateful to be vindicated by the Court once again. Although the Attorney General must pay those costs from his budget, it is profoundly unfortunate that taxpayers ultimately must bear the cost of this frivolous litigation.”

Labrador’s office did not agree with the decision and said in a written statement, “We disagree with the decision and expect to prevail on appeal. At the end of the day, this attorneys’ fees decision will not matter.”

Labrador has appealed the case, and the Idaho Supreme Court is scheduled to hear oral arguments June 13.

Scott determined the fees requested were reasonable and that the State Board was legally entitled to them; however, he reduced the award by $39,907.50 from what was requested because of heavily redacted billing entries from the State Board’s attorneys at Gjording Fouser. He wrote that the redactions prevented the court from being able to fully determine what work was done if it was reasonable.

“By heavily redacting its billing entries, Gjording Fouser has effectively prevented an award of attorney fees in full measure,” the judge wrote.

He rejected Labrador’s argument that hiring multiple lawyers to work on the case was duplicative or unnecessary given the nature of the case.

“This case presented novel questions of law, was fiercely litigated (by both sides), and was, based on its unique circumstances, expedited, justifying involving more than one lawyer in depositions and hearings,” Scott said.

He partially agreed with an argument made by Labrador that some of the paralegal fees were for clerical work that aren’t compensable under the law, so Scott reduced $913 from some of the requested paralegal billings.

The case revolved around whether the early negotiations conducted in closed-door executive sessions were in compliance with Idaho’s Open Meetings Law.

There are narrow exceptions to rules requiring government business being conducted in public, and the State Board used the exemption for “preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

Labrador’s office contended that the last executive session, held on May 15, 2023, and just three days before the final decision, wouldn’t be considered “preliminary” and also argued that there wasn’t competition “with governing bodies in other states or nations,” because by then, the University of Arkansas had publicly withdrawn its bid to purchase the online school.

There was a three-day trial, after which the judge dismissed the case with prejudice in late January.

The State Board’s decision to create a nonprofit entity to go out for a bond in order to pay around $685 million for the online university is still facing hurdles. This session, legal opinions sought by lawmakers found that the State Board and university may have lacked authority to create the nonprofit entity, which contradicted the University of Idaho’s attorneys’ opinions.

A bill meant to ease some of the concerns was introduced this week and would instead create an independent politic and corporate body to go for the bond and oversee the University of Phoenix and add more input by the Legislature.

A Senate committee approved the bill, but it still awaits votes from the full Senate and House.

From the Idaho Press

Botched execution of serial killer in Idaho puts focus on capital punishment secrecy laws

From the Associated Press

BY REBECCA BOONE AND GENE JOHNSON

BOISE, Idaho (AP) — In 2012, two Idaho prison officials chartered a private plane and flew to Washington state with thousands of dollars in cash.

They met with a pharmacist behind closed doors and bought the drug for a convicted murderer’s lethal injection.

Only a years-long public records lawsuit revealed the pharmacist’s name, the pharmacy and other details of the exchange. After prison officials said the pharmacist’s exposure had scared away other lethal drug suppliers, Idaho lawmakers barred such information from getting out again.

Idaho tried and failed Wednesday to execute Thomas Eugene Creech, a 73-year-old serial killer who had been in prison for 50 years. Neither his attorneys nor the public knew where the state obtained the drug or the exact qualifications of his executioners.

Opponents say secrecy laws are are a significant hurdle to accountability and make it hard to ensure that the procedures aren’t unconstitutionally painful, whether the deaths are carried out successfully — as Texas did Wednesday in the case of Ivan Cantu — or botched like Creech’s.

Idaho long kept the identities of execution team members and drug suppliers secret but judges were still able to force disclosure of the information if it was relevant to lawsuits or appeals. The new law prohibits state officials from disclosing the information, even if under court order.

The law also prevents professional licensing boards from taking disciplinary action against people for participating in executions.

Such secrecy is typical among states that impose capital punishment, including Texas, where lawmakers passed a similar measure in 2015 to ensure drug suppliers did not face retaliation or harassment for cooperating with executions.

“States are saying, ‘We don’t need to show you the information about … how we find or drugs or the training of the prison staff,’” said Robin Maher, the executive director of the Death Penalty Information Center, a nonprofit that tracks executions. “And then, when things go wrong, they can’t be held accountable.”

Creech was convicted of five murders in three states and suspected of several more. He has been in custody since 1974 and was already serving a life term when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which he was to be executed.

When his appointed hour came at 10 a.m. Wednesday, Creech was wheeled into the execution chamber and strapped to a table. Medical personnel poked and prodded at his arms, legs, hands and feet for nearly an hour, making eight attempts, but they couldn’t find a vein they thought would hold up long enough to deliver the fatal dose. He was returned to his cell.

It is unclear whether or when the state might try again, or how. Like other states concerned about the availability of lethal injection, Idaho recently passed a law allowing for firing squads as a backup, but the state has yet to write protocols for using that method or build a facility where it could shoot people to death. It has not approved the use of nitrogen gas, a method used for the first time early this year in Alabama.

Creech’s execution team comprised volunteers who, according to Idaho execution protocols, were required to have at least three years of medical experience, such as having been a paramedic, and to have “current venous access proficiency.” They were not necessarily doctors, who famously take an oath to “do no harm” — though Idaho Department of Correction Director Josh Tewalt later told lawmakers that the executioners regularly use their IV skills to save lives in their day jobs. They wore white balaclava-style coverings to conceal their faces.

Tewalt defended the state’s approach, saying the department ensures execution drugs are acquired lawfully, provides test results showing their authenticity, and ensures medical members of the execution team meet or exceed required qualifications.

“I would argue we are very transparent about any information that speaks to the integrity of the process,” said Tewalt. “What we won’t do is tell you their names.”

Tewalt also disagreed with characterizing the attempt as “botched” — stopping the execution after the failed IVs prevented the process from truly going awry, he said.

Creech, according to his attorneys, suffers from several conditions that could have made vein accessibility challenging: Type 2 diabetes, hypertension and edema. It can also be more difficult for older people to have IVs inserted, as their veins can be less stable.

“This is precisely the kind of mishap we warned the State and the Courts could happen when attempting to execute one of the country’s oldest death-row inmates in circumstances completely shielded in secrecy,” Creech’s attorneys, with the nonprofit Federal Defender Services of Idaho, said in a written statement.

Among the arguments they made in their unsuccessful last-minute petitions to the U.S. Supreme Court was that the secrecy violated Creech’s due-process rights and could constitute cruel and unusual punishment if the lethal drug, the sedative pentobarbital, was of poor quality and caused unnecessary pain or complications.

Idaho did confirm the drug would not expire until February 2025. A purchase order obtained by the Idaho Statesman showed the state spent $50,000 for 15 grams of pentobarbital — 10 grams of which were prepared for use in Creech’s execution. The name of the supplier and purchase date were blacked out.

Idaho also provided what defense attorneys described as a heavily redacted certificate of analysis purporting to show the drug’s validity, but they said the document lacked so much information that it was impossible to verify.

Creech’s failed execution marked the sixth time since September 2009 that an inmate has survived an attempted lethal injection because the executioners couldn’t place an IV. In the 2018 case of Doyle Lee Hamm in Alabama, executioners tried and failed for 2.5 hours; in the process they punctured his bladder and penetrated his femoral artery. Hamm died in prison three years later of cancer.

Still, failure to administer lethal injection is the exception. Over that same period, states successfully executed just over 400 people.

In Texas, condemned inmates sued in 2014 over the state’s refusal to provide information about execution drug suppliers that they said they needed to verify quality. In response, lawmakers banned the disclosure of such information, saying suppliers could face harm, and the Texas Supreme Court upheld the law in 2019.

The secrecy prevents the public from fully understanding how the death penalty is administered and unnecessarily complicates legal cases, said Deborah W. Denno, founding director of the Neuroscience and Law Center at Fordham Law School.

“If you’re confident in your product, you’re going to be very open and transparent,” she said. “Usually when people are secretive, that does not mean good things.”

From the Associated Press

Idaho GOP bars news media from upcoming presidential caucus, raising transparency concerns

From the Idaho Capital Sun

BY CLARK CORBIN 

News reporters will not be allowed inside the Idaho Republican presidential caucus on March 2 or allowed to observe party officials tabulating results at party headquarters, raising concerns among some transparency advocates. 

Idaho Republican Party Chairwoman Dorothy Moon and Executive Director Kiira Turnbow told the Idaho Capital Sun that Idaho Republican Party’s rules for the caucus only allow registered Republicans and their minor children to attend. The Idaho Republican Party is using 210 different caucus sites during the March 2 presidential nominating caucus. 

Some caucus sites will be held on private property, such as churches. 

But dozens of caucus sites are in public buildings, including public schools paid for by Idaho taxpayers. 

Additionally, Idaho Republican Party officials plan to close the state party’s headquarters in downtown Boise while they tabulate results that are called in from each of the 210 caucus sites. News reporters will not be allowed inside during that time but can wait outside the party headquarters, Turnbow and Moon said. Once the results have been tabulated, Idaho Republican officials plan to open the doors to their Boise headquarters, announce the caucus results publicly and post the results to the Idaho Republican Party’s website, Turnbow said. 

“As for the caucus sites, per the Idaho GOP rules of the caucus, only registered Republican voters and their minor children will be admitted into the caucus sites,” Turnbow said.  

Turnbow said that means reporters will not be allowed inside the caucus sites. When asked by the Sun, Turnbow said the rule applies equally to all news reporters, and that national outlets such as Fox News or the Wall Street Journal would also be barred from entering caucus sites and barred from observing the vote tabulation inside GOP headquarters. 

Blocking reporters from presidential caucus raises transparency concerns 

David Adler, a political scientist who has taught the U.S. Constitution and government at Idaho’s public universities and now serves as president of the nonprofit Alturas Institute, said the Idaho Republican Party’s decision to bar news reporters from access to the presidential caucus is a disturbing, anti-democratic policy “that exalts secrecy over transparency.”

“As the U.S. Supreme Court has held, the Free Press Clause acknowledges the critical role that the press plays in American society, politics and elections,” Adler said in a written message to the Sun. “Press coverage of both the caucus and the official tabulation of votes informs the public, reassures citizens about the legality and fairness of the caucus process, and confirms party representations and voting results.”

“Chairman Moon’s decision to block press access to the presidential caucus and the official tabulation of votes betrays the presumption of openness that inheres in our democracy and, certainly, in the electoral contests for public office,” Adler added. “ I don’t understand Moon’s penchant for secrecy, and question the GOP’s alleged advocacy for free, fair and transparent elections.”

Betsy Russell, president of Idahoans for Openness in Government, urged Idaho GOP leaders to reverse their decision before the presidential caucus. 

“To exclude our free press from the process by which our state’s largest party selects candidates for the highest office in our nation would be absurd and extremely inappropriate,” Russell said in a written statement. “We all know that transparency builds trust, and secrecy generates suspicion. Selecting our leaders is a public matter in this country, not something that should be conducted in secrecy in back rooms. This announcement by the Idaho Republican Party prompts the question: What are they trying to hide? I sincerely hope they rethink this decision and allow the free press to observe the process and report on it to the public, so that citizens can know the process is being carried out as promised. At a time when suspicion of public institutions is running high and conspiracy theories abound, it’s mind-boggling that a major party would want to undermine public trust by conducting such an important process in secret.”

Idaho Press Club President Melissa Davlin also raised concerns about excluding reporters from the caucus.

“For years, Republican candidates have raised questions about integrity surrounding candidate nominations and elections. Now, the Idaho Republican Party has chosen to shut out journalists for this high-interest event,” Davlin said in a statement to the Sun. “Transparency benefits everyone, from the citizens of Idaho to the party officials charged with running the local caucuses. Voters across the nation will be looking to Idaho on March 2, and it’s disappointing the Idaho GOP is making it more difficult to get information to the public.”

Jaclyn Kettler, a Boise State University political scientist, said news reporters have generally been allowed to cover caucuses – pointing to public coverage of the Iowa caucuses, for example. But Kettler said the issue of media coverage fits in with broader discussions political parties are having about how they organize themselves, make decisions behind closed doors and exclude people who are not members.

“These (political parties) are quasi private organizations, yet they are engaging in public functions,” Kettler said in a telephone interview. “But when you’re in the public realm, who gets to make that call?” 

The issue of media coverage came up recently in the Nevada caucuses, Kettler said. The Reno Gazette Journal reported Feb. 7 that Washoe County School District policy prevents the local Republican Party from banning the general public or news media from attending the Republican caucus at 16 public schools that were serving as Nevada caucus sites. 

Members of the Idaho Republican Party are running, paying for and organizing the Idaho caucus themselves – not the Idaho Secretary of State’s Office or county clerks. 

Republicans also set their own rules for the caucus, including banning anyone but registered Republican voters, candidates or their surrogates from entering the caucus sites. Moon told the Sun she is simply enforcing party rules. 

During state-run elections and primary elections, on the other hand, news reporters are allowed into polling places. Many Idaho news reporters maintain direct contact with state and county elections officials across the state on the day of elections. And news reporters are also allowed to observe the Idaho State Board of Canvassers certify the official election results.

During a breakfast meeting with reporters on Tuesday in Boise, Gov. Brad Little said he is planning to participate in the Idaho Republican presidential caucus near his home in Emmett. When asked, Little said he did not know news reporters are banned from entering and observing the caucus. 

“I did not know that; so that’s news to me,” Little said. “I’m kind of a transparent guy.”

Why is Idaho switching to presidential nominating caucuses this year? 

The caucus is new this year. Idaho Republicans have not participated in a caucus since 2012, and Idaho Democrats have not participated in a caucus since 2016. 

Idaho voters are voting in presidential caucuses instead of primaries because the Idaho Legislatureseemingly unintentionally eliminated the presidential primary election last year. The Idaho Legislature passed House Bill 138, which was intended to move the presidential primary election back from March to May, when the rest of the state’s primary electrons take place. However, House Bill 138 just eliminated the presidential primary election altogether, and legislators adjourned for the year without passing the trailer bill that was designed to fix the problem and actually move the primary election to May. 

Without a state run presidential primary election available in law, the Idaho Republican Party voted last summer to conduct a presidential nominating caucus on March 2. 

Idaho Democrats will also conduct a presidential caucus this year, but their caucus is not until May 23.

More information about the Idaho Republican Presidential Caucus is available online.

From the Idaho Capital Sun

UI bills news outlet twice for the same public records

From Idaho Education News

by Kevin Richert

Idaho Education News has already paid the University of Idaho $88.65 for a set of public records.

We haven’t received the records. On Friday, we received a second bill for the same documents — this time, in the amount of $326.15.

The U of I says both bills are legal. And the U of I doesn’t rule out billing us a third time.

At issue are records that we believe will tell an important part of the story about the U of I’s proposed University of Phoenix purchase — a controversial $685 million deal that could make or cost the U of I millions of dollars, and forge a partnership with a for-profit university with a troubled track record.

We have asked, twice, for invoices paid by the U of I and its affiliates, related to the Phoenix purchase. We submitted our original request on Dec. 22.

The U of I first billed the $88.65 to cover the cost of identifying and gathering the invoices. The U of I now says it needs an additional $326.15 to review and potentially redact the records.

In both cases, the U of I says the costs are estimates. If costs come in lower, the U of I promises to refund the difference. Or if the costs come in higher, the U of I says it will ask for more money.

In other words, the U of I isn’t ruling out charging us three times for the same set of public records. Not even when EdNews asked for assurance that the second bill would cover all costs.

“Simply put, this process, which is authorized under the law, ensures that taxpayers are not funding labor that goes solely to the benefit (of) individual requestors, such as you and your employer,” U of I senior associate general counsel said in a Wednesday email to EdNews.

State law allows agencies to bill for public records — for labor costs exceeding two hours of staff time. But the law doesn’t require agencies to seek payment, and many agencies don’t.

We also take issue with Klein’s insinuation that our records requests are self-serving. We have spent eight months pushing for details on the Phoenix purchase on behalf of our readership — and all Idahoans, who have a vested stake in this decision.

We are a public news source. And a well-read news source. Since last week, our stories on the trial that threatened to block the Phoenix purchase have been republished by the Idaho Statesman, the Idaho Press, the Lewiston Tribune, Boise State Public Radio, the Idaho Capital Sun and BoiseDev — and anyone else we might have missed along the way.

So, no, we’re not just doing this for kicks.

On Wednesday, we sent the U of I another $326.15. We’ll let you know what we get next — whether it’s a stack of public records, or another bill.

From Idaho Education News

Judge rejects AG’s open meetings lawsuit against state Ed Board

From the Idaho Press

by Laura Guido

The University of Idaho’s bid to purchase the University of Phoenix has cleared a major hurdle this week.

Ada County District Court Judge Jason Scott on Tuesday dismissed an Open Meetings Law case involving the Idaho State Board of Education’s decision to pave the way for the transaction.

Scott dismissed the case with prejudice, meaning it cannot come back, and did not award relief to the plaintiffs.

Attorney General Raúl Labrador last June filed the lawsuit, arguing that the state board, acting as UI’s Board of Regents, had violated the Open Meetings Law in its closed-door meeting leading up to a public vote to allow UI to create a not-for-profit entity to acquire the online school.

Attorneys for the state board argued that Labrador seemed to be trying to delay the deal.

During the course of litigation, Labrador’s office had made more claims about why the executive sessions, which are not open to the public, may have made the final decision null and void. These included questions of whether an agenda was properly posted and whether an early meeting was too early to even be considered part of negotiations.

Scott had dismissed a number of those claims in an earlier ruling, Idaho EdNews reported.

The three-day trial that took place last week was focused on resolving the question of if UI was in competition with any other public entities for the purchase.

Under the Open Meetings Law, executive sessions may be held under narrow circumstances, including for “preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

During the trial, UI President C. Scott Green testified that the University of Phoenix had always indicated there were competitors in the deal, Idaho EdNews Reported. Board members had also said during depositions that they had been under the impression that there was competition.

In the findings of fact and conclusions of law document that was filed with the ruling, the judge goes through the timeline of the three executive sessions and process by which the board sought the acquisition. He notes that Green had told board members that there was “fierce competition” for the purchase and that the board’s Deputy Attorney General Jennifer Marcus had OK’d the closed meetings as compliant with the law.

Scott wrote that he thought that, given the circumstances, it was reasonable for board members to believe there was competition, even if this turned out not to be the case, and thus the executive sessions were in compliance.

“In practice, governing bodies use the information available to them in deciding whether an executive session is lawful,” Scott wrote. “The information available to them will not always be sound, even when it reasonably appears to be so.”

He wrote that while it wouldn’t be enough if the board simply thought a transaction might be of interest of other public entities, if there was “reasonable belief that it is in competition with at least one governing body,” that would be sufficient under the law, even if that turns out to be incorrect.

Scott said, “Because the Board of Regents reasonably believed at the time of the May 15 executive session that it was in competition with the governing bodies of one or more public agencies in other states to acquire the University of Phoenix, most notably the University of Arkansas, section 74-206(1)(e) permitted that executive session.”

Labrador said in an emailed statement that the standard set by the judge in his ruling is too low in his view, and he thought the court misinterpreted that law. He said he make seek further litigation.

“The law requires much more of its officials than the District Court required, and it provides much greater protection to the public than the District Court gave,” Labrador said in the emailed statement. “The District Court’s ruling will lead to far less government transparency and accountability. That is bad for Idaho citizens, and it defies the entire purpose of the law. We are looking closely at all appellate options to ensure Idaho’s Open Meetings Law remains a bulwark for openness and government accountability.”

State Board President Linda Clark said in a written statement that the board is “disciplined” in following the Open Meetings Law.

“It is alarming to get sued by your own lawyer, Attorney General Labrador, for listening to the advice of his own staff,” Clark wrote. “The Attorney General’s lawsuit has taken an extraordinary amount of time and resources over the last seven months. Regardless, we are pleased the court recognized the State Board followed the law. We are eager to put this unnecessary litigation behind us and will continue our pursuit of payment of legal fees by the Attorney General’s Office.”

A UI spokesperson said the school administrators will continue to seek the acquisition.

“We appreciate the court’s decision and are pleased that the open meeting/executive session practices of our Board of Regents were found to be sound,” spokesperson Jodi Walker wrote in an email. “We look forward to completing our affiliation with the University of Phoenix in the coming months and bringing this unique opportunity to the citizens of Idaho.”

From the Idaho Press

Judge lets Labrador subpoena some U of Phoenix documents in open meeting law case

From the Idaho Press

BY LAURA GUIDO

A judge will allow Attorney General Raúl Labrador to subpoena the University of Phoenix for some documents and depose the university over narrow matters, according to a ruling made Thursday amid an ongoing legal battle over the Idaho State Board of Education’s decision to pursue the acquisition of the online school.

Ada County District Court Judge Jason Scott heard arguments Thursday over whether Labrador may seek additional information from the University of Phoenix (UoPx) and what the information may be. He made the decision, partially granting and partially denying the online institution’s motion to quash Labrador’s subpoena, from the bench immediately after arguments were made.

Labrador brought the lawsuit in June challenging the Idaho State Board of Education’s decision to allow the University of Idaho to move forward in an effort to purchase UoPx, arguing its closed-door meetings held before the public vote were in violation of the state’s Open Meetings Law.

Phoenix’s lawyers argued the information sought was overly broad, burdensome, and unnecessary to decide the case and that Labrador made the move in an attempt to delay the transaction.

“We’re losing, in my mind, the forest for the trees a bit,” University of Phoenix Attorney Benjamin Nielsen said to the judge. “The attorney general sued his own client for relying on the advice of his own deputy. He did so to kill a deal he doesn’t like.”

Deputy Attorney General Gregory Woodard disputed this claim that Labrador simply didn’t like the deal.

“Phoenix is really, they’re acting as a gatekeeper here, they’re deciding what they think is relevant and what is not,” Woodard said. “And that’s not their right and it’s not the standard.”

A key component of the overall legal challenge is whether UI was in competition with another government entity when negotiations took place in a closed session.

Under the Open Meetings Law, closed executive sessions may be held to “consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

Scott had previously ruled that the school board must show that members reasonably believed other governing bodies were in competition but it wasn’t necessary to demonstrate actual competition existed.

Similarly, he ruled Thursday that Labrador’s office may subpoena UoPx for documents showing communications with the University of Idaho indicating there was competition. He denied the office’s request to seek documents proving actual competitors.

“Ultimately, the state of actual competition, if any, is not going to be a viable means of getting at whether their (the board members’) belief was or wasn’t reasonable,” Scott said. “That’s going to be assessed based on what information they had exactly and what the sources of it was.”

He also narrowed the scope of how the attorney general’s office could depose officials from UoPx, limiting it to asking about communications with UI regarding competition or potential competition.

The trial over whether the state board’s May 15 executive session violated the Open Meetings Law is currently scheduled for Jan. 22, but recent court filings indicate that the attorney general’s office may request to move back the date. Scott said a decision on this could be made next week.

From the Idaho Press