From the Idaho Press Tribune

Bryan Dooley
bdooley@idahopress.com
Wednesday, July 8th, 2009

NAMPA — An open-government watchdog says Nampa officials are dragging their feet in response to his request for financial records that give employees’ salaries.

But city leaders said they were reluctant to release employee names, which some workers feared could be used to target them for identity theft and other crimes.

Idaho Freedom Foundation Executive Director Wayne Hoffman criticized the slow response to his request for information including names, positions and pay rates for all city employees.

The government transparency group intends to publish the information on its Web site, www.idahofreedom.net, alongside other data to allow taxpayers to track how and where officials spend money.

Hoffman said he submitted his request June 24, and Nampa officials have promised to respond by today. Caldwell, Boise, Canyon and Ada counties and other agencies have responded promptly to similar requests, Hoffman said, and privacy concerns have not been a major issue.

“It’s just not something that should take two weeks to process,” he said.

The former spokesman for U.S. Rep. Bill Sali also said he had received e-mails from about a dozen Nampa employees who did not want the information disclosed.

“Any way you interpret the statute, it says that the name, title and rate of pay of public employees are public record,” Hoffman said. He said he was not aware of any case in which release of such information compromised the safety of a government worker.

Payroll is a large part of most government agencies’ budgets, making transparency and public scrutiny crucial, Hoffman said.

Nampa Mayor Tom Dale said he hoped to discuss the matter and potential unintended consequences further with Hoffman.

“I’m very much in front of helping him in his project, as he calls it, for transparency in government,” Dale said. “I’m just wondering if there’s a way for him to accomplish his goal” without tying employee names to their payroll data.

Dale and City Clerk Diana Lambing were unsure whether the information prepared to submit to Hoffman today would include the names. Lambing said she believed the names had been removed.

Hoffman said he would wait to see whether the names are included before deciding how to move forward. If the names are missing, the response would be out of compliance with his request and state public records laws, he said.

From the Idaho Press Tribune

From the Moscow-Pullman Daily News

Daily News plans to petition court to recover electronic correspondence between Steed, legislator

By Mark Williams, Daily News staff writer

Posted on: Wednesday, July 01, 2009

Idaho law does not restrict government officials from deleting e-mails they received concerning public business, even though those e-mails can be considered public record.

The issue came to light when the Daily News made a public records request to state Rep. John “Bert” Stevenson, R-Rupert, concerning e-mail correspondence between himself and Moscow City Councilman Walter Steed.

The request sought e-mails regarding two proposed bills that would affect Moscow’s ability to sell water across the state line to the Hawkins Companies’ planned retail development in Whitman County.

Both bills, sponsored by Rep. Gary Schroeder, R-Moscow, died in the House Resources and Conservation Committee after passing overwhelmingly in the Senate, and never reached the House floor.

Stevenson serves as chairman of the House Resources and Conservation Committee. His written reply to the public records request stated he had deleted the messages sent by Steed.

He later said he had not read the majority of Steed’s e-mails.

Stevenson’s written response was reviewed by the state attorney general’s office, which indicated the Daily News would need to petition a court to recover them. Idaho law states a petition must be filed in the district court of the county where the records or some part of them are located.

Though deleted e-mails can be recovered, the process is time-consuming and potentially costly, meaning hordes of potential public records in electronic form may be disappearing before the public can access them.

Daily News Editor and Publisher Nathan Alford said the company plans to take the necessary steps to recover the records.

“Defending the public’s right to know is part of our mission and responsibility, and we’re willing to do what it takes to protect a well-established right,” he said. “Transparency in government is essential.”

E-mails and other records must be retained after a public records request has been made, but Idaho Deputy Attorney General Bill von Tagen said no mechanism exists to compel government officials, including legislators, to keep their e-mails before a request is made.

“We don’t really have a records retention policy,” he said. “There may be other reasons that require them to be saved, but when you’re in a purely political realm I don’t believe that is the case.”

Senate Minority Leader Kate Kelly, D-Boise, sees the loophole as a problem, but said there has been no pressure from the public or within the Legislature to remedy the law.

“The Legislature certainly doesn’t have (a retention policy) for hard copy or e-mail,” she said.

Kelly is well-versed in public records issues. She and Senate Majority Leader Bart Davis, R-Idaho Falls, co-sponsored a bill last session that would have required elected officials and candidates to disclose their personal finances, but the proposal was killed before it reached committee.

Kelly previously worked in the attorney general’s office and advised agencies on open records laws.

She said she is not surprised that Idaho hasn’t addressed the law.

“I like to describe Idaho as an analog bubble in the middle of a digital world,” she said. “In terms of what we’re doing from a statutory standpoint, my guess is that we’re probably behind” other states.

House Majority Leader Mike Moyle, R-Star, said he doesn’t think the situation is a problem.

He said if legislators or interest groups were to discuss something potentially damaging, they wouldn’t do it via e-mail, where they know it can eventually be retrieved.

“Common sense says you wouldn’t think somebody would send something along those lines knowing that it would be a public record,” he said. “Everything we do is out there to be found. I mean, you can say it’s gone, but it’s not really gone.”

Moyle said most legislators delete their e-mails just like everyone else.

“Most guys delete them right away,” he said. “We caution our legislators to be careful with what they do or say. We do our best to keep things above board. We want to keep things in the light.”

Mark Williams can be reached at (208) 882-5561, ext. 301, or by e-mail at mwilliams@dnews.com.

From the Moscow-Pullman Daily News

From the Idaho Attorney General’s office

(Boise) – Important changes to the Idaho Open Meeting Law take effect today, Attorney General Lawrence Wasden said. Wasden led a coalition of local governments, journalists and open government advocates in presenting changes to the 2009 Legislature. The proposals were adopted by the Idaho House of Representatives and the Idaho Senate and signed into law by the Governor.

Under the revised law, public officials are subject to a civil penalty of up to $50 for any violation of the Open Meeting Law. Second and subsequent violations can result in a penalty of up to $500 and any “intentional” violation is subject to a civil penalty of up to $500.

In addition, the new law further restricts the circumstances under which governing bodies of public agencies may meet behind closed doors in “executive session.”

The amendments also clarify the procedure for amending a public meeting agenda before and during the meeting and provide a procedure by which governing bodies of public agencies can cure a violation of the Open Meeting Law.

“Idaho’s Open Meeting Law has been in effect since 1974,” Attorney General Wasden said. “While there have been some changes to the law over the past 35 years, it was in need of revision to ensure the people’s business remains the people’s business. The hard work and foresight of the journalists, local government officials and my staff who worked hard to overhaul this law is commendable. For my part, I will continue to work tirelessly for open government and will recommend legislative changes to help ensure open government.”

From the Idaho Attorney General’s office

From the Spokesman-Review

ITD director shelved 2007 research over validity concerns

Tags: Idaho Transportation Department

BOISE – As Idaho prepares to consider raising car or truck fees to address a huge shortfall in road funding, a 2007 state study that showed car and pickup owners pay more than their share and subsidize heavy trucks has languished.

A copy of the study, obtained Monday by The Spokesman-Review under the Idaho Public Records Law, shows that since the previous study in 2002, a rough balance between cars and heavy trucks has tilted. “Autos and pickup users are overpaying about 10 percent, while all trucks are underpaying about 10 percent,” the study found.

Draft results from the $20,000 study were presented to the Idaho Transportation Board in October 2007, but shortly after that, Pam Lowe, Idaho Transportation Department director, decided to scrap it.

Lowe said she didn’t hear from any interest groups objecting to it. Instead, she said she was concerned with statements in the study, prepared by Palouse Partners Inc. of Pullman, that suggested glitches between Idaho’s record-keeping system and the software used for the study could result in some inaccuracies.

“My own consultant was saying it might not be valid,” Lowe said.

State Sen. Shawn Keough, R-Sandpoint, said, “I was frustrated that they didn’t finalize that cost allocation study, because it really would have been helpful in the debate.” She added, “I have a lot of confidence in ITD’s economists, and I didn’t question the methodology or the work that had been done.”

But Kathy Fowers, president of the Idaho Trucking Association, said, “We never really approved of that study. … A cost allocation study is only as good as the people who participate in it. It can be very political.”

Steps suggested in the study to address the glitches would have been complex and time-consuming, Lowe said. “It was going to take too much time. We weren’t going to get it done for the legislative session, so I just scrapped it.”

Nevertheless, word of the study’s results circulated – they’d been discussed at a public Transportation Board meeting – and led to concern over just what the study did or didn’t show.

“We have no idea how they came to their conclusions or anything,” Fowers said.

She maintains that Idaho’s truck registration fees already are high compared to other states, but a separate study of truck fees by a Denver consultant commissioned by ITD in December 2007 found Idaho’s truck taxes and fees “comparable to or below the average of surrounding states.”

Meanwhile, proposals this year to substantially raise registration fees for cars and pickups while making only small or no adjustments to truck fees raised the ire of those who said the move would worsen the inequities already identified in the study.

“We are in a time when the little guy feels that he’s expected to pay to solve the problems created by the big guys,” said Keith Allred, head of the citizen group The Common Interest.

Dave Carlson, spokesman for AAA Idaho, said, “Fair-share budgeting is a must.”

Now, Idaho is looking at launching a new highway cost allocation study. This time, the state will follow models from Nevada and Oregon, rather than relying on the software used in the 2007 study.

From the Spokesman-Review

From the Idaho Statesman

Owyhee County has spent more than $162,000 on something so obviously wonderful, it just has to be kept secret from taxpayers. So the county took a black marker and diligently crossed out 56 entries on a 240-page check register provided to the Idaho Freedom Foundation. County Prosecutor Douglas Emery decided the recipients of the taxpayer dollars – of which he’s one – should remain anonymous.

The Idaho Freedom Foundation has spent months making a simple request of government agencies throughout Idaho: Send us an electronic record of your last 18 months of operating expenditures, line by line, check by check. The request to Owyhee County shouldn’t have come as a surprise; I met with the county commissioners and the county prosecutor, who doubles as the county’s legal counsel, in March to explain to them how the Idaho Freedom Foundation was working to boost the transparency of local and state government agencies, and how their spending records would be made part of a free online database.

But Owyhee County soon proved it wouldn’t do what was easily accomplished by Canyon County, Nampa, Pocatello, Boise, Ketchum, Hayden, Meridian, the Ada County Highway District, Pocatello School District, Meridian Development Corporation, College of Western Idaho, Greater Boise Auditorium District and the Boise, Coeur d’Alene and Pocatello school districts – all of whom had no problem responding to our request quickly and thoroughly.

Owyhee County initially dismissed my public records request, sent by e-mail on April 30.

“The Owyhee County departments are not to accept e-mail records requests,” Owyhee County Prosecutor Douglas D. Emery told me in an e-mail denying my e-mail request. “Owyhee County is within its right to require uniformity in the request process and that our form be used and signed.” So I took my same request, word for word, pasted it onto Owyhee County’s form, and e-mailed it back. Success.

“I will route the (request) to the necessary departments for an estimation of the total pages of copies which will need to be generated. If there is a cost anticipated, I will advise,” Emery told me.

Twenty days later, on May 30, Owyhee County’s 240-page response came in the mail, complete with a letter dated May 14 and a bill for $66.

But the pages contained blacked-out entries for more than $162,000 of non-payroll expenses. And for some of the entries, both the recipient of the money and the dollar amount were redacted. To justify his actions, Emery cited portions of the public records law that allows records to be withheld if they are of a personal nature, are medical records or are records belonging to the Idaho Housing and Finance Association. Emery declined to elaborate on his legal selections, which seem odd to me.

Fortunately, not everyone is excited about government secrets, and with a little bit of sleuthing, I was able to find out that the bulk of the secretive payments went to a consultant, likely working on the Owyhee Initiative. More than $6,000 went to Emery, when he was under contract with the county as a deputy prosecutor in 2007-2008.

What’s not clear to me are the reasons Owyhee County declared these entries secret. Emery offers few answers.

“There is no secret that I worked for the Owyhee County as a deputy prosecutor under Matt Faulks, the former (county prosecutor), at $50 per hour approximately one day per week and performed such work for a number of months,” Emery wrote in an e-mail Thursday. “My prior position with the county and rate of pay is a matter of public record and likewise published in the Owyhee Avalanche. Details of personal withholdings and personal payroll information, however, is not.”

But payments to Emery weren’t reported in the county’s accounting as payroll, which means either Emery was hired as a contractor, not an employee, or the county’s accounting system is flawed. And what of the payments to the lands consultant? Emery won’t answer.

“If you desire further records or additional followup, please complete and sign the proper written public records form and submit payment for the expenses incurred to date,” Emery wrote in his final e-mail transmission.

I suspect Owyhee County’s decision to hold these expenses secret violates Idaho’s public records law. In fairness, I can’t be entirely sure of anything because of Emery’s steadfast refusal to openly discuss the matter.

Regardless, the county’s froward response to the public’s right to know is maddening, and it illustrates how little these county officials respect the taxpayers who ultimately pay the bills and expect to know – with only extraordinary exceptions – who is getting their money and why.

Wayne Hoffman is the executive director of the Idaho Freedom Foundation, a nonprofit, non-partisan think tank. E-mail him at wayne@idahofreedom.net.

From the Idaho Statesman

From the Moscow-Pullman Daily News

Deans, faculty disagree on value, necessity of independent contractor’s work

By Halley Griffin, Daily News staff writer
Posted on: Saturday, May 30, 2009

Magaly Rodriguez lives in Minnesota and occasionally travels to the University of Idaho to serve as an independent consultant and “Chief Inspiration Officer.”

The UI pays her $12,500 a month for her services, according to public records obtained by the Daily News.

Rodriguez is held on retainer by the UI, on a nine-month appointment that expires in June. The contract totals $112,500 and was signed during the same academic year that state holdbacks forced the UI to cut about $3.8 million from its budget.

She spends anywhere from zero to 10 days in Moscow per month, according to the contract between Rodriguez and the UI.

Deans and other administrators say the retainer with Rodriguez and consulting company Volentum is well worth the money spent, but the faculty who have participated in their workshops tell a different story.

While one dean praised the calming effect of the sessions, a professor likened them to “being sedated.”

Provost Doug Baker said Rodriguez’s consulting is one tool in adopting the university’s strategic plan.

He said she is “absolutely” worth the money.

“She’s helping us reshape our culture,” Baker said.

Rodriguez said she helps do that by building “global peacemaking communities,” and she claims to have coined the term “peacemaking.”

“If you want to know kind of really what I do, I’m interested in building communities,” she said in a phone interview Friday.

College of Science Dean Scott Wood called on Volentum’s services this February, when the university was considering the elimination of its undergraduate degrees in physics.

Rodriguez stepped in to facilitate a two-day workshop that ultimately helped save the program.

“We obviously got to a resolution,” Wood said. “I’m not convinced we would have gotten there without Magaly’s help.”

He said he’d bring her back “in a heartbeat.”

But physics professor Francesca Sammarruca wrote in an e-mail that she felt the workshop focused mainly on sharing feelings and resolving personal conflicts, while the problem facing the physics department did not arise from interpersonal conflicts.

“When I heard of a workshop with a professional facilitator, I was expecting a roundtable with a neutral moderator (who is knowledgeable in physics, science, and institutional planning). That would have been a format appropriate to the circumstances,” she wrote.

“The point is that her services cannot help with problems such as ours. The problem arose from a hasty decision. That decision needed to be discussed openly and thoroughly between the people involved in a (moderated) professional meeting, and at a much lower cost.”

Such retainer is “outrageous,” Sammarruca wrote, especially when everyone is being told to save money and resources where they can.

“That kind of money can support (seven) graduate students each month,” she wrote. “That’s a way to really help a department.”

Rodriguez’s travel, lodging and meal expenses are paid for by the university, but deducted from the $12,500 she receives monthly.

In fact, she takes home more pay during the months when she does not visit the university in person, and consults with administrators via telephone instead.

Baker has employed Rodriguez on an independent consulting basis for more than a year.

She and Volentum have signed one-time contracts for amounts from $10,000 to $15,500 for workshops that took place prior to the start of her retainer contract.

The $12,500 isn’t the sole cost each month. For each workshop there also are refreshments to be purchased and equipment to be rented.

One day’s lunch at a workshop for deans and administrators in May 2008 cost the UI $1,078.74.

But Baker said it is typical for a university to spend this kind of money on independent consultants.

“I think the university brings in that expertise on a variety of things,” he said. “You sometimes want to have (someone) on retainer for a period of time, and you do that to bring expertise that you don’t have.”

Baker said he does not yet know whether the contract with Volentum will be renewed after June. That decision will depend on the university’s budgetary capabilities.

Patricia Hartzell has been through about three Volentum workshops with the department of microbiology, molecular biology and biochemistry.

“I’m really perplexed as to what (administrators) thought the outcome would be, how it would change our life. Because it didn’t,” said Hartzell, a professor in the department. “I think they think they were successful.”

Many other faculty members interviewed for this story declined to be quoted, citing “fear of retaliation.”

Although they did not want their names used, their stories were the same. The consensus among them is Rodriguez is “a lovely person,” and is good at what she does. They question, however, her necessity to the university.

Faculty both on and off the record agree on another point: they feel patronized, and said the real issues are being swept under the carpet.

“The workshop reminded me of the “I’m OK, you’re OK,” workshops back in the 1970s. It focuses on improved relations, rather than solving problems,” computer science professor Paul Oman wrote in an e-mail. “The department members get along better, but we still have the same fundamental problems because all we do is agree to disagree rather than move in one direction for the good of the department.”

Licensed psychologist W. Rand Walker said the field has advanced significantly farther than the Volentum materials that he has reviewed.

“It is reminiscent of techniques that were developed in the 1960s by Carl Rogers and other humanistic psychologists,” said Walker, who has published materials on communication and therapeutic techniques. “It is also the same techniques that are used in ‘Natural Helpers’ programs that are used with junior high school students.”

Walker said the role consultants play in a university setting is important and shouldn’t be diminished.

“There are legitimate places for this, but you don’t pay $112,000 for it,” he said.

The computer science department had its first Volentum workshop in early 2008. Minutes from a faculty meeting last March summarize departmental reactions to the two-day retreat.

“While there appeared to be a general consensus that the retreat was beneficial, there were considerable mixed reactions to the specifics of the retreat,” read the minutes.

Specific comments reflect positively on the communication tools taught by Rodriguez, but include questions such as “Now what?” and “Can we address the real problems without her?” Faculty in numerous departments that have participated in Volentum workshops have said they feel the same way.

“I thought and I still think that she is a very nice woman and what she says is good information,” Hartzell said. “But I don’t think it solved our problems.”

Baker, however, believes most people have enjoyed and benefitted from their experiences with Rodriguez.

“I suspect you do have some sample bias,” he said. “My assessment is she’s done a pretty successful job.”

From the Moscow-Pullman Daily News

From the Times-News

Feds say state was violating law

By Nate Poppino
Times-News writer

Among its other tasks, the Idaho Department of Health and Welfare inspects the state’s nursing homes, hospitals and other entities on behalf of the federal government.

Since 2006, Health and Welfare has posted its inspection reports on its Web site for public review. But those postings have stopped after the federal Centers for Medicare and Medicaid Services warned Idaho it was violating federal law.

In an April 30 memorandum to all state survey agency directors, CMS Survey and Certification Group Director Thomas E. Hamilton reiterated the process for releasing facility surveys under the Freedom of Information Act – requiring requests in writing, and allowing the documents to be released as long as nothing identifies individual patients and staff and pursuant to certain timelines and review.

On Friday, CMS regional spokeswoman Stephanie Magill said those specifications have also led Medicare to restrict posting the surveys and correction plans to the Internet. Some states – including Idaho – regularly posted the documents, while others didn’t. Now all states are consistent, she said.

Idaho officials aren’t pleased with the change. Health and Welfare spokesman Tom Shanahan said Thursday that the department has appealed the change, and spokeswoman Emily Simnitt said Friday afternoon that officials are still waiting for a response from CMS. Meanwhile, she said, further postings of all inspections on behalf of the federal agency are on hold.

“At this time, we are doing what CMS has asked us to do,” Simnitt said.

Federal regulations were previously silent on how public records requests for the surveys should be made, Magill said. For now, documents will be kept at central locations in each state and can be specifically requested in either physical or digital form.

One long-time administrator in the nursing-home and assisted-living industries said Friday that taking the surveys off the Internet may be a good thing. Scott Burpee, a current partner in Safe Haven Health Care, said that just enough information exists in nursing-home reports for someone familiar with a home to identify the patients involved in a case. That opens the door to possible patient-privacy violations, he said.

The Web postings also hold “marginal value” for families evaluating possible homes, Burpee said, noting that facilities are supposed to make recent reports available on-site and that a site tour is much more valuable than an inspection report that may lack needed context. It’s the same reason, he said, that administrators often aren’t fond of facility-rating Web sites developed by CMS.

“None of the way the survey was designed was for that,” Burpee said of publishing the documents.

It’s not clear what CMS has in mind for dealing with the Internet and survey documents. Magill wasn’t sure Friday if the agency is reviewing the issue, and said she was still waiting for more details from her central office. Hamilton’s memo states that more detailed information on its contents “will follow in the near future.”

From the Times-News

From the Idaho Statesman

The judge says he can’t legislate from the bench, but doesn’t consider Pentico a threat.
BY DAN POPKEY – dpopkey@idahostatesman.com
Published: 05/12/09

The Republican Party’s libertarian wing is criticizing the conviction of a Mountain Home GOP official who defied a police order to stay away from Idaho Gov. Butch Otter’s office.

“Idahoans for Liberty,” a group including organizers of recent Tea Party events and backers of Texas Rep. Ron Paul, marched from the sentencing hearing Monday to Otter’s office.

The group said Elmore County Republican Vice Chairman Christopher Pentico’s rights to petition the government and to speak freely were violated. They asked Otter to pardon Pentico and stop enforcing the trespassing law on state property.

About 75 Pentico supporters packed the courtroom of Ada County Magistrate Kevin Swain on Monday. Swain found Pentico guilty April 21, but said the application of the trespassing law to public buildings raises “troubling questions.”

Swain said he was issuing the lightest of possible sentences and would strike Pentico’s conviction after he completes probation.

Pentico’s complaint stems in part from an incident he says occurred while he was a graduate student at Boise State University. He told the Statesman that a former university employee threatened to pull his arms from their sockets. Pentico did not complete his graduate degree, but in 2000 earned a bachelor’s degree in math and physics.

His allegations include conflicts of interest and other inappropriate actions by university and state officials to whom he has complained. Pentico, 42, has pressed his complaints for five years.

Pentico’s supporters have expanded their influence in the party, beginning last year when they helped unseat Otter’s choice for party chairman. They played a prominent role in defeating Otter’s plan for a gas tax increase and have won seats on county central committees across Idaho.

Last month, members of the Ada County Republican Central Committee tried to force a vote on a resolution alleging Otter violated Pentico’s right to due process. They won a majority on a procedural vote, but fell short of the two-thirds majority required for action.

In 2008, Idaho State Police barred Pentico from the governor’s office after repeated encounters with Otter and his staff. Though Otter said Pentico had never been threatening, his refusal to accept no for an answer was compromising his staff’s ability to do its work.

“If he’s disruptive to the staff – to the demeanor of the office – we have to remove him,” Otter told the Idaho Statesman last week.

Pentico also has spoken with Attorney General Lawrence Wasden, state schools Superintendent Tom Luna, dozens of legislators and top staffers to former Govs. Dirk Kempthorne and Jim Risch.

“He seems to think that if he comes 12 times, the answer will be different than the 11th time,” said Jon Hanian, Otter’s spokesman, after Pentico was sentenced to 30 days’ probation Monday.

Pentico has considered suing, but said Monday that too much time has passed.

Boise State spokesman Frank Zang said BSU considers the Pentico matter closed. “We reviewed and addressed any concerns he may have raised in years past. There are no current issues of which we are aware.”

Pentico was arrested after he defied a March 25, 2008, State Police order to stay away from the governor’s office, the Capitol Annex and the Department of Education. A police officer handcuffed Pentico on April 2 after Pentico returned to the governor’s office and didn’t immediately respond to an order to stop.

Swain rejected the request of the Ada County prosecutor’s office: five days in jail, two years’ probation, a $200 fine, and a ban on Pentico’s entering three offices where he was barred in 2008.

Rep. Pete Nielsen, R-Mountain Home, testified on Pentico’s behalf Monday. Nine other lawmakers signed a letter saying Pentico “has acted in a responsible and respectful manner.”

Dan Popkey: 377-6438

From the Idaho Statesman

From the Times-News

By Andrea Jackson
Times-News writer

The Times-News has challenged the closure of hearings and the sealing of documents in the murder case against Fortino Leon of Jerome.

In court papers filed Friday, Times-News attorney Fritz Haemmerle cited a recent closure of a hearing in the case, sealing of key court documents and confusion over the status of the case in requesting a hearing to argue that the proceedings should be open to public view.

Haemmerle argued the public has a constitutional right to observe court proceedings.

“Public access to criminal trials permits the public to participate in and serve as a check upon the judicial process, an essential component in our structure of self-government,” Haemmerle wrote. “It should be evident that logic dictates that the public has a right to know why a defendant facing murder charges is not being tried, or when that defendant might be tried.”

The mental competency of Leon, 73, has been at issue in the court since he was accused of first-degree murder in the July shooting of Javier Zavala-Paniagua, 22, in the street in front of his home in Jerome. He also is charged with aggravated assault and aggravated battery in relation to the alleged shooting of his estranged wife, Maria Leon, 41, who was apparently living with Zavala-Paniagua at the time of the shootings.

The case has not proceeded to a preliminary hearing or grand jury because the court has yet to rule if Leon is mentally fit to stand trial.

On April 15, 5th District Judge Jason Walker had granted requests from the Times-News and KMVT-TV to video record and photograph Leon’s court appearance the following day. But “thereafter, without any explanation, the court ordered the case closed to the public, and reporters … removed from the courtroom,” Haemmerle wrote.

On April 17, Walker issued a written order that also sealed various documents, saying it was “to preserve the defendant’s right to a fair trial,” though he did not specify why closure was needed to do so. In previous hearings he had denied defense motions to close the case, saying it was important to keep it open.

“Prior to the order being issued there was no public hearing or fact-finding made by the court as to why the order was issued or why it was necessary to seal the documents,” Haemmerle wrote. “The last hearing on this matter was abruptly shut without the court explaining what aspect of the criminal case remains open, if any.

“The right to a fair trial is fundamental, significant and important,” Haemmerle wrote. “However, the court has not recognized or evaluated the public’s equally compelling right to access under the First Amendment. This right needs to be acknowledged and addressed. Only when the state’s interest is found to be more compelling can the court prevent the public’s right to access.”

Times-News Editor James G. Wright said the newspaper is acting as the public’s representative in asserting that sealing court files and closing proceedings runs counter to basic principles of American democracy.

“Any effort to wall off our courts from the public, even with the best of intentions, erodes our fundamental civil rights and undermines respect for the rule of law,” Wright said Friday. “The public cannot have confidence in the fairness and competence of its judicial system if it cannot see that system at work.”

While not a party in Friday’s filing, the Associated Press has agreed to help cover the cost of the legal challenge, Wright said.

Haemmerle asked for a hearing on the motions to be set for June 11.

Andrea Jackson may be reached at 208-735-3380 or ajackson@magicvalley.com

From the Times-News

From the Times-News

By Andrea Jackson
Times-News writer

Public documents were sealed from community sight this week in the murder case against Iranian refugee Majid Kolestani.

Kolestani, 43 – a man who identifies as a woman and also goes by the first name Nastaran – is accused of shooting 29-year-old Iranian refugee Ehsan Velayati Kababian to death in his car along Fifth Avenue East in Twin Falls on Aug. 25. Friends of the pair say possible motive is jealousy over a woman Kababian may have been romancing in Iran.

Twin Falls 5th District Court Judge Randy Stoker recently denied Kolestani’s requests to dismiss the case and another to change venue because of pretrial publicity.

Stoker on Tuesday sealed an unspecified motion and order. Last year he sealed four documents in September involving the preservation of evidence, court records show.

The move to seal mirrors others from recent serious criminal cases.

A Times-News request to view a sealed police affidavit regarding a rape reported outside Woody’s on April 16 was denied this week in Twin Falls 5th District Court.

In that case, Justin Wicklund, 24, is charged with rape, after he was arrested hours following the alleged incident unfolded outside Woody’s Bar and Grill.

Judge Howard Smyser sealed the “affidavit in support of warrant for arrest,” because it “contain(s) highly intimate facts or statements, the publication of which would be highly objectionable to a reasonable person,” according to court records.

Prosecutors asked Smyser to seal the rape case document, and on Tuesday he decided Wicklund’s lawyer, Joe Rockstahl, of Twin Falls, can get a copy for defending his client.

On April 16 in Jerome County, Judge Jason Walker shut the public out of a criminal hearing in a first-degree murder case without saying if 73-year-old Fortino Leon is mentally fit to stand trial or why he was sealing the hearing.

Fortino Leon, 73, is accused of first-degree murder in the July shooting of Javier Zavala-Paniagua, 22, in the street in front of his home in Jerome. He also is charged with aggravated assault and aggravated battery in relation to the shooting of his estranged wife, Maria Leon, 41, who was living with Zavala-Paniagua at the time.

On April 17 in an order filed with the Jerome County 5th District Court, Walker wrote that he sealed the hearing to protect Leon’s right to a fair trial, and continued Leon’s commitment with the Idaho Department of Correction for 180 days.

Prior proceedings related to Leon’s mental competency have been held in open court.

Any willful or intentional disclosure of a confidential court record may be treated as a contempt of court, according to Idaho judicial rules.

Andrea Jackson may be reached at ajackson@magicvalley.com or 208-735-3380.

From the Times-News