See the Judge’s ruling here.

From The Spokesman-Review

The Spokesman-Review must provide information that could identify an anonymous reader who typed a disparaging online comment about the chairwoman of the Kootenai County Republican Party in February, an Idaho judge ruled Tuesday.

The attorney for the chairwoman, Tina Jacobson, subpoenaed information about the identities of three Huckleberries Online readers who commented under assumed names below a photograph featuring Jacobson.

Under the name “almostinnocentbystander,” the commenter questioned whether $10,000 reportedly missing from the Kootenai County Central Committee might be “stuffed inside Tina’s blouse.”

Two other commenters, “Phaedrus” and “outofstatetater,” also typed comments responding to the original post about Jacobson’s blouse.

The comments were deleted from Huckleberries Online after S-R blogger Dave Oliveria discovered them, but the first post was visible for about 2 ½ hours.

In late April, Jacobson filed a lawsuit against “John and/or Jane Doe.” Her attorney, C. Matthew Andersen, subpoenaed the names of the commenters so the suit could proceed, and the newspaper responded with a motion to quash that request.

In a hearing last month, Jacobson’s attorney argued that his client’s reputation was hurt by the posts and sought to have the judge order the newspaper to provide identifying information about the people who made the comments.

The newspaper’s attorney, Duane Swinton, argued at the June hearing that the blouse comment “wasn’t nice” but that it was made on a blog site “where people express opinions, sometimes airing outrageous views.”

In his written decision, Luster pointed out that the U.S. Supreme Court has ruled since 1942 that the First Amendment does not protect defamatory speech. “… while the individuals are entitled to the right of anonymous free speech, this right is clearly limited when abused,” Luster wrote.

He ordered the newspaper to give to the plaintiff “any document establishing the identity, e-mail address, and IP (Internet Protocol) addresses of ‘almostinnocentbystander.’”

However, Luster also ruled that the paper would not have to provide similar information for the two readers who commented on the original post, saying they did not abuse their rights to free speech “by making defamatory comments.”

Andersen, Jacobson’s attorney, said he was pleased by Luster’s ruling.

“The ruling is a reaffirmation of the historically long-standing legal rule that there is no constitutional protection for a defaming statement,” Andersen said. “The interesting twist in this is the application of that legal rule to an anonymous Internet commenter. That is the part that is refreshing.”

Gary Graham, editor of The Spokesman-Review, said he was disappointed with Luster’s decision but he has not yet decided whether the newspaper will pursue an appeal.

“However, we are glad the judge ruled that we don’t have to provide information about the two people who simply commented on the original posting,” he said.

In his ruling, Luster noted that Idaho, unlike many states, has no “shield law” protecting reporters. However, that doesn’t matter because the longtime journalist who oversees the Huckleberries Online blog, Oliveria, wasn’t acting as a reporter, but rather as a “facilitator of commentary and administrator of the blog.”

Under a clipping of a New Yorker cartoon, Luster said the court recognizes that the job description of a reporter has changed.

But “it is clear that Mr. Oliveria acted as an administrator of the blog when he removed the subject postings” and there is no indication that the information was intended to be used in a news story or editorial opinion piece, the judge wrote.

From The Spokesman-Review

From the Twin Falls Times-News

From the Associated Press

BOISE, Idaho (AP) — The public will get the chance to weigh in on the fate of Idaho’s long-empty governor’s mansion.

A five-member panel that oversees finances for the water-guzzling property met Tuesday to approve a $177,400 spending plan that will cover the mansion’s upkeep during the next fiscal year. The electricity bill alone is expected to cost around $40,000, while another $80,000 is budgeted for maintenance of the expansive grounds.

The 3-2 vote, however, came with a caveat: The panel agreed to hold a public hearing in September to garner input on whether Idaho should keep, or dispose of, the hilltop mansion that has attracted controversy since it was donated to the state in 2004 by the late french fry billionaire, J.R. Simplot.

The Governor’s Housing Committee met in Boise to consider the 2013 fiscal year budget for the property after a previous vote held over email in late June was found in violation of Idaho’s open meeting law.

Sen. Les Bock, a Democrat on the panel, complained the email vote didn’t give the public adequate notice to consider the budget. On Tuesday, the committee voted to nullify the previous vote, which was also 3-2, before taking up the budget a second time.

“I recognize the error in this was inadvertent, I’m not suggesting that any of this was intentional,” said Bock, who joined Democratic Rep. Phylis King in voting against the spending plan.

Bock worried the unpublicized vote would take the spotlight off the home he wants the state to ditch because it’s quickly draining its maintenance fund.

The cost of caring for the mansion and watering its expansive lawn has taken its toll on the fund that held more than $1.5 million in 2005. The account has been drained to less than $900,000, which will only cover the bills for the next five years unless something is done.

Gov. C.L. “Butch” Otter, Simplot’s former son-in-law, has declined to live in the mansion, preferring instead his ranch west of Boise. The state does charge agencies that use the home as an event venue, but that doesn’t bring in much cash.

The housing panel has long discussed options for the property.

If Idaho decides to sell the mansion, it must first give Simplot’s surviving family the right of first refusal, at market prices. And if the offer is too low, Simplot’s family could take back the place, even though Idaho has paid for six years of upkeep and used $310,000 in private donations to pay for renovations.

The housing panel’s chairman, Republican Sen. Chuck Winder, proposed the public hearing to discuss the future of the home after a handful of people showed up at the hearing on the mansion budget.

“That’s not really the issue. The issue is whether you keep it or you don’t keep it,” Winder said.

From the Associated Press

From Eye on Boise/The Spokesman-Review

The Governor’s Housing Committee has set a public meeting for this afternoon, after a senator on the panel objected that an earlier vote by email on the committee’s budget for the upcoming year for upkeep of the hilltop former Simplot mansion violated the Idaho Open Meeting Law. After Sen. Les Bock, D-Boise, objected, the panel’s chairman, Sen. Chuck Winder, R-Meridian, scheduled today’s meeting. “It is a good learning experience for all of us, including myself,” Winder wrote in an email to the committee members.

Winder sought advice from Deputy Idaho Attorney General Brian Kane, who responded, “It appears that the committee will need to take corrective action in order to comply with the Open Meeting Law.” That, he wrote, means acknowledging the violation, convening in a properly noticed and open meeting, voiding any previous action, and taking the business up again. In addition, Kane said all email traffic should be incorporated into the committee’s record.

The public meeting is now set for 3 p.m. in the Len B. Jordan state office building, Room 155. The agenda includes the panel’s $177,400 budget for the coming year, much of which would go to grounds maintenance. The Simplot family donated the hilltop home to the state as a governor’s mansion, but no Idaho governor has yet lived there.

From Eye on Boise/The Spokesman-Review

From the Associated Press

A Democratic senator contends Idaho officials violated public meetings laws with a hasty email vote this week on the $177,400 budget to cover landscaping, mowing and watering the expansive lawn below the vacant Idaho governor’s mansion, the AP reports. Sen. Les Bock of Garden City sits on the Governor’s Housing Committee, which oversees the hilltop mansion in Boise. He said Thursday the committee’s budget vote didn’t give the public adequate notice to consider whether the spending plan was appropriate.

The five-member panel voted 3-2 via email on Tuesday to spend the money for fiscal year 2013, with Bock and Democratic Rep. Phylis King of Boise opposing it. Voting in favor were Teresa Luna, director of the Department of Administration, and Boise Republicans Sen. Chuck Winder and Rep. Max Black. Now, an in-person meeting of the panel is being planned, after Bock, an attorney, wrote to the committee saying, “I have concluded that the recent vote on the Governor’s Housing Committee’s FY2013 budget was conducted in violation of Idaho’s open meeting law. The vote on the budget is, therefore, null and void.” Click below for a full report from AP reporter John Miller.

Senator: Governor’s mansion budget vote illegal
By JOHN MILLER, Associated Press

From the Associated Press

Editorial from the Moscow-Pullman Daily News

Tuesday morning, the public got an unprecedented look at an execution in Idaho – not just the injection of a lethal chemical and the moments before death.

Eyewitnesses to the procedure were also allowed to see the condemned, Richard Leavitt, enter the room where he was scheduled to die. They watched as he was placed on a gurney and secured with leather straps. And the handful of witnesses, including four members of the media, saw the catheters that would deliver a lethal dose of pentobarbitol inserted in his arms.

The start-to-finish aspect of the execution was a direct result of a successful lawsuit filed by a group of news organizations, including the Moscow-Pullman Daily News, that claimed the Idaho Department of Correction policy barring witnesses from viewing a lethal injection in its entirety violated the First Amendment and the public’s right to know.

The public process also brings to light any difficulty in conducting the execution. Death penalty foes claim the catheters can be inserted incorrectly, causing undue pain for the inmate.

That was not the case this time, according to witnesses.

“I am grateful that we have four media witnesses here to tell you what they saw,” said Brent Reinke, Idaho’s prisons chief, after the execution. “Our goal was to make this as professional as possible with dignity and respect, and I believe we met that mark.”

Who knows what will happen the next time?

The media didn’t file the lawsuit because of a perverse need to see a death sentence carried out. We would prefer to not have to be the public’s eyes and ears in such matters, but that’s what we’ve done for years.
As long as the state is conducting business in the name of you, the public, our job will be to report – good or bad – on how that is carried out.

Watching someone die as an end result of the judicial process is not easy.

As long as society insists on meting out the death penalty, we will insist the act of killing remains public in its entirety.

Without such oversight, the state-sanctioned deaths would take on a sinister aura we would find intolerable.

Editorial from the Moscow-Pullman Daily News

From The Spokesman-Review

The 9th Circuit U.S. Court of Appeals sided with the news media late Friday, ordering a preliminary injunction to require Idaho to permit full viewing of the upcoming execution of Richard Leavitt, including early stages in which IVs are inserted to allow lethal drugs to be administered.

The execution is scheduled for Tuesday.

“The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law,” the appellate court wrote, reversing U.S. District Judge Edward Lodge’s rejection of a preliminary injunction. “We fault the State, not the media plaintiffs, for our need to consider this question several days before an execution: the State has missed opportunity after opportunity to bring its execution procedures into compliance with the clear law of this circuit.”

The lawsuit was brought by 16 Idaho news outlets and organizations, led by the Associated Press, and also including the Idaho Press Club and The Spokesman-Review. The media groups charged that the state’s execution witness access rules, which prohibited witnesses, including the news media, from seeing the early portions of lethal injection executions, directly violated a 2002 9th Circuit decision. The court agreed.

“We reverse the district court’s denial of a preliminary injunction and remand for the entry of an order requiring the State to allow witnesses to observe Leavitt’s entire execution, ‘from the moment he enters the execution chamber through, to and including, the time he is declared dead,” the appellate court wrote, quoting from its 2002 decision, California First Amendment Coalition v. Woodford.

The three-judge panel, in a unanimous opinion authored by Judge Stephen Reinhardt, found no validity to the state’s claims that an order to pull back the curtain between witnesses and the execution chamber approximately 20 minutes earlier in the process would force delays in the scheduled execution. Instead, the court said only “minimal changes” would be required.

“The First Amendment protects the right to witness executions in their entirety,” the appellate court wrote.

Jeff Ray, spokesman for the Idaho Department of Corrections, said, “We’ll take the necessary measures to ensure that the execution continues as scheduled. We’re still looking it over and figuring out the specifics, but we will do what the court says we need to do, and the execution will continue on Tuesday.”

Charles Brown, the Lewiston, Idaho attorney who represented the news groups in the case, said, “I’m very pleased with not only the results, but their findings throughout the opinion.”

The judges sharply questioned Lodge’s conclusion that the news media wouldn’t be harmed by missing out on early stages of this execution while its case proceeded in court with regard to future ones. “To say that the plaintiffs will not suffer harm because they will be able to witness part of Leavitt’s execution is like saying that the public would not suffer harm were it allowed to read only a portion of the New York Times,” the court wrote. “That the plaintiffs may be able to observe future executions in Idaho does not mean that they are unharmed by the denial of their right to observe this execution. These legal errors constituted an abuse of the district court’s discretion.”

News media groups requested the department to remove the limits on witness access before Idaho’s last execution, the November 2011 execution of Paul Ezra Rhoades. The department promised instead to review its procedures after that execution was completed, but then later refused to change them.

The news groups sued on May 22.

Idaho was among four states in the 9th Circuit that hadn’t been complying with the 2002 decision; the others were Washington, Montana and Arizona, but Arizona announced this week that it was changing its procedures to allow witnesses to view the insertion of IVs via closed-circuit TV.

Idaho defended its procedures, citing four reasons: That opening up the earlier stages to witnesses would violate the privacy of the condemned inmate; that it would offend the sensibilities of his family and friends; that it would impact other Death Row inmates; and that it could lead to identifying or stressing the masked members of the execution team who insert the IV lines and escort the condemned prisoner into the chamber.

Wrote the court, “The State of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death. It strains credulity for the State to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion of intravenous lines than when they are simply allowed to watch the inmates die.”

The concern about anonymity of the execution team was “more substantial,” the court wrote, but it was dealt with in the 2002 decision, which held that surgical garb and masks adequately shield team members’ identities.

Leavitt received the death penalty for the 1984 murder and mutilation of Danette Elg of Blackfoot.

From The Spokesman-Review

Editorial from the Idaho Statesman

For the second time in seven months, Idaho is preparing to kill a convicted criminal in the name of all Idahoans.

And for the second time in seven months, the first phase of this procedure could occur behind a shroud of secrecy — in conflict with a 9th U.S. Circuit Court of Appeals ruling that holds that witnesses should be allowed to view an execution, from start to finish.

That’s why Idaho media groups, including the Statesman, went to U.S. District Court to petition for access to the execution of Richard Leavitt, scheduled for Tuesday. This is why media groups will appear before the 9th Circuit Court today to appeal a district court ruling that sided with the state.

This isn’t one of those First Amendment fights that wins the news media much sympathy from readers and viewers. It plays directly into the critics’ worst stereotypes of a self-important and voyeuristic media. But this is, nonetheless, an important access issue.

Reporters are the public’s witnesses to an execution. The job is every bit that somber, every bit that essential. Reporters are there to confirm what corrections officials will invariably assert after the fact: that an execution was conducted in a humane and dignified manner.

Is there any public function where government should be held more accountable?

Idaho’s execution protocol compromises the media’s public function. If Tuesday’s execution adheres to state guidelines, Leavitt will be brought into the execution chamber, restrained and hooked up to the IV catheters that administer the lethal injection, all before witnesses are ushered into the chamber.

These are important steps in the procedure; the insertion of the catheter is at least as delicate and crucial a step as the actual lethal injection itself. But reporters — and, by extension, Idahoans — are expected to accept on faith that these steps have been carried out smoothly.

Consequently, in a 2002 California case directly on point, the 9th Circuit ruled as follows: “The public has a First Amendment right to view the condemned as he enters the execution chamber, is forcibly restrained and fitted with the apparatus of death.” Yet Idaho did not heed this ruling in the Nov. 18 execution of Paul Ezra Rhoades, and has no intention of heeding it in the Leavitt execution.

Even though he ruled against the media, I can’t be too critical of U.S. District Judge Edward Lodge’s decision Tuesday. Lodge said the media groups have a “strong claim” on First Amendment grounds. He also criticized media groups for filing their complaint on May 22, less than a month before the execution date, and questioned media groups’ assertion that the state could change its protocol without delaying the execution.

“The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption.”

Fair enough.

But I’d also criticize the Correction Department for insisting on a procedure that runs counter to case law, prompting the media groups to file their complaint. I’d also point out that Leavitt faces execution in connection with a 1984 murder.

Idaho doesn’t exactly rush into executions, not that it should. It’s not too much to ask that the state find a way to abide by legal precedent.

ON WISCONSIN

Wisconsin was the nation’s political epicenter Tuesday night, as Gov. Scott Walker survived a bitter and costly recall campaign.

Will these results reverberate as far as Idaho?

State GOP Chairman Norm Semanko breathlessly took up the issue Tuesday, even before the results were announced. In an email to Republicans, Semanko predicted Idaho would become “the next battleground,” as voters debate state superintendent Tom Luna’s Students Come First education overhaul.

Wrote Semanko: “Idaho’s teachers union has already hired a big-labor, union boss from back East to come to Idaho and overturn all the progress we’ve made through the Students Come First education reforms. These recalls and referendums are not about what’s best for children. They’re about who is going to run our schools: local leaders or national union bosses.”

It’s an excuse for Semanko to rile up the base. And a chance for him to again jab at the man hired to run the campaign aimed at repealing the Luna laws — David Williams, who most recently worked on an Ohio campaign advocating for public employees’ collective bargaining rights.

OK, but a battleground?

A more measured take comes from Northwest political blogger and former Statesman editor Randy Stapilus. Stapilus points out, fairly, that the fierce opposition to Walker fizzled over time — so on Tuesday, more than a year after Walker pushed through a law to rescind public employees’ collective bargaining rights, the governor survived a recall challenge.

And that, says Stapilus, is a template for the attempts to overturn the Luna laws, also passed in 2011. “Based on the Wisconsin experience, the odds are: Those referenda have almost no chance of passage.”

Generally speaking, what happens in Wisconsin politics has no direct bearing on Idaho politics. But the Wisconsin vote shows that even the most controversial issues have a limited shelf life.

Editorial from the Idaho Statesman

From The Spokesman-Review

PASADENA, Calif. – A federal appeals court raised sharp questions Thursday about why Idaho’s not complying with its 2002 decision that the First Amendment requires witnesses to be able to view lethal injection executions from start to finish, including the insertion of IVs.

“California’s been doing it, Ohio’s been doing it, Arizona just announced today they’re going to do it,” 9th Circuit Judge Judge Marsha Berzon told Deputy Idaho Attorney General Mike Gilmore. “At least on a preliminary injunction basis, you have put nothing in the record to show that Idaho is different in this regard – that you haven’t done.”

Idaho, Washington and Montana are among four states in the circuit that have been closing off the early portion of their lethal-injection executions from public view despite the decade-old court ruling, but one of them, Arizona, changed its rules this week. There, media witnesses now will be able to view the insertion of the IVs via closed-circuit TV. Arizona’s next execution is scheduled for June 27.

The Associated Press and 16 other news outlets and organizations, including The Spokesman-Review, sued over Idaho’s rules after the state refused to change them, despite talks with the media that have gone on since before Idaho’s last execution in November. On Tuesday, U.S. District Judge Edward Lodge ruled that the media had a “strong case on the merits,” but declined to impose a preliminary injunction, saying there wasn’t sufficient time to change procedures before Idaho’s scheduled June 12 execution of Richard Leavitt.

The news groups appealed to the 9th Circuit, where a three-judge panel, which also included Chief Judge Alex Kozinski, a First Amendment expert and Ronald Reagan appointee, and Judge Stephen Reinhardt, a Jimmy Carter appointee who’s served on the court since 1979, heard arguments Thursday.

At the close of the arguments, the judges asked Gilmore if he’d like to call the warden and see if Idaho would like to change its procedures without an injunction, while the judges had their lunch and before they started writing their opinion. “Is there any point in you talking to the warden in the next hour and getting back to us?” Berzon asked. Kozinski added, “We’re going to be here in the building having lunch. We won’t get any opinion done, I would suspect, in the next two hours or so.”

By mid-afternoon, the court had posted that the arguments were complete in the case and it was under advisement.

Jeff Ray, Idaho Department of Corrections spokesman, said in an email late Thursday afternoon, “We have made no changes to the procedures. We are waiting for a ruling.”

Charles Brown of Lewiston, attorney for the news groups, said, “I felt that the jurists listened to our arguments and I felt good about how everything went, but we’re waiting for the decision.”

Gilmore said one of the concerns leveled by Idaho prison officials was that the identities of the five-member execution team might be made public if the execution is viewed by witnesses from start to finish. “They have a very keen interest in their anonymity,” Gilmore said.

The state also argued that allowing witnesses to see the early stages of the execution would violate the privacy of the condemned prisoner and the sensitivities of his friends and family, and that it could impact other Death Row inmates.

The news groups took issue with Lodge’s finding that Idaho’s procedures could stay as-is for the Leavitt execution and then be altered in the future without harm to the parties involved.

Brown argued this represented a “profound event.”

“The lower court is essentially finding that a First Amendment right can be violated today as long as it is possible for First Amendment rights to be reasserted at some date in the future. Such a finding flies in the face of what our constitutional rights are all about,” Brown said in court documents.

Berzon told Gilmore, “We have multiple cases saying denial of a First Amendment right for a period of time is irreparable harm.”

Staff writer Betsy Z. Russell contributed to this report, as did AP writers Greg Risling in Pasadena and Jessie L. Bonner in Boise.

From The Spokesman-Review

From The Spokesman-Review

A federal judge declined Tuesday to issue a preliminary injunction against limits on witness access to Idaho’s executions, finding that while the news media presented “a strong case on the merits” that the limits are unconstitutional, their timing was poor, because Idaho has an execution coming up on June 12.

“Simply put, the current scheduled execution does not allow adequate time for discovery, an evidentiary hearing, a ruling by this Court and a potential appeal by the non-successful litigant to the 9th Circuit before the scheduled execution date,” wrote U.S. District Judge Edward Lodge. Lodge said he’d like to hold full hearings on the issue, with any subsequent ruling to apply to future executions – but not to the upcoming one of eastern Idaho murderer Richard Leavitt.

Leavitt on Tuesday lost a bid in the Idaho Supreme Court to quash his death warrant on due-process grounds; it was the fourth attempt to stay his execution that he’s lost in the past week.

A group of Idaho news media outlets and organizations, led by the Associated Press and including The Spokesman-Review, filed a notice of appeal to the 9th Circuit U.S. Court of Appeals; the appellate court has scheduled time for arguments in the case on Thursday. The news groups have been pressing for changes in the procedures since before the November 2011 execution of Paul Ezra Rhoades; they agreed not to sue before that execution when the Idaho Department of Corrections promised to review its policies after that one was completed. However, the department made no change.

“We’re disappointed that the judge feels there’s not enough time to resolve this before June 12,” said Gary Graham, editor of The Spokesman-Review. “All of the editors and reporters involved here feel it’s critical … that we, the media, have access to this kind of an event. An execution is not something to be taken lightly. … It’s an access issue for us, and we feel the public is best served if the media is there as their representative, to report how the process goes.”

Idaho’s execution procedures bar witnesses from the early stages of the lethal injection process, including the strapping of the condemned inmate to a gurney and the insertion of IV lines. A 2002 9th Circuit decision specifically held that such restrictions are unconstitutional under the First Amendment, but only two states in the circuit – Nevada and California – have been complying with the 2002 decision. Washington, Idaho, Arizona and Montana all have barred witnesses from the early portions of the procedure; Oregon has conducted no executions since the 2002 decision, and Alaska and Hawaii don’t have the death penalty.

“The public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death,” the 9th Circuit court found in the 2002 case.

In Idaho, complying with that decision would mean opening the curtain between the execution chamber and the witness viewing room approximately 20 minutes earlier in the process.

The Idaho Department of Corrections has defended its procedures, arguing that allowing witnesses to see the early portion of the process would violate the condemned inmate’s privacy and dignity and that of his family, affect other Death Row inmates, and stress and possibly identify execution team members, though they are masked and in surgical garb.

“The Court is very concerned that to the extent Plaintiffs could establish the IDOC’s protocol does need to be changed to protect First Amendment rights of the public, there is insufficient time for the IDOC to amend the policies and practice changes in the protocol without a delay in the scheduled execution,” Lodge wrote.

News media witnesses have attended every Idaho execution but one since 1901; prior to that, Idaho’s executions were conducted at the county level, and were mostly public, with hundreds typically attending.

“The undisputed reality as supported by the newspaper accounts of past executions and the specific language in IDOC’s Protocol 135 (which provides for numerous witnesses including the media), is that some portion of the public has historically viewed the execution process in Idaho,” Lodge wrote in his 20-page decision Tuesday. “Further, this Court agrees with Plaintiffs that society has a critical interest in having at least some members of the public view the government’s implementation of a death warrant.”

From The Spokesman-Review