From the Associated Press

POCATELLO, Idaho (AP) — A government-accountability group says a southeastern Idaho school board held an illegal secret meeting over salary cuts.

The Idaho Freedom Foundation, a free-market advocate, vowed to lodge a complaint in state court against Pocatello’s District 25 school board, whose trustees held a three-hour executive session Saturday morning, followed by a vote to cut administrative salaries by 6.9 percent.

Wayne Hoffman, executive director of the Idaho Freedom Foundation, said such a topic isn’t covered under Idaho’s exemptions to its open meetings law.

Hoffman told The Associated Press on Tuesday he’s worried that school districts across Idaho could opt for similar closed-door meetings as they address budget cuts in 2011. He wants to stop this practice before it spreads.

“What makes the Pocatello school system think that making a decision to either add to or take from a public employee’s salary is confidential somehow?” Hoffman told the Idaho State Journal. “The school board has an obligation to hold a substantive debate about the budget issues confronting the school district in a public setting.”

School district officials referred questions to their lawyer, Brian Julian. Julian said the board acted appropriately, because the closed meeting covered personnel matters.

Julian said he’s dealt with hundreds of such cases over the last decade, “and this is the way it’s done every time.”

The agenda announcing Saturday’s special meeting lists the open meeting law exemption used to base the executive session as: “to consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against a public officer, employee, staff member or agent.”

According to the Idaho open meetings manual, the state attorney general believes general personnel matters can’t be the subject of closed-door secret meetings.

Rather, only specific personnel actions — such as hiring or firing a public officer or staff member, or to hear complaints or charges brought against public employees, agents or students — are appropriate to be heard in executive sessions.

Julian, who has handled such cases for 30 years, said he believes hosting the discussion in closed session protects due process rights of employees. He also said a retired judge was listening over the phone and believes the school board had a right to deliberate in private.

“I feel comfortable that the process was appropriate,” Julian said.
___

Information from: Idaho State Journal, https://www.journalnet.com

Copyright 2010 The Associated Press.

From the Associated Press

When the U.S. Supreme Court heard oral arguments last week in the case of Doe vs. Reed, challenging Washington state’s practice of considering signatures on petitions for a referendum or initiative to be public record, the justices’ questioning showed much concern about openness and transparency; you can see the transcript here (hat tip to Randy Stapilus’ Ridenbaugh Press). Here’s a comment from Justice Antonin Scalia to James Bopp Jr., who was arguing for keeping the names secret: “The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process. You are asking us to enter into a whole new field where we have never gone before.”

This is a case in which Idaho has filed a friend-of-the-court brief backing the state of Washington, because Idaho’s laws are similar – and the state wants to keep its initiative and referendum petitions open.

From Eye on Boise, The Spokesman-Review

When the 9th Circuit U.S. Court of Appeals holds its first-ever sitting in Pocatello on May 24th, to hear oral arguments in two Idaho cases, it’ll make history in another way as well: Cameras will be allowed in the courtroom. Though cameras are allowed in courtrooms in most state courts, including Idaho’s, under established rules and at the presiding judge’s discretion, they’re banned almost entirely in federal district courts. That crimps TV coverage of federal court proceedings, and is the reason why major federal court cases result in paintings created by sketch artists in courtrooms being published in newspapers and on TV – because actual photos aren’t permitted. The 9th Circuit has been interested in the issue for years, and has allowed cameras in its appellate-level proceedings since 1991; the Pocatello sitting is the latest example. A pilot program also is in the works, at the urging of the 9th Circuit Judicial Council, to have federal district courts in the circuit experiment with permitting cameras in civil non-jury cases, though none have done so yet.

A three-judge panel of the 9th Circuit court, including 9th Circuit Chief Judge Alex Kozinski, Senior Judge Stephen S. Trott of Boise and Judge Randy Smith of Pocatello, will hear the two cases in Pocatello; they they are U.S. v. Alfaro, an appeal by a reputed gang leader from Boise who was sentenced to 150 months in prison on gun charges; and Community House Inc. v. Smith, an appeal by the city of Boise on an issue regarding the sale of a city homeless shelter to a religious group. For more on the cameras in the courtroom issue, check out Idaho’s state court rule here; a Reporter’s Committee for Freedom of the Press article on the recent California case that raised this issue here; a TV reporter’s perspective here; and here a legal history of the issue from the First Amendment Center.

From Eye on Boise, The Spokesman-Review

From The Spokesman-Review

BOISE – Idaho has much at stake in Washington’s big U.S. Supreme Court case over whether referendum petition signatures should be public or not.

“Our initiative and referendum statute is very similar to Washington’s and Oregon’s,” said Idaho Secretary of State Ben Ysursa, at whose request Idaho joined 22 other states in filing “friend of the court” briefs backing Washington’s position – that the signatures remain public.

“I can’t think of something any more public, that should be public, than somebody signing an initiative petition that is basically using the legislative power reserved to the people,” Ysursa said. “It’s part of an open and transparent process, just like (legislators) voting on a piece of legislation would be. That was our basic reason to join in, and the other states that have initiative and referendum seem to agree with us.”

The 23 states, which also include Oregon, Utah, Arizona and Colorado and are being led by Ohio, are among a long list of parties who’ve filed supporting briefs on one side or the other in the case, from the American Conservative Union to the Reporters Committee for Freedom of the Press to the National Conference of State Legislatures. The high court will hear arguments in the case on Wednesday.

The group “Protect Marriage Washington,” which sued to prevent the release of the names of petition-signers on a referendum that sought unsuccessfully to overturn a same-sex domestic partnership law, contends state public records laws that make such information public are unconstitutional, because they’d subject those signers to harassment for exercising their right to free speech.

The states, in their brief, say signing petitions for an initiative or referendum is not political speech, but legislative action. “The people’s exercise of their sovereign referendum power is, by its very nature, a public act,” the brief states.

They also note the significance of state public records laws. “Every state has recognized its compelling interest in open government – both as a check on government power, and as a means of informing the public – by enacting public records acts and open meetings laws,” the brief says.

It also contends that states won’t be able to guard against fraud or protect the integrity of their petition processes if the names of petition-signers are made secret. “Washington’s interest necessitates giving the very citizens who are exercising their sovereign legislative authority through the referendum process an opportunity to verify the integrity of that process,” the brief says.

The rights of initiative and referendum were placed in Idaho’s state constitution in 1912, in the same section that says the state House and Senate can pass laws.

Ysursa, who himself is an attorney, said he views the states’ brief as “pretty solid,” and he’s hoping the state of Washington prevails, as it did in the 9th Circuit U.S. Court of Appeals. Said Ysursa, “I think it’s a step backwards for openness in government if that case is not upheld.”

From The Spokesman-Review

From the Lewiston Tribune

By William L. Spence
of the Tribune

It wasn’t Deep Throat and the story didn’t topple a presidency, but an anonymous phone call to a Moscow reporter did help establish the legal precedent that protects Idaho reporters today.

Two University of Idaho journalism students, Christopher Murray and Kyle Howerton, recently completed a documentary film marking the 25th anniversary of the case, known as In re Wright.
The film was shown to about 120 people a university symposium Monday, after which some of the main participants discussed the state of reporter privilege in the Internet Age.

The case began in the fall of 1982, when reporter Jim Wright of the Moscow Daily Idahonian wrote a story about a drug bust near Deary. The story was based largely on a law enforcement press release, which indicated that about 100 marijuana plants worth $50,000 to $60,000 had been seized.

The next day he received an anonymous call from someone disputing those figures. Through subsequent meetings, Wright determined the caller had been involved in growing the marijuana. Using information the caller provided, he was able to establish that only about a dozen plants and two pounds of marijuana had been seized.

Wright was later subpoenaed to testify in the case. When he refused to reveal his source, he was held in contempt and the paper was fined $500 per day. Publisher A.L. (Butch) Alford — now president of TPC Holdings Inc., which owns the Lewiston Tribune and Moscow-Pullman Daily News — appealed the case to the Idaho Supreme Court.

This was the second case Alford had taken to the Supreme Court. Just a few years earlier, in Caldero v. Tribune Publishing Co., the court had ruled that “no privilege against disclosure of confidential sources … exists in an absolute or qualified version.”

Charles (Chuck) Brown, the Lewiston attorney who argued both cases before the court, said protecting the identity of confidential sources is something newspapers have fought for since Colonial times. Every year there are stories about the hidden actions and wilful misrepresentations of government agencies that could only be written with help from unnamed sources. Protecting the identities of these individuals is crucial to a free press.

A handful of states recognize this by conferring absolute privilege on reporters, meaning they cannot be compelled to reveal their sources. Most states, however, have qualified privilege, in which the public’s right to know is balanced against other considerations.

In the Wright case, the justices explicitly refused to follow the Caldero precedent. Instead, they set their own standard. They said Idaho reporters have a qualified privilege and can be required to divulge their sources if three conditions are met: There must be probable cause indicating the reporter has information relevant to the case, it must be demonstrated that the information can’t be obtained by other means, and the information must be of a significant and compelling nature.

Wright, who has been a reporter and editor for 30 years attended Monday’s symposium, together with Alford, Brown, the two film-makers and ACLU attorney Ben Wizner.

After the Supreme Court issued its ruling, he said it remanded the case back to the lower court to determine if the three criteria were met “But funny enough, after two years in the legal system, nobody cared any more. No one ever called for a hearing to decide (if the criteria were met), and the dope in the evidence locker had rotted away.”

Reporter privilege continues to be a challenge in the Internet Age, with questions about who should qualify and what type of information is protected. Congress is also debating the merits of a federal shield law, which would address the question of privilege for those who cover the federal government.

As Brown indicated at the close of the documentary, this is an issue that deals with the protection of society, as well as of journalists. After all, he said, the genesis of shield laws “was free speech, not just free press.”

From the Lewiston Tribune

From the Spokesman Review

The state of Idaho will pay $275,000 to settle a dispute over the seizure of 25 boat slips and docks at the Sandpoint Marina during a U.S. Highway 95 construction project.

The agreement ends an 18-month skirmish between Ralph Sletager, the marina’s owner, and the Idaho Transportation Department. The parties agreed to drop lawsuits against each other and pay their own attorneys fees. Sletager can reinstall the docks when the $98 million Sand Creek Byway project is finished, the settlement says.

The dispute arose over right-of-way for the byway, which reroutes Highway 95 away from Sandpoint’s historic downtown.

The Idaho Transportation Department acquired the right-of-way for the byway in the late 1950s, state officials said in court documents. The Sandpoint Marina’s “C dock” unit illegally encroached on the state’s right-of-way, blocking byway construction, the documents said.

But Sletager, in other court documents, said no state right-of-way existed. He purchased the marina in 1995.

State officials said they talked with Sletager for months about the need to move the docks. According to court documents, Sletager sent letters back saying: “I don’t plan to move my docks and if anyone from ITD or your contractors trespasses I will have them arrested.”

The issue blew up in November 2008. Sletager, the marina’s security guards and construction workers confronted each other at the marina after contractor Parsons RCI asked Avista Utilities to turn off electrical service to the marina, according to news accounts. Idaho State Police troopers and Sandpoint police were called to the standoff, which ended peacefully.

A few days later, the state sought court permission to remove the docks. Delaying the construction of coffer dams in Sand Creek, which had to be done during low water, would have added $5 million to the byway’s cost, transportation officials said in court documents.

The docks were seized and put into storage.

Sletager was not available for comment Tuesday afternoon. But in court documents, he said the marina’s C dock unit had existed since the 1950s. State promotional materials for the Sand Creek Byway showed “the defendant’s existing East C docks, in their present location and undisturbed by the byway,” according to court documents.

Sletager is responsible for the cost of moving the docks back to Sand Creek. The byway construction should wrap up in 2012, said Barbara Babic, a transportation department spokeswoman.

Last month, the transportation department issued a news release saying it had reached a settlement with Sletager but had agreed not to release the payment amount. The Spokesman-Review obtained a copy of the settlement through a public records request.

From the Spokesman Review

From the Idaho Statesman

Allowing the public to hear why Daniel Ehrlick wants to get rid of his public defenders could violate his ability to get a fair trial, 4th District Judge Darla Williamson said Thursday.

She delayed a hearing on his motion and is considering sealing it to everyone but Ehrlick and his attorneys.

Ehrlick and his ex-girlfriend, Melissa Jenkins, are both charged with the first-degree murder of Jenkins’ 8-year-old son, Robert Manwill, last summer. Ehrlick is accused of beating the boy to death. Jenkins is accused of covering up the crime and lying to police.

Ehrlick filed a surprise motion last week to get rid of attorneys Amyl Myshin and Gus Cahill – the most experienced murder trial attorneys in the Ada County public defender’s office – saying they “lied and misguided me on my case.”

In a boiler-plate one-page motion, Ehrlick indicated that he “feels badgered by the public defender’s office” and that his attorneys have failed to file motions for him and have been hard to communicate with. Ehrlick did not object to Williamson’s suggestion to close the hearing.

It appears she wants to make sure Ehrlick has the ability to discuss his issues without a premature public discussion of the evidence or potential defense strategies – both of which could affect his ability to get an unbiased jury, said former Idaho Attorney General David Leroy, a private attorney in Boise who is not involved in the case.

“Once that information is revealed, it can’t be put back in the bottle,” Leroy said.

Williamson delayed Thursday’s hearing to give media outlets, including the Statesman, time to respond before she makes a decision.

Since the much-publicized search for the boy last summer, officials have kept many details of the case from the public.

Ehrlick’s request to fire his attorneys comes at a key time in pre-trial preparation, as both sides have filed motions asking for strict time limits on the exchange of the vast amount of evidence gathered in the cases.

Ehrlick and Jenkins will be tried separately, with Ehrlick scheduled to go first in October.

Williamson told defense attorneys and prosecutors earlier this year that both trials were going to happen as scheduled and all sides had to meet their discovery deadlines to ensure that happened.

Ada County Deputy Prosecutors Jill Longhurst and Dan Dinger told Williamson Thursday they met a March 15 deadline to have all their forensic testing evidence (scientific tests on physical evidence gathered in the case) submitted to defense attorneys. That includes a package earlier this week that contained “significant” forensic evidence reports.

Read more: https://www.idahostatesman.com/2010/03/19/1123056/ehrlick-hearing-may-be-kept-secret.html#ixzz0jFVpBGWr

From the Idaho Statesman

From the Idaho Statesman

REXBURG, Idaho — A special prosecutor has determined that a series of private conversations between Rexburg City Council members preceding a vote to name a new mayor did not violate the open meetings law.

But special prosecutor Penny Shaul also said the interactions by the city’s elected leaders last fall demonstrated a “fundamental lack of understanding of the (law’s) underlying purpose.”

Shaul issued her findings Wednesday from her five-month investigation into allegations that at least four of the city’s council members held private discussions before a vote to name a new mayor. On Nov. 4, the council elected fellow council member Richard Woodland to replace Shawn Larsen.

Shaul classified those discussions as “serial meetings,” defined as a series of gatherings by fewer than a quorum to discuss public issues in private. During those meetings, at least two members discussed who should nominate Woodland for mayor and who should second that motion. Two other members discussed the merits of naming Woodland to the post, according to Shaul’s report.

But the Idaho Open Meetings Law does not specifically prohibit serial meetings, and Shaul said no evidence exists to suggest a council member shared how they would vote.

“The conclusion that I came to … was that there were certain members of the council that violated the spirit of the Open Meeting Law,” said Shaul, a deputy prosecutor from Bonneville County appointed to the case.

The investigation was initiated after a complaint was filed by Maria Nate, of Rexburg. Despite the finding that no laws were broken, Nate said the report validates her original allegations and concern.

“I don’t see this as a loss,” she said. “It was always my intention to point out that the decision was made behind closed doors. Now that the light has been shone on them, they need to shape up.”

Rexburg City Attorney Stephen Zollinger cheered the report and its findings exonerating the council. But he said the city will heed recommendations to provide more education and training to the council on the law.

“Anytime we are made aware that we may lack understanding of a principle, we are concerned with that,” Zollinger said.

Read more: https://www.idahostatesman.com/2010/03/18/1122077/prosecutor-clears-rexburg-leaders.html#ixzz0jFWb0dp6

From the Idaho Statesman