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

From the Rexburg Standard Journal

REXBURG – The Rexburg City Council has been found not in violation of the Idaho Open Meeting Law, according to an opinion delivered to the council by Special Prosecuting Attorney Penny North Shaul on Tuesday.

The opinion draws to a close a five-month investigation into the quick appointment of Rexburg Mayor Richard Woodland to replace Shawn Larsen at a City Council meeting Nov. 4, 2009.

Although at first glance this appears to be good news for the City Council, Shaul said council members “displayed a fundamental lack of understand of the underlying purpose of the Open Meeting Law.”

“Basically the conclusion that I came to … was that there were certain members of the council that violated the spirit of the Open Meeting Law,” Shaul said in an interview.

In other words, although the City Council made no technical violation of the law, in her opinion, the council’s actions violated the intended purpose of the law, which is to “promote open and honest government.”

The opinion letter, which documents Shaul’s investigation of the council, states that several of the Rexburg City Council members engaged in “serial meetings.”

The term “serial meetings” refers to a series of gatherings attended by less than a quorum of members to discuss a public issue in private.

The document states that:

1. “At least four of the council members acknowledged that they had met with other members individually, to determine how many votes certain candidates would garner.”

2. “At least two members discussed which member would move to nominate (Richard) Woodland for mayor and which member would second the motion.”

3. “At least two other members discussed the merits of (Richard) Woodland as a candidate for mayor. …”

4. “There were efforts by several council members to determine which candidate(s) would be unable to garner enough votes for appointment.”

But although the ethics of serial meetings may be in question, the Idaho Open Meeting Law does not prohibit serial meetings.

“There is nothing in the Open Meeting Law language that specifically spells out that you can’t do that,” said Shaul.

The investigation also revealed that there is no evidence that any member of the council “definitively stated what his vote would be.”

There is also no evidence that any council member was pressured into voting a particular way or that there was any sort of “agreement or promise of favors for the nomination of a particular candidate.”

Shaul concludes her legal opinion by suggesting that the council be given further legal training with regards to the “parameters and application of the law.”

The response to Shaul’s opinion has been positive both from the city representatives as well as from those who spearheaded the investigation of the City Council.

“We are not surprised (by the outcome) – it’s pretty much what we expected and confirms what we have said all along,” said City Attorney Stephen Zollinger. “The city has from the outset acknowledged that councilors met on an individual basis.”

In an interview, Zollinger reiterated that although City Council members may have talked with one another, they never engaged in deliberation or decision making outside of a public meeting.

“We are pleased that Mrs. Shaul’s opinion exonerates the council from any criminal behavior or any behavior that even approaches underhanded behavior,” said Zollinger.

He believes the council’s action to have been ethical and disagrees with Shaul’s assessment of a violation of the spirit of the law. But he says that the city will follow up on Shaul’s recommendation and get more education for council members.

But Woodland is less inclined to recommend more education for the council. He says that the council receives sufficient training regarding open meeting laws already.

“We are already doing it – we have training every six months on this very thing,” said Woodland. “No, we won’t do anything additional. We are very aware. … If we did any (additional) training, it would be on public perception and how to avoid pitfalls.”

Still, he did say that any new council members would be given proper training.

Overall, Woodland reports being very happy with the decision, although he remains adamant that no serial meetings ever occurred among the council members.

He said council members occasionally asked each other, “What are we going to do?” But he says that the council did nothing wrong.

“We had no intent of violating the law and we didn’t skirt it – that’s plain and simple,” said Woodland.

But some community members are not satisfied with the City Council’s understanding of Idaho’s Open Meeting Law.

“It’s perplexing for me that council members didn’t know they were violating the law,” said Maria Nate, a trustee on the Madison School Board, who brought the complaint forward to the Madison County Prosecutor’s Office. “Many of them have served for quite some time and have more than likely received training on the Open Meeting Law, and at the very least their attorney should have known better.”

Last November, Nate wrote a letter to the Madison County Prosecuting Attorney’s office requesting an official investigation into whether or not the City Council had violated the open meeting laws.

Like Woodland, she says that she is pleased by the outcome of the investigation, although for a different reason.

“I think that this ruling proves what I have been saying all along – that the process of selecting the new mayor was improper and the council has been put on notice,” said Nate.

Last November, Nate also had the opportunity to file a complaint with the local magistrate court 30 days after Woodland’s appointment to legally challenge his appointment, but she opted not to.

During prior interviews, Nate has said that her only interest in pushing for the investigation was to insure that government be open and transparent. She says it was never her intention to remove Woodland as mayor.

Records show that Nate also played a significant role during the investigative process.

Official investigative documents show that Nate and Tom Kennelly, a resident of Rexburg, provided the majority of the evidence against the City Council during the investigation.

The majority of the evidence presented by Nate and Kennelly came from personal interviews with past and present council members and statements made by city officials during media interviews.

The investigation documents also show interviews with members of the City Council.

Interviews of past and present councilmen by investigator Max Sprague show that Rex Erickson, Randy Schwendiman, Bart Stevens, Adam Stout, Chris Mann, Brad Egbert and Woodland all admitted to speaking in some form or another about the mayor position with another council member prior to the appointment.

Copies of these investigative documents are available, along with Shaul’s official legal opinion, at City Hall.

Woodland says that now the investigation is over, the city is free to respond to the allegations and talk about the events leading up to his appointment.

He says in hindsight the situation could have been handled better.

“What was wrong and what made it look bad was the way that the nomination transpired,” said Woodland.

“We all thought there would have been more discussion … had we submitted someone else’s name we would have had the discussion. But what did happen was that Adam (Stout) nominated me … and they voted and it happened so quickly.”

The mayor says he regrets the speed at which the decision was made and says that if they had to do it again, there would be much more discussion on all the candidates.

“If we were conspiring we surely wouldn’t have done it that way – if we were acting it out or creating a charade we wouldn’t have done it that way because it made us look bad,” said Woodland.

From the Rexburg Standard Journal

From the Twin Falls Times-News
BOISE — Somewhere in Idaho there’s a hunter who goes to bed each night with a pistol at his side because he fears harassment from those who take exception to his outdoor recreation.

That’s one reason the Senate Resource and Conservation Committee heard Monday why it should close hunting and fishing licenses to public disclosure. Because the bill already passed the House, the Senate is where the bill’s fate will be decided.

The bill, proposed by Rep. Judy Boyle, R-Midvale, would allow hunting and fishing license records to be kept under wraps as a way to prevent harassment of license holders. Idaho Department of Fish and Game records that identify those holding licenses would not be obtainable by the public, even through a public records request.

Boyle’s bill comes because of feedback she’s heard from wolf hunters who claim they were targeted by people opposed to hunting.

“He felt his life was threatened to the point where he started sleeping with a pistol,” Boyle said, telling the committee one hunter’s story.

She stressed automatic confidentiality as the route to go.

The committee hasn’t made a decision yet.

“I don’t believe someone has to have your information on every single thing that you do,” Boyle said.

Boyle’s bill has drawn the opposition of the Idaho Press Club and Idaho Allied Dailies, two media organizations concerned that government transparency will fall by the wayside if the bill passes.

Lobbyists representing the organizations asked legislators to consider an amendment to the bill. The amendment would keep public the records of anyone who is: an elected official, a candidate for elected office, a political appointee, or a candidate for a political appointee position.

Without any changes, the bill would require written permission from anyone, including public officials, to access their records.

“If this bill’s going to go through, it would at least be improved with an exclusion of the application to public officials,” said Jeremy Pisca of Idaho Allied Dailies. … “It’s like trying to kill a gnat with a sledgehammer.”

Also, there are citizens who use the records to check into someone’s background before reporting a potential hunting violation, Pisca said.

Besides that, there’s also the argument that some hunting tags are awarded in a lottery form, and not releasing the identification could lead to questions about improperly awarded tags, Pisca said.

“If you shut down the openness of your government then your government operates in the dark,” Pisca said.

Before the amendment was proposed, Sen. Bert Brackett, R-Rogerson, asked Boyle what she thought about exempting public officials from the proposal and keeping their records public.

Boyle said she believes that’s adequately covered already by allowing officials to give their written consent for the records to be released.

Sen. Michelle Stennett, D-Ketchum, said that for property owners, the records can provide a tool for reporting people doing illegal activities on their land.

Sen. Elliot Werk, D-Boise, asked why the bill would automatically make the records a secret rather than simply give people the option to keep their information confidential.

Boyle said she didn’t think people would take advantage of that opportunity or may not be aware it’s available.

“Most people, they don’t follow through on an opt-out,” Boyle said. “If you don’t know it’s there, you can’t opt out. I think for the safety of our citizens, it’s better to have an opt-in.”

The bill passed the House side earlier this month with a 55-14 vote, with Rep. Stephen Hartgen, R-Twin Falls, and Rep. Leon Smith, R-Twin Falls, among those opposed.
From the Twin Falls Times-News

Editorial from The Idaho Statesman

It’s the kind of news that frightens any parent: A retired police officer, a former school resource officer, is jailed on child sexual abuse charges.

So where was Stephen R. Young working, from 1995 to 2005? On Saturday, a Boise police spokesman wouldn’t say. “The problem is, it’s a personnel issue, protected by state law,” Charles McClure said.

If that sounds wrong, that’s because it is. By Monday morning, the Boise Police Department corrected its error and released more information about Young, a 31-year department veteran who retired last month. He worked as an SRO at Boise High School and South Junior High School.

Young is charged with four counts of lewd conduct with a child under the age of 16, and police investigators say the charges have nothing to do with his on-duty work.

Regardless, parents have an absolute right to know where Young worked. This right is preserved in an Idaho public records law that operates under the presumption of openness: A document is considered public record unless the law specifically exempts its release.

Every winter, lawmakers and state agencies push for new exemptions, often to the public’s detriment. Last week, the Idaho House approved a legislative overreaction: a bill that would seal off information from fish and game licenses.

The sponsors have a legitimate concern: They don’t want activists to harass law-abiding hunters and anglers. But hunting and angling are privileges, not rights, and the state’s wildlife is a public resource belonging to us all.

There is ample reason to allow Idahoans the chance to check on whether a fellow outdoors enthusiast is playing by the rules – and to allow the news media to find out whether a political candidate or Fish and Game appointee actually is licensed to hunt or fish. All of this would be history, under a wholesale exemption now headed to the state Senate.

Fortunately, the legislative process doesn’t always work this way. Lobbyists for law enforcement and media groups have tightened – and improved – a bill to prevent the release of officers’ home addresses and phone numbers.

Sunday marks the beginning of Sunshine Week, when media organizations unite behind a common message: An open government is an accountable government. But the interpretation of sunshine laws can be as important as the law itself – as we’ve seen in the past few days.

Last week, the Idaho Transportation Department said little about suspending and firing 21 workers over the improper use of equipment. In a mammoth agency with everything from snowplows and trucks to copiers and computers, that could mean almost anything. Here, as in the case of Stephen R. Young, government should strive for transparency, instead of using “personnel matters” as a catch-all excuse for secrecy.

“Our View” is the editorial position of the Idaho Statesman. It is an unsigned opinion expressing the consensus of the Statesman’s editorial board. To comment on an editorial or suggest a topic, e-mail editorial@idahostatesman.com.

Editorial from The Idaho Statesman

From the Idaho Statesman

The bill, approved 55-14, would remove hunters’ names from public record.

Rep. Judy Boyle, R-Midvale, proposed it after Idaho’s first wolf hunters received unwanted attention from animal advocates. Under current law, the Department of Fish and Game must release the names of people who report killing animals like wolves. Boyle’s bill would keep private the names of people who buy hunting and trapping permits. A wolf advocate published the names of 122 successful wolf hunters on a Web site in January, saying he wanted to start a debate about wolves in Idaho.

Read more: https://www.idahostatesman.com/2010/03/07/1107613/idaho-legislature-updates.html#ixzz0jFaKHfa7

From the Idaho Statesman

From the Idaho Statesman

Police officers are pushing a bill to let them make their home addresses and phone numbers private, saying it’s too easy for people with grievances to harass officers and their families.

Local government offices make real estate deeds and other documents public. The proposed bill would allow police officers, correctional officers and prosecutors to replace their home addresses with work addresses.

The Senate State Affairs Committee approved the bill. It includes proposed amendments from the newspaper group Idaho Allied Dailies, which had concerns about reporters’ access to public information.

Read more: https://www.idahostatesman.com/2010/03/07/1107613/idaho-legislature-updates.html#ixzz0jFc33twu

From the Idaho Statesman

Editorial from the Moscow-Pullman Daily News

Say it ain’t so!

Idaho Democrats are going the way of their Republican brethren when it comes to government secrecy.

The minority Democrats, with just 18 House seats and seven in the Senate, made the decision to caucus behind closed doors to maximize their effectiveness.

That reason doesn’t fly with us.

The party would be more effective if it continued to conduct its business in the open.

Closed meetings between elected officials smack of shady deals and other shenanigans, once the norm when the public was nothing more than a money source.

Open meeting laws have all but eliminated secret gatherings, but that doesn’t stop elected officials from attempting to meet behind closed doors.

In Idaho, closed caucuses are allowed as a way for political parties to discuss strategy and priorities. We wonder why Republicans in the Gem State would feel the need to have such meetings when they dominate every aspect of the legislative process by their sheer numbers.

It seems the only resistance the GOP receives on a regular basis is from the state’s Republican governor, who never met a Legislature he couldn’t bully.

It would behoove the Democrats to keep the status quo of open meetings and transparency. There’s not a whole bunch of strategy that’s going to deal a huge setback to the GOP agenda.

Unfettered access to our elected officials is essential to the governing process, especially on the state and local levels.

The process stops being public once those doors close.

We cannot say for certain if legislation is illegally discussed in caucuses, because we can’t attend the meetings and participants are tight-lipped.

We encourage Idaho Democrats to reconsider their decision. It’s the best way for voters to see how their party conducts its business without having to employ X-ray vision.

Editorial from the Moscow-Pullman Daily News