Lost court battles inflate Idaho’s legal bills

BOISE – The state of Idaho’s spirited legal defense on cases involving same-sex marriage, abortion and demonstrations at the state Capitol will cost nearly $1 million in taxpayer funds this year – and more big legal bills are on the way.

The payments approved Monday will nearly empty the state’s Constitutional Defense Fund, so Idaho Gov. Butch Otter said he’ll ask lawmakers to replenish it when they meet in January.

“We get sued by so many people we can’t keep track,” Otter commented acidly between back-to-back meetings Monday to approve the payments.

Asked why the state is losing so many big lawsuits – and having to spend so much taxpayer money on the winning sides’ legal costs – Otter said, “You’re going to have to ask the lawyers why we’re losing. But I can tell you that in every case, we were either defending statutes or our constitution.”

Idaho established the Constitutional Defense Fund with a $1 million deposit in 1995, under then-Gov. Phil Batt. Doing so helped state officials avoid asking the Legislature annually for funds to make court-ordered payments, Otter said.

Since then Idaho lawmakers have put another $2.5 million into the defense fund, including a$1 million deposit in 2014. Before Monday’s vote it had a balance of $1.23 million.

The state lost another major constitutional case last week in U.S. District Court, when the court ruled a 2014 Idaho law making it a crime to surreptitiously videotape agricultural operations violated the First Amendment and the Equal Protection Clause of the U.S. Constitution.

Asked if that case, too, is likely to result in a big bill for the state to pay the winning side’s legal fees, Idaho Attorney General Lawrence Wasden said, “Certainly it is a possibility.” But the state hasn’t decided whether it will appeal, he said.

“There were a number of high-profile cases that we haven’t come out on the right end; there are others that we have,” Wasden said. In the same-sex marriage case, four Idaho couples sued and successfully overturned Idaho’s ban on gay marriage. The latest court order is for $226,891 plus interest for attorney fees and costs on appeal; the state already paid the couples’ attorneys $401,663 for the U.S. District Court portion of the case. Idaho unsuccessfully appealed the case both to the 9th U.S. Circuit Court of Appeals and to the U.S. Supreme Court.

In the abortion case, a woman from Bannock County was prosecuted for illegally self-inducing an abortion with drugs purchased over the Internet, in violation of several Idaho laws. She sued; the case went to the 9th Circuit twice, but the woman prevailed and several Idaho anti-abortion laws were overturned, including one passed in 2011 that sought to ban all abortions after 20 weeks on grounds of fetal pain. The state was ordered to pay more than $500,000 of Jennie Linn McCormack’s attorney fees and costs.

In the third case, a protest group evicted from a tent encampment across from the state Capitol challenged state laws and rules restricting camping and protests that were enacted in 2012 in response to its Occupy Boise protests. Some of the rules were upheld and others determined to be unconstitutional, but the court said the no-camping statute had been unconstitutionally applied to the protest group. The state and the American Civil Liberties Union, which represented the protest group, disagreed over the attorney fee award but settled, with the state agreeing to pay $137,364 plus interest.

Otter said he’ll ask lawmakers in January to replenish the fund into the million-dollar range.