Idaho to pay up after failed defense of anti-union law

BOISE – Idaho’s top elected officials agreed Wednesday to pay $280,000 in attorney fees and costs to a group of unions who successfully challenged an anti-union bill passed by the Idaho Legislature in 2011.

The law, which was immediately blocked by a court and never took effect, banned “job targeting” or “market recovery” programs, in which unions use funds they collect from workers to subsidize bids by union contractors on jobs.

When lawmakers were considering the measure in 2011, the Idaho Attorney General’s office warned that it likely would be overturned in court because it conflicted with the federal National Labor Relations Act. But the bill, which included criminal penalties and hefty fines for violations, passed anyway.

A group of labor unions immediately sued in federal court and won. The state unsuccessfully appealed to the 9th Circuit Court, which ruled in 2015 that “it is well settled” that the NLRA protects such activities by unions.

On Wednesday, Idaho’s Constitutional Defense Council, which consists of the governor, the attorney general, the House speaker and the Senate president pro-tem, voted 4-0 to approve the payment, dipping into the state’s Constitutional Defense Fund, which they oversee.

After the brief council meeting, which House Speaker Scott Bedke and Senate President Pro-Tem Brent Hill attended by phone, Otter said, “We lost.”

Asked about the Legislature ignoring the attorney general’s advice and passing the bill in the first place, he said, “I think the attorney general has one role to play, and that role is in his analysis and his point of view to advise the Legislature … if something is subject to constitutional question.” He added, “I would tell you, that was one of the reasons we set up the Constitutional Defense Fund in 1995.”

This year, lawmakers deposited another $2 million in state general tax funds into the defense fund, at Otter’s request, on top of the $2.5 million already deposited since the fund’s creation, anticipating legal bills including this one.

The fund was set up in 1995 to defend state sovereignty and constitutional issues, and at first was used to cover costs for litigation regarding the Idaho National Laboratory; since then, it’s been used largely to pay the attorney fees and costs of the winning side when the state has lost lawsuits over unconstitutional legislation.

“The Legislature has got to be guided by their public consciousness in how they’re representing the people,” Otter said. “They can accept advice or reject advice.”

James Piotrowski, attorney for the unions – and now a Democratic candidate for Congress – said he warned the Legislature that passing the law would cost the state “a bunch of money.”

“That’s exactly what happened,” he said. “This is just a really bad use of taxpayers’ money to advance a political agenda in the worst possible way.”

Deputy Attorney General Brian Kane said the unions sought more than $374,840 in costs and attorney fees; the state negotiated that down to $280,000.

“Our obligation is to defend state policy choices made by the Legislature in the form of statutes, and so we do our job, as we did in this case,” Idaho Attorney General Lawrence Wasden.