The state of Idaho has spent millions defending its laws from legal challenges in recent years, and some of the highest bills have come from defending state laws that restricted ballot initiatives and abortions.
Money to defend lawsuits at the Legislature comes largely from two state funds, which have paid out nearly $11 million in legal bills since 2017, according to records obtained by the Idaho Statesman.
Over the last two decades, to name a few, the state has paid Planned Parenthood, a women’s reproductive rights advocacy group, close to $600,000 in legal fees, according to records. It paid $474,000 over another lost abortion lawsuit. And it paid more than $663,000 to defend itself against attorneys representing lesbian couples who challenged the state’s same-sex marriage ban and won, one of the costliest lawsuits for Idaho yet.
When lawmakers again tried to make it more difficult to place voter initiatives on the ballot, they were sued by Reclaim Idaho, an advocacy group. The state lost and paid the organization more than $150,000 in legal fees.
Luke Mayville, the co-founder of Reclaim Idaho, said in an email that it is “shameful” that elected officials “spend so much time violating the basic rights of Idaho citizens” and use taxpayer money to defend their laws.
“They attack the citizens and make the citizens pay for it,” he said.
Idaho fund meant to defend against feds
The Idaho Legislature defends state laws in court primarily with two pots of money: the Constitutional Defense Fund and the Legal Defense Fund. Decisions about spending from the constitutional fund are made by the leaders of both legislative chambers, the governor and the attorney general, while the legal defense funds are made by the Legislature’s leadership.
At the time the constitutional fund was created, in 1995, lawmakers said it would help defend the state’s rights from federal initiatives. The first set of expenses was over conflicts with the federal government about nuclear waste. But in the years since then, the account has been used to defend state laws raising the requirements to place citizen-led initiatives on the ballot, limiting abortions and banning same-sex marriage — cases the state has lost.
“It’s become a backstop for passing shaky legislation,” said Sen. Melissa Wintrow, D-Boise.
The second account, the Legal Defense Fund, covers general legal expenses for the Legislature and was established in 2012, a year after lawmakers rejected an effort to set up an office of legal counsel within the Legislature, according to previous reporting by the Associated Press. The office was intended for lawmakers to avoid overly relying on the attorney general’s opinion on whether proposed legislation is legal. Attorney General Raúl Labrador has said he would support the establishment of such an office, he told Idaho Reports in December, noting that he worries his legal opinions could later be used by opponents in court.
The Legal Defense Fund has spent over $10 million since 2017, according to records obtained by the Statesman. The general account has outspent the constitutional fund by absorbing millions in costs ranging from legal settlements with the Federal Communications Commission to more than $2 million paid to Boise law firm Holland & Hart for legal representation.
After spending close to $4 million in the 2017 and 2018 fiscal years, largely because of big payouts in a broadband settlement with the FCC, the Legislature has averaged $528,000 in expenses from the Legal Defense Fund annually over the last five fiscal years. It’s unclear what specific cases all the money was spent on.
In some cases, legal fees have been paid out of neither account. After Idaho lost a lawsuit that challenged its law to prevent transgender people from changing the gender on their birth certificates, a federal judge ordered Idaho to pay more than $321,000. The state paid the bill through a supplemental appropriation, according to Idaho Reports.
House speaker suggests end to constitutional fund
House Speaker Mike Moyle, R-Star, expects to establish a counsel’s office within the Legislature this year, he told the Statesman, in part because Labrador has been more reluctant to issue written opinions on proposed legislation than previous attorneys general.
Moyle said in the past the Legislature has hired outside counsel rather than using the attorney general’s office for representation if a particular case requires an attorney with a certain expertise. Moyle also noted that sometimes the Legislature and attorney general will respond to lawsuits with different arguments.
“We want to make sure we did the taxpayers and the state good and sometimes outside counsel was more learned in the subject, and you had a better opportunity to win if you hired outside counsel,” he said.
Moyle said there has been discussion of eliminating the constitutional defense fund, because lawmakers have mostly stopped using it.
“A case could be made that we should end the constitutional defense fund because we just don’t use it like we used to,” he said. “We change directions more” and “use more and more outside counsel.”
Lawsuits with state agencies result in large bills
Since January 2020, the Legislature has spent more than $854,000 defending its laws before the Idaho Supreme Court, according to records obtained through a public records request. More than half of those taxpayer expenses were spent on lawsuits with two government agencies — the State Treasurer’s Office and the superintendent of the Idaho Department of Education.
In 2020, lawmakers shifted funding away from the Department of Education, which is led by the school superintendent, to the State Board of Education. The former superintendent, Sherri Ybarra, fought the Legislature in court and ultimately lost. The case cost the Legislature more than $173,000.
The Legislature also spent over $347,000 on a lawsuit after leaders of the House and Senate sued the state treasurer, Julie Ellsworth, to evict her from her office at the Capitol. Lawmakers wanted Ellsworth out to expand office space for legislators, while Ellsworth argued the treasurer had always occupied the same office since the building was built in 1912. The Idaho Supreme Court ruled in favor of the Legislature. The lawsuit began in 2019, and the records obtained by the Statesman date back to 2020.
State funds have periodically been transferred to the legal accounts over the years. The Constitutional Defense Fund currently has a budget balance of $1.1 million, and the legal defense fund has a balance of $2.7 million, according to state records.
A lawmaker proposed creating a separate $2 million Federal Overreach Legal Defense Fund in 2021, but the bill did not make it out of committee, according to Idaho Reports.
Mayville, of Reclaim Idaho, said he thinks the Legislature’s problems begin with its laws.
“The root of the problem is that elected officials knowingly enact laws that are unconstitutional,” he said. “They know that taxpayer dollars will be wasted defending these laws in court, but they enact the laws regardless—usually in response to demands from special interest groups. It needs to stop.”
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