Idaho's Constitutional Defense Fund Goes Toward Losing Cases

BOISE, Idaho (AP) — A special state fund created to help Idaho navigate state sovereignty conflicts with the federal government has paid out more than $2.1 million over the last two decades, nearly all of it spent on losing legal battles.

The Constitutional Defense Fund hasn't paid for a winning case since 1996, when Idaho reached a settlement with the federal government over nuclear waste storage and cleanup. The law allows the fund to be spent proactively — such as filing lawsuits or hiring public relations specialists to fight for state sovereignty — or retroactively, defending Idaho from lawsuits. A review of historical documents shows that it's almost entirely gone to the latter.

The next nine cases have all been losers for the state, including three cases defending abortion laws, two lawsuits involving gay rights and two lawsuits over the steps required to get initiatives on the ballot.

"It's a significant amount of money," said Randy Stapilus, an author and publisher who has extensively covered Idaho politics. "The question is not necessarily having a fund that could be used in extreme cases, but maybe how frequently it's been used and the wisdom of using it in cases where there's been lots of legal warning that the case may not be successful."

There's currently about $322,000 remaining in the account. Earlier this year, a judge struck down an Idaho law banning undercover investigations of farming operations, and the fund could be drawn down further if the state uses it to pay the plaintiff's attorney fees for that case.

Gov. C.L. "Butch" Otter has said he intends to ask lawmakers in January to shore up the fund with another $1 million. The fund has remained true to its purpose and concept, "defending the sovereignty of our state and our citizens," Otter said in a statement.

Otter's spokesman, Jon Hanian, also noted that it's hard to predict how a case will turn out until it's argued and a judge has made a ruling.

The fund was created in 1995 to finance Idaho's legal confrontations with the federal government, though critics said they feared it would become a slush fund for political allies and Republican lawyers. It was seeded with $1 million.

The first payments went to Boise legal firm Elam & Burke for then-Gov. Phil Batt's battle with the feds over nuclear waste stored at the Idaho National Engineering Laboratory (now called simply Idaho National Laboratory, or INL).

Ten months of courthouse wrangling and backroom negotiations resulted in a win, of sorts, for the state — a deal that traded resumption of limited nuclear dumping at the lab for promises that most radioactive waste would eventually be removed. By April of 1996, more than $190,000 had been paid to Elam & Burke for the legal work.

A few years later, the council approved launching another legal battle with the feds over the proposed reintroduction of grizzly bears into Idaho's Bitterroot Mountains. The council members approved spending money on filing the lawsuit and on hiring a public relations firm to help sway others to the cause, according to the meeting minutes. But they ultimately ceded over that effort to the Idaho Attorney General's office, so no money was spent on the matter according to the state's records. The feds later backed off the reintroduction plan.

The next case, Idaho Coalition United for Bears v. Cenarrusa, arose out of a 1996 bear beating initiative sponsored by a large national association that had pushed similar initiatives elsewhere. Some feared that Idaho would get overrun with initiatives, but lawmakers changed the law to raise the hurdles, requiring at least 6 percent of registered voters in 22 counties.

That law was challenged in court in 2001, and a federal judge struck down the 22 county provision.

The fund has also been used for cases where lawmakers were warned that new laws would likely not meet Constitutional standards. Such was the case for Idaho's abortion law cases — most recently, state Attorney General Lawrence Wasden's office warned lawmakers that a proposed fetal pain law would likely be found unconstitutional by the courts.

Still, lawmakers passed the fetal pain law, and later, the state lost a lawsuit over the issue. That case led to a $137,000 payout of legal fees to the winning side.


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