Tuesday, June 05, 2007

Pyrrhic Victory?

The ruling in State v. Yzaguirre was recently announced. In it the Idaho Supreme Court did what it often does; it split the baby.

State v. Yzaguirre concerned the Ada County Commissioners going into closed executive session. The Idaho Attorney General challenged this action as violating the Idaho open meeting law. All meetings must be open to the public, unless an exception applies. The Court ruled in favor of the County’s argument that an attorney does not need to be present when officials use a “litigation exception” to go into executive session. The Court also ruled in the State’s favor, saying that the Commissioners broke the law by not making written minutes of the meeting. A recording wasn’t enough. So, a split.

Ada County’s attorney, Patrick Furey, has an opinion in the Statesman that implies that the County won hands down, and he decries the way the Statesman has reported the issue. Former commissioner, and a defendant in the lawsuit, Judy Peavey-Derr accused the Statesman of yellow journalism, and the other commissioners made similar improvident statements. They may get a chance to eat those words.

The case went to the Supreme Court on a motion for judgment on the pleadings after the State won in a lower court.
The district court granted the State’s motion for judgment on the pleadings, holding that I.C. § 67-2345(1)(f) applies only when a governing body is meeting with its legal counsel, and that the audio recording failed to satisfy the requirement in I.C. § 67-2345(1) that the vote to enter executive session be “recorded in the minutes.”
A judgment on the pleadings means that the court decides the case based on what the parties allege. They assume that the non-moving party’s (here, the County) pleadings are correct, then decide the case on that. There is no development of the facts before the motion

So, the County had a partial win based on its allegations. The funny thing about allegations is, sometimes they’re wrong. The Supreme Court sent the case back to the district court for further proceedings. If Attorney General Wasden chooses, the State can litigate the case and try to develop facts that will lead to a different outcome.

If the AG proceeds, it will almost certainly lead to the Commissioners being placed under oath and questioned about what did happen in the closed meeting. Remember, the Commissioners met in a closed meeting with Boise Councilman Vern Bisterfeldt over a housing development issue. At the time the City and County were disagreeing, and a lawsuit could have resulted. (Thus, the litigation exception.) So this closed door meeting discussed a controversial housing development and included the potential opponent.

A third issue could also lead to a different outcome. The law at issue allows the litigation exception when litigation is pending (it wasn’t) or “where there is a general public awareness of probable litigation.” Whether such a general public awareness existed has not yet been determined. If not, the County loses. The Supreme Court described the situation:
In the executive session, the Commissioners and Councilman Bisterfeldt discussed relations between Boise City and Ada County which had become strained over the issue of a potential subdivision approval in the county and the impact of county development on the cost of city services. The meeting did not relate to pending litigation, but the Commissioners claim that the topics discussed were the subject of probable future litigation.
The problem for the Commissioners is that the matter hadn’t been reported much, if at all, and it’s very doubtful that there was a “general public awareness.” If this gets litigated, this looks like a loser for the County.

I wonder if the Commissioners really want to testify about this. I wonder if they think it’s a good use of taxpayer money to continue to pay the private, not county, attorney to defend a $450 fine. This case is not the unqualified win Furey would have you think it is, and it is far from over.


etm said...

Hi IdaBlue,

Sorry to leave this in your comments, but I couldn't find an email address for you...

I am a doctoral student in media and public affairs at Louisiana State University in Baton Rouge and my research focuses on the impact of blogs on state politics around the country.

A quick profile of my research is available here: http://governing.typepad.com/13thfloor/2007/04/queen_of_the_st.html

Previous blog research has focused on the impact of the nation’s big-name, A-list blogs on American politics. Stories about the impact of those blogs range from the downfall of Trent Lott to Dan Rather’s memo-gate to George Allen’s more recent Macaca moment. But to date, no one has considered the impact of blogs at the state level.

My observations about the impact of bloggers on state policy and politics in Louisiana have triggered my interest in looking at that dynamic in states around the country. To that end, I am requesting your help in compiling data for my research. I have prepared an online survey for both bloggers and blog readers to complete.

The survey is available online through June 30 at the following link:


I would be grateful if you, as a blogger, would:

First, take a few minutes to complete the survey yourself;

Second, circulate this request among other bloggers and your readers and/or post a link to this survey online urging readers to both complete the survey and forward the link to others;

Third, contact me if you have any questions, concerns or input regarding this research endeavor.

I have created a blog (http://stateblogresearch.blogspot.com) that will track this research as it progresses and I would be happy to keep you posted on this project as it moves forward.

All feedback can be directed to stateblog@gmail.com.

Thank you in advance for your help on this!

Best regards,
Emily Metzgar

Alan said...

Emily, I'd be happy to help out.