State v. Yzaguirre

On Monday, May 7, at 0850, State v. Yzaguirre is going to be argued in front of the Idaho Supreme Court. The Court's description of the case follows, but the gist is that Ada County Commissioners met in an executive session, i.e., a closed meeting.

They talked about various things, one of them being possible litigation against the city. City councilman Bisterfeldt, a potential opponent in the litigation, was in the closed meeting. I'm a bit fuzzy on the history, but I think AG Wasden brought an action against the Commissioners for the open meeting violation (Idaho Code 67-2345). Rather than pay a $150 fine (each), the Commissioners have chosen to argue this all the way up the ladder, devoting way more resources than just paying the $450 fine would entail. I guess they're taking a principled stand.

The principle is kind of pointless now, since the last legislature passed a change to the open meeting law (Senate Bill 1085) that would clarify the issue being litigated. Said another way, the Supreme Court's ruling won't clarify the law for future cases, as the law has been changed. It is now all about the fine.

The Court's statement:

On June 15, 2005 Ada County Commissioners Rick Yzaguirre, Judy Peavey-Derr, and Fred Tilman met in open session. Upon commencement of the meeting the Board voted to go into closed executive session under the “litigation exception,” I.C. § 67-2345(1)(f), to meet with Boise City Councilman Vern Bisterfeldt. According to the Commissioners, the items discussed in the meeting were the subject of probable future litigation. However, no legal counsel was present at the meeting.

The state filed suit against the Commissioners, seeking a declaration that the executive session violated the open meeting law and requesting the imposition of civil penalties against each of the Commissioners individually. 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. It also held that an 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.”

The Commissioners appeal. The Idaho Association of Counties is appearing as amicus curiae on the issues of whether the litigation exception requires the presence of an attorney and whether there is a good faith exception to the civil penalty provision of I.C. § 67-2347(2).