Because Freedom Can't Protect Itself

2001 Legislative Report

The 2001 legislative session got off to a slow start, following much praise and support for Governor Kempthorne’s agenda as promoted in his State of the State Address.  As the session wore on, however, leadership from the Governor’s office was notably absent while legislative rancor was notably abundant.

First, the good news from this legislative session:   

DNA BILL PASSES UNANIMOUSLY:  In the past decade, DNA has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.  Because of its scientific precision, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant.  DNA technology has been used by prosecutors for nearly a decade in seeking convictions, yet Idaho inmates had no statutory right to tests that could exonerate them.  Until now!  The ACLU’s own Dennis Benjamin drafted legislation which allows for post-conviction DNA testing.  House Bill 242 was introduced by Representative David Beiter (D, Boise) and passed both the House and the Senate without opposition.

In the past decade, there have been more than 85 post-conviction exonerations in the United States based upon DNA testing.  At least 10 individuals sentenced to death have been exonerated, some of whom came within days of being executed.  The Idaho ACLU worked closely with the State Appellate Public Defender and the State Crime Lab in pushing this legislation and stopping opposition by the Attorney General’s Office, the Prosecuting Attorney’s Association, the Association of Counties and the Sheriff’s Association.  We were able to address everyone’s concerns and get an effective bill through this session that we all could live with.

FARM WORKERS GET MINIMUM WAGE:   Following years of struggle, Idaho farm workers will finally get meaningful minimum wage protection.  A bill drafted by an interim committee and initially supported by the Governor would have mirrored federal law and not extended minimum wage protection to a single additional farm worker in Idaho.   A coalition of groups opposed this sham legislation sponsored by Representative Doug Jones (R, Filer) and passed by the House.  Faced with unrelenting public opposition, Senator Bart David (R, Idaho Falls) brokered a compromise which extends minimum wage protection to 95% of all farm workers.  This amendment passed the Senate and the House with some opposition.  The overwhelming public support for Idaho’s farm workers was obvious and well organized.  A group of students protested on the Senate floor and received mixed publicity for their actions.  The protest was peaceful, however, the reaction was to call for riot troops.   Security in the capitol has been visibly and permanently increased as a result of the protest.

TAX CREDIT FOR RELIGIOUS SCHOOL FAILS:  House Bill 311, sponsored by Representative Lenore Barrett (R, Challis), would have provided state income tax credit to individuals and corporations who donated funds to religious schools for qualifying students. The stated purpose of this legislation was to “relieve the financial and enrollment pressures with the Idaho Public School System.” The Idaho ACLU opposed this legislation as unconstitutional state support of religion as it encouraged enrollment in religious schools.  The House passed the bill despite our objection and that of the Idaho Education Association.  Senate leadership then assigned the bill to the Senate Education Committee, chaired by Senator Gary Schroeder (R, Moscow), who opposes public funding of religious schools.  Senator Schroeder declined to give the bill a committee hearing and it quietly died in his desk drawer.  It will, no doubt, be back again next year as providing so-called “school choice” is a priority of the majority Republican party.

PUBLIC RECORDS EXEMPTIONS NARROWED:  Public access to public records was under attack this session.  Public records are subject to disclosure and inspection, unless they are specifically exempted.  Several bills were introduced which would expand exemptions to public records, and deny public access to important documents. 

House Bill 18, proposed by the Department of Corrections, would have severely restricted public records available concerning inmates or prison operations.  The original draft even included defining the Department of Corrections as a law enforcement agency for public records purposes.  Particularly troublesome was language exempting “records of a subjective nature” that would “affect professional candor.”  The ACLU, the State Appellate Public Defender, the Idaho Press Club and the Idaho Daily Newspapers opposed this legislation and it was amended following sub-committee hearing.  The parties met and agreed to work out specific document exemptions in IDOC rules over the summer. 

House Bill 151 provided that public records requests could not be used as a vehicle for civil or criminal discovery.  Once again, the ACLU, the State Appellate Public Defender, the Idaho Press Club, the Idaho Daily Newspapers, the United States Public Defender and our own Tom McCabe voiced their objections at committee hearing.  The bill was amended to allow for one-time public records requests by criminal defense attorneys.  While this amendment is not ideal, it is certainly better than the bill as originally proposed.

House Bill 152 would have exempted prosecuting attorney’s files from public disclosure.  Opposition to this was swift and strong.  The bill’s sponsor, Representative Tom Moss (R, Blackfoot) withdrew it quickly.    

While the ACLU could claim some legislative victories, we certainly had our share of defeats also.  Religious and political conservatives won major victories at the expense of civil liberties.  Low income Idahoans, especially women, were specifically targeted this session.    

SEPARATION OF CHURCH AND STATE:  The Free Exercise of Religion Act which passed last year, went into effect of February 1, 2001.  Senator Gary Schroeder (R, Moscow) and Representative Tom Trail (R, Moscow) submitted bills early in the session to repeal the act outright or amend it by exempting civil rights, child protective and domestic abuse actions.  Both of these efforts failed.  House and Senate leadership refused to even hold committee hearings on the bills.  Senator Denton Darrington (R, Declo), Chair of the Senate Judiciary and Rules Committee, stated that he would do nothing and “wait to see if anything bad happened.” 

Senate Bill 1137 allows family members to erect roadside memorials to their loved ones lost in automobile accidents.  Current Idaho law allows only for the placement of a gold star.  This bill allows placement of any memorial that conforms to Department of Transportation guidelines regarding size, material and placement.  Interestingly enough, the maximum size allowed is 17 x 36 inches -- about the size of a cross.  The ACLU testified before the Senate Transportation Committee that once the state opens a forum for expression, it cannot limit that expression because of its content.  The committee was reminded that family members could elect to remember their loved ones by erecting memorials that could be unpopular or even offensive to some.  The ACLU’s comments were well received and the bill passed both the Senate and the House. 

REPRODUCTIVE FREEDOM:  Idaho women’s rights of reproductive choice took hard hits this legislative session.  Anti-choice forces, such as Idaho Chooses Life, were ever-present in the Statehouse and they found a sympathetic ear in Representative Tom Loertcher (R, Iona) who introduced House Bill 309 which removed the words “or health” from legislation allowing for state Medicaid funding for abortions under certain restrictive conditions.  State funds can now only pay for abortions in cases of “rape, incest or where the mother’s life is in danger.”  State funds can no longer be used for medically necessary abortions where the mother’s health is in danger.  This legislation is offensive as it targets low-income women and effectively prohibits them from making personal decisions that are not state approved. Low-income women now have no real choice and are forced carry health threatening pregnancies to term or somehow pay for health services that they, by definition, are unable to afford. 

The ACLU joined forces with the Idaho Women’s Network, Planned Parenthood and the Idaho Nurses Association to oppose this offensive legislation.  The coalition worked hard to educate members of the House and Senate, as well as the Governor, and to respond to misinformation presented by proponents of the legislation.  The House overwhelmingly passed the bill, but opposition was strong in the Senate.  A motion to amend the bill to further define “health” was narrowly defeated (8/7) in the Senate State Affairs Committee.  Following emotional debate on the Senate floor, an unprecedented protest was led by women Senators.  Twelve senators protested by not voting on the bill due to personal and professional conflicts of interest.  They stated that being forced to vote on this bill went against the oath they took for office and their vows to uphold the Idaho Constitution.  House Bill 309 passed the Senate 20 to 3, with 12 protesting.  Representatives of the ACLU and the Idaho Women’s Network met with Governor Kempthorne’s legal counsel to point out the bill’s constitutional infirmities and the real health risks to women in a final effort to defeat House Bill 309.  Governor Kempthorne signed the bill March 31, 2001, the day after the meeting. 

House Bill 340 amends last year’s parental consent law, which the ACLU and Planned Parenthood successfully challenged in federal court.  Judge Williams preliminarily enjoined certain provisions of the law, while allowing others to go into effect.  Nine provisions of the law were challenged, and three of those enjoined.  House Bill 340 addressed only two of the challenged provisions and actually made the law worse in that it now further limits venue options for young women seeking judicial by-pass.  The ACLU testified at both house and senate committee hearings that the amendments would not make the lawsuit go away. 

Senator Judi Danielson (R, Council) brought to public light the state’s costs of defending unconstitutional legislation. The Legislative Budget Office estimates the Attorney General’s litigation costs to be about $44,000 last year on parental consent alone.  Defense costs of earlier abortion funding restrictions are estimated to be in the hundreds of thousands of dollars.  Passage of House Bills 309 and 340 ensure that taxpayer funds will continue to be used defending unconstitutional legislation well into the future.     

INMATE COLLECT PHONE CALLS:  The Office of Performance Evaluations released a report in January 2001 addressing the high cost of inmate telephone calls.  Currently, Idaho inmates in both state and county facilities can only place collect telephone calls.  The person receiving the call -- the inmate’s family or friends -- must pay the charges.  The inmate does not pay.  Those charges range in cost from $3.10 to $11.46 for an 18 minute call.  The Idaho Department of Corrections receives a 41% commission on all collect telephone calls and has received about $3 million dollars in commission revenues in the past 4 years, which has been spent on everything from personnel to capital improvements.  Representative Steve Smylie (R, Boise) introduced House Bill 240 which would reduce the commission rate to 20% and relieve the financial burden placed on the family and friends of Idaho inmates.  The House Judiciary and Rules Committee held the bill.

WAR ON DRUGS:  Senate Bill 1119, sponsored by the Senator Grant Ipsen (R, Boise) and the Idaho Realtor’s Association provides expedited eviction process to a landlord who reasonably believes that “any person [has] engaged in the unlawful delivery, production or use of a controlled substance on the leased premises.”  The bill does not distinguish between tenants who actually engage in drug activity and innocent tenants who may not even know it’s occurring.  The “any person” language does not distinguish between actual tenants, guests or even trespassers.   The ACLU alone testified in opposition to this legislation, which passed both houses easily. 

Senate Bill 1150, sponsored by Senator John Sandy (R, Hagerman) would have created the nation’s first “drug pusher” registry.  The bill, which was supported by law enforcement and the Idaho Education Association, easily passed the Senate.  However, it never made it to committee hearing in the House and failed this session.