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2002 Legislative report

 

The 2002 Idaho Legislature got off to a rocky start.  Budget cuts and term limits consumed the early days of the session.  Cuts in education funding dominated debate in the late days of the session.  Throughout the session, it was evident that public dissatisfaction with “business as usual” at the Statehouse continues to grow. 

ANTI-TERRORISM

Anti-terrorism legislation was submitted early in the session by the Attorney General’s office in response to the events of September 11^th.  Among the proposals were yet more exemptions to the public records act, legislation defining terrorism and a revision of the Communications Security Act. 

House Bill 459 exempts from disclosure government records related to building, security and evacuation plans.  The ACLU and media organizations opposed the bill as unnecessary and overly broad.  Following a sub-committee meeting, the exemptions were significantly narrowed and the bill was amended to the satisfaction of the ACLU, the Press Club and the Idaho Allied Daily Newspapers.  The bill easily passed both houses. 

House Bill 460 would have allowed records not specifically exempted to be withheld at the discretion of the government, subject to later judicial review.  We feared that this would give records custodians far too much discretion to withhold records for what could be inappropriate reasons.  Was the person requesting the documents of Middle Eastern descent?  Should this be a valid reason to withhold documents?  We were also concerned that the fear of litigation could discourage the public from seeking important public records. Opposed by the ACLU and media groups, this legislation passed the House and was held in the Senate State Affairs Committee.  

House Bill 517 would have allowed the governor to declare state of emergency and quarantine persons and livestock.  This passed the House and was held in the Senate State Affairs Committee.  The ACLU opposed this bill as it did not have an appropriate review of the governor’s decision to quarantine citizens and deprive them of their freedom of movement. 

Senate Bill 1348 defines terrorism as “acts dangerous to human life … intended to …intimidate civilians … or … influence government policy …” and provides for up to life imprisonment for acts of terrorism.  The ACLU and some student organizations opposed this language as too broad and including individual acts of protest which do not threaten others, such as laying in the path of a bulldozer poised to clear an old growth forest.  While such conduct may violate criminal law, it certainly should not be prosecuted as terrorism!  Despite our objection the bill passed both houses, with some members of the House Judiciary and Rules Committee stating that this would be used only in high profile cases and they trusted the discretion of our prosecuting attorneys.

Senate Bill 1349, proposed by the Attorney General, initially would have made listening to the radio an unlawful activity.  The word “not” was apparently inadvertently omitted from a rather important section of the bill that nevertheless passed out of the Senate Judiciary and Rules Committee.  When the ACLU brought the error to the attention of the Attorney General’s Office, the bill was quickly corrected.  Thanks to the keen eye of Board Member Tom McCabe, we can continue to receive news, information and entertainment through the public airwaves without fear of criminal prosecution.  This only goes to show that we’re not paranoid when say that we must be vigilant to guard our most basic liberties when the legislature is in town!

Following the attacks of September 11^th, there were numerous proposals to expand criminal penalties and restrict civil liberties.  The Idaho Legislature rejected many of these proposals.  This was encouraging as some legislators who have not been supportive of the ACLU spoke passionately in defense of civil liberties and cautioned their peers against over reacting and passing poorly drafted legislation in haste without fully considering the consequences.

DEATH PENALTY

The Idaho Legislature was asked to consider prohibiting the execution of persons with mental retardation and join the national consensus in finding such executions to be inconsistent with our evolving standards of decency and unacceptable in a civilized society.  The House Judiciary and Rules Committee held House Bill 629, sponsored by Representative David Bieter, apparently agreeing with the Attorney General that the legislation was both “unnecessary” and “premature” pending the United States Supreme Court’s decision on the matter expected this July.  Of the thirty-eight states with the death penalty, eighteen ban executing persons with mental retardation.  Since the death penalty was reinstated in 1976, at least thirty-five persons with mental retardation have been executed.  The United States and Kyrgystan are the only two countries in the world that allow such executions.  Contrary to the opinion of our elected representatives, overwhelming evidence indicates that legislation prohibiting the execution of persons with mental retardation is both timely and necessary.

Representative Wendy Jaquet sponsored House Bill 542 which would have allowed the Department of Correction discretion to remove death row inmates from solitary confinement.  The bill passed the House 54 to 14 but Senator Denton Darrington, chair of the Senate Judicary and Rules Committee, refused to give the bill a hearing in his committee, publicly stating that convicted murderers deserve the punishment they get.  The ACLU supported the bill as not risking public safety while potentially saving tax dollars and recognizing the fundamental humanity of all persons. 

ACCESS TO COURTS

Senate Bill 1386, sponsored by Senator Bart Davis, removes the presumption of indigency for inmates seeking to file lawsuits and get a waiver of filing fees.  The ACLU opposed one section of the bill which allows the court to order inmates to pay fees upon a finding that they are so able, but without providing notice and opportunity to be heard to the inmate and, dismissing the action if the fees are not paid within two days.   These requirements are unfair as prison mail is notoriously slow and an inmate could have a meritorious action dismissed before they even know that the court has ordered them to pay.  The bill easily passed both houses. 

House Bill 598, Sponsored by Representatives Bill Sali and Dick Harwood, created a civil cause of action for presenting false testimony.  While lying should be discouraged, and perjury is a crime, this legislation would have allowed anyone injured by testimony later determined to be false, to sue.  The ACLU opposed this as unnecessary, burdensome and chilling to anyone who testifies before any fact finding body, including legislative committees.  The sponsors of the bill explained that this was the solution to the Klamath Falls, Oregon problem and would put an end to “junk science.”  We always thought that competent advocacy and cross-examination achieved the same goal.

House Bill 618 sought to create pre-litigation screening panels in actions against school districts.  The ACLU, and a large coalition of other groups, opposed this as incredibly one-sided and unfair to litigants who seek to assert their rights against a school district.  Following hours of testimony in opposition even the bills sponsor, Representative Todd Hammond, voted to hold it in committee.

DISCRIMINATION

In a positive move, the Idaho Legislature voted overwhelmingly to end state endorsed discrimination against disabled parents by passing House Bills 577 and 579.  These bills prohibit discrimination based on disability and create an evaluation system that takes into consideration the use of adaptive equipment and supportive services in child custody determination, adoptions, terminations of parental rights and guardianship proceedings.  The ACLU supported this bill as finally and comprehensively recognizing the rights of disabled parents. 

Senate Bill 1469 would have made English the official language of the State of Idaho.  The ACLU, and many other groups, opposed this as divisive, discriminatory and absolutely unnecessary.  The bills sponsor, Senator Shiela Sorensen, apparently received enough public comment critical of the proposal to convince her to hold the bill this session.

REPRODUCTIVE RIGHTS

Our long-standing allies, Planned Parenthood and the Idaho Women’s Network, joined us once again in opposing what has become the annual legislative assault on reproductive freedoms.  Following the brutal beating last summer of a young pregnant woman, the anti-choice forces drafted Senate Bill 1344 which allows murder, manslaughter and aggravated battery prosecutions for crimes against human embryos and fetuses.  Although key legislators who supported this bill repeatedly stated, “this is not about abortion” the obvious intent of the legislation is to elevate the status of a fetus or embryo, from the point of conception, to equal that of the pregnant woman.  The recognition of fetal rights creates a dangerous precedent and creates conflict with a woman’s right to choose.  It is not hard to imagine now recognized fetal rights interfering with a pregnant woman’s right to self-determination and ultimately resulting in the policing of pregnancy.  However, bill sponsor Representative Celia Gould, stated during the floor debate that she did not care about the slippery slope this would create.  Senator Jim Risch, was publicly incensed that pro-choice forces saw this as an abortion bill, which he repeatedly and loudly insisted it was not.  However Senator Risch contemporaneously stated in a letter mailed to hundreds of “Fellow Pro Lifers” that this legislation was a “great pro-life victory.”  Opponents of the bill were at least accurate in their assessment of, and consistent in their message about, what is in fact a threat to legal abortion. 

Senators Shiela Sorensen and Betsy Dunklin proposed alternate legislation which would have enhanced penalties for violent crimes committed against pregnant women.  This legislation appropriately focused on the devastating harm to the pregnant woman caused when a violent attack results in stillbirth or miscarriage.  Senate Bill 1468 passed the Senate, but was held in the House Judiciary and Rules Committee.  The anti-choice organization, Idaho Chooses Life, opposed this bill and it is obvious that they, along with the Idaho legislature, do not choose women when addressing violent crimes.         

FIRST AMENDMENT

Following the events of September 11^th, there are those who believe that allowing organized prayer in our public schools would solve all of our nation’s problems.  House Joint Memorial 17 urges the U.S. Congress to adopt the Ishtook Amendment to the United States Constitution and allow voluntary school prayer.  The House passed the memorial and sent it to the Senate where it passed by a voice vote.  The ACLU opposed his as divisive and undermining the separation of church and state, and ultimately religious freedom as we know it. 

Senate Bill 1330, would have allowed the court to consider in custody proceedings which parent might best contribute to a child’s civic, moral and familial upbringing.  The ACLU opposed this as an impermissible inquiry into a parent’s personal and political beliefs and level of activism.  Should child custody be denied because a parent doesn’t vote?  Thankfully, the bill was held by its sponsor, Senator Bart Davis.

Senate Bill 1446 would have requiring disclosure of the funding of any political written or broadcast material.  Anonymous political speech is well established American tradition protected by the First Amendment.  This was brought to the sponsor’s attention and he withdrew the bill.

CRIME

Let’s get tough on crime!  House Bill 621 would have made it a felony to drive with a blood alcohol content of .20 or more, even for a first offense.  The bills sponsor, Representative Gary Young, stated that this would help drunk drivers get the treatment they need.  The ACLU opposed this bill as excessively punitive and contrary to the goal of rehabilitation.  Treatment can be obtained without the burden of a felony conviction.   This bill was opposed by a variety of groups, including the Sheriff’s Association, and was held in the House Judiciary and Rules Committee.

Senate Bill 1448 sought to create the nation’s first drug pusher registry.  The ACLU opposed this as ill conceived.  Sex offender registries are based on the premise that sex offenders cannot be rehabilitated and the public must be given information to protect itself.  However, those who violate drug laws are often the best candidates for rehabilitation and the least likely to go out into the community to lure innocent citizens into consensual, and some believe victimless, crimes involving the distribution or use of controlled substances.  This bill easily passed the Senate, but failed to get a hearing in the House Judiciary and Rules Committee.

Let’s create more crimes!  The Idaho Retailers Association proposed Senate Bill 1366 which would have made any third petty theft offense a felony, regardless of the value of the items taken.  Three lollipops and you’re out!  The ACLU opposed this as disproportionate.  The bill was held in the Senate Judiciary and Rules Committee.  Senate Bill 1455 sought to criminalize interference with commerce.  Modeled after a Utah law, this would have prohibited citizens from, among other things, introducing interfering sound waves, light rays or electronic signals into commercial buildings.  The ACLU opposed this as it would chill free speech and punish non-violent legitimate commercial protest.  Fortunately, the bill was held by its sponsor.  

Senate Bill 1332 creates a new felony offense of interference with agricultural research and provides for harsh punishment and excessive restitution.  This bill easily passed both houses.  The ACLU opposed this legislation as both overly broad and overly punative.  The bill does not precisely define what conduct is prohibited and requires the offender to pay restitution in double the amount of the loss.  This is not restitution, this is punishment.

Perhaps the strangest proposal came from Representative Bill Sali, who introduced House Bill 626 which would have allowed parents to get protection orders for their children - against other children!  The ACLU and a variety of other organizations opposed this as yet more unnecessary government intrusion into the lives of families.  Does the state have to parent children now, and monitor who their playmates are?  Isn’t this a parent’s responsibility?  Fortunately, this bill never got a hearing in the House Judiciary and Rules Committee.