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2003 Legislative report

The 2003 legislative session was the longest on record – a grueling 4 months.  All legislation, with one notable exception, was considered primarily in terms of fiscal impact.  If it cost too much, the legislature rejected it.  Taxing and spending issues consumed most of the legislature’s time and energy and left everyone at the statehouse, myself included, extremely frustrated and emotionally exhausted.  I am pleased to report that civil liberties survived the session more or less intact, with a couple exceptions.

DEATH PENALTY– A coalition of organizations began forming early in the session to support a death penalty moratorium in Idaho.  Representative David Bieter (D, Boise) sponsored House Bill 122, drafted by the ACLU and supported by many organizations.  House Bill 122 would have placed a two-year moratorium on executions while a high level bi-partisan commission reviewed the death penalty in Idaho.  The Idaho Coalition for a Moratorium quickly grew to include the ACLU, Catholic Diocese, Idaho Association of Criminal Defense Lawyers, Idaho Women’s Network, United Vision for Idaho, National Association of Social Workers, Amnesty International, Episcopal Diocese, Interfaith Alliance, Boiseans for Peace and Justice, Idahoans for Alternatives to the Death Penalty, Moratorium Campaign, Council on Reconciliation and Restorative and Transformative Justice and dozens of churches, parishes and religious leaders statewide.  

We gathered national assistance including Sister Helen Prejean (author of Dead Man Walking), Ray Krone (100^th innocent released nationally from death row), Marietta Jaeger Lane (founder of Murder Victims Families for Reconciliation), and Peter Neufeld (co-founder of the Innocence Project), who all personally wrote letters of support to the House Judiciary and Rules Committee for House Bill 122.  Idaho’s own Donald Paradis, who was exonerated after 14 years on death row, spoke at a press conference and wrote a personal letter in support of House Bill 122. 

On February 11th we held simultaneous press conferences in Moscow, Boise and Pocatello calling for a moratorium on Idaho’s death penalty.  Andy Parnes, an Idaho attorney well acquainted with the problems of the death penalty, and Don Paradis spoke in Boise.  University of Idaho Professors Liz Brandt and Eric Jensen, and Dennis Palmeri of Amnesty International spoke in Moscow.   Nancy Hendricks, Sister Helene Higgins and Father Bruce Henne spoke in Pocatello. 

Despite our best efforts and hundreds of letters written to legislators in support of House Bill 122, it was held in the House Judiciary and Rules Committee.  The Coalition will meet over the summer to develop effective strategies and we will try again next year. 

Early in the session, Senator Denton Darrington (R, Declo) introduced  Senate Bill 1001 designed to “fix” Idaho’s death penalty and bring it into line with the US Supreme Court’s recent Ring decision.  In Ring, the Court found that juries, not judges, must decide if a defendant should be executed.  The ACLU spoke in opposition to this legislation and encouraged the legislature to thoughtfully consider the costs and benefits of our death penalty system before rushing to fix it.   No comprehensive analysis of the death penalty has ever been done in Idaho.  We don’t know how much the death penalty costs, but it is probably in the millions of dollars.  And what do we have to show for these millions?  Two exonerations, only one execution (at the request of the condemned), and the certainty of eighteen cases of prolonged and costly litigation.  Hardly a successful program. 

The death penalty is escaping the cost benefit analysis to which every other program is put in tough economic times.  If the actual costs of capital punishment were known, the public would be in a position to judge the death penalty as they would any other program.  If a program is highly cost intensive, given to years of litigious expense, focused only on a few individuals, produces questionable results and often fails to deliver justice, then it should be replaced.  It’s just not worth fixing.  Unfortunately, common sense and logic rarely enter into death penalty debates at the statehouse.  According to Senator Darrington, “The death penalty reaffirms the value that society places upon life.”  Go figure.

Too many Idaho legislators continue to voice strong support for the death penalty and lament that Idaho executions are too few and far between.  For example, Senator Mel Richardson (R, Idaho Falls) asked State Appellate Public Defender Molly Husky, “What is Texas doing right that we’re doing wrong?”   She responded that Idaho is more concerned with justice than haste.

Although the ACLU and many others spoke in opposition to reinstating Idaho’s death penalty, Senate Bill 1001 moved quickly through the legislature and was signed by the Governor on February 13^th. 

The ACLU drafted legislation in the 2002 session which would have prohibited the execution of persons with mental retardation.  The bill was held in committee.  Over the summer, the US Supreme Court ruled in Atkins v. Virginia, that such executions violated the Eighth Amendment’s prohibition of cruel and unusual punishment.  Representative Debbie Fields (R, Boise) sponsored House Bill 177 this session which would bring Idaho into compliance with the Supreme Court’s decision.  While the ACLU continues to support legislation limiting the death penalty, we were disappointed that House Bill 177 did not specifically provide a way for inmates currently on death row to raise claims of mental retardation.  Despite our concerns, the bill passed easily.

Prolonged solitary confinement is considered by some to be torture.  Idaho law required death sentenced inmates to be held in solitary confinement and some of them have been on death row for over twenty years.  House Bill 218, drafted by Boise attorney Dennis Benjamin of our ACLU legislative committee and sponsored by Representative Wendy Jaquet (D, Ketchum) gives the director of the Department of Correction the discretion, based on inmate behavior, to house death sentenced inmates with the general maximum security population.  The Department of Correction supported the legislation as an inmate management tool with potential cost savings.  We believe this legislation will help reduce the inhumane conditions on Idaho’s death row.  It easily passed both houses and was signed by the Governor on April 14^th.

REPRODUCTIVE FREEDOM – The ever-present anti-choice forces at the Statehouse once again promoted legislation attacking basic reproductive freedoms.  We are pleased to report that they were unsuccessful this year! 

House  Bill 202 would have extended Children’s Health Insurance (CHIPS) benefits to embryos and fetuses.   While promoted by the sponsor Representative Bill Sali (R, Kuna) as providing pre-natal care to the poor, this bill was really a thinly veiled effort to promote fetal rights as a part of the ongoing abortion debate.  House Bill 202’s only proponents were religious leaders and anti-choice activists.  It was opposed by many health care providers and medical organizations.  By the time HB202 hit the House floor, it no longer provided any delivery services, paid only for pre-natal vitamins, and covered little that was recommended by medical groups.  The bill was defeated 33/37. 

Meanwhile, Representative Margaret Henbest (D, Boise) sponsored House Bill 201 which would have provided CHIPS benefits to pregnant women.  This proposal was endorsed by the ACLU, women’s organizations, and many in the medical community, including the March of Dimes.  Despite the supportive and knowledgeable testimony of numerous medical professionals, the bill was held in the House Health and Welfare Committee.

Late in the session an attempt was made to strip Planned Parenthood of Idaho of its federal Title X funding.  Anti-choice lawmakers Representative Bill Sali and Senator Skip Brandt (R, Kooskia) attempted to quietly slip intent language into the Health and Welfare budget that would have provided Title X family planning funds only to state district health departments.  Representative Bill Sali publicly stated that Planned Parenthood should receive no funds because the services it provides are duplicative of those provided by the state’s public health districts.  Does anyone really believe that there’s too much family planning going on in Idaho?  Is there really too much cervical and breast cancer screening going on in Idaho?  The Senate Health and Welfare Committee saw the obvious absurdity of the de-funding proposal and voted instead to specifically include Planned Parenthood as a Title X recipient.  But, the House Health and Welfare Committee voted 6/4 to de-fund Planned Parenthood.  The proposed intent language was revised, withdrawn and reinserted several times before the Joint Finance and Appropriations Committee (JFAC)) reached the Health and Welfare budget on the last day of the session where the de-funding proposal failed on a 10-10 vote.  We anticipate the same bad idea to re-emerge in the 2004 session as anti-choice crusaders have publicly stated their desire to end the entire Title X program.

Early in the session, Representative Sali, Chair of the House Health and Welfare Committee, testified to JFAC that he believed Medicaid costs could be cut by requiring delivery by midwives and denying payment for all pain medication related to delivery (including epiderals).  It is painful to hear such callous indifference to the very real health care needs of low-income women.

House Bill 213, drafted by allies in the disability community, protects the reproductive rights of adults unable to make choices for themselves because of cognitive disability.  The bill requires those making decisions regarding the involuntary sterilization of disabled adults to follow a thorough and protective legal process.  The bill faced no opposition and passed easily.

Before the session started, the Department of Health and Welfare announced that it would seek to codify part of the court’s decision in last year’s Medicaid abortion challenge.  One of the court’s rulings was that Idaho’s law requiring two physicians certify that maternal life was in danger was unconstitutional, finding that the certification of only one doctor is sufficient.  Health and Welfare considered changing the law to reflect the court’s ruling.  We phoned and submitted a legal memorandum to Health and Welfare discouraging them from pursuing such legislation as it would only cause controversy and result in yet more litigation by the ACLU that we were certain to win.  Our argument was convincing and the bill was withdrawn before introduction.   

FREE SPEECH  The rights of Americans to speak freely has never been more important and, as one might expect, never more threatened.  This year the legislature, to their credit, took no action to limit political speech or protest surrounding the war in Iraq or the ongoing war on terrorism. 

Instead they declared war on the free speech rights of public employee unions!  House Bill 329, the “Voluntary Contributions Act,” limits what unions can do with their membership dues.  (Remember, Idaho is a “right to work” state where union membership and payment of dues is completely voluntary.)  The bill prohibits unions from using their general dues for political advocacy and prohibits payroll deductions for political activity.  The bill was sponsored by the majority leadership of the house and senate and supported by the Governor.  Over twenty groups and individuals testified in opposition to the bill, including labor unions, non-profit organizations and the ACLU.  Only two people spoke in favor of the bill, a national lobbyist for Americans for Tax Reform and a lobbyist from the Governor’s office.  The bill was rushed through the entire legislative process in an incredible ten days!

Campaign finance reform was the topic of much talk but little meaningful action this session.  The ACLU believes that the election of public officials is an essential aspect of a free society and the integrity of the electoral process is a principal civil liberties concern.  Election campaign reforms must be achieved by a means that do not sacrifice other civil liberties values.  While we support the reporting and disclosure of significant campaign contributions, limitations on contributions made by individuals or organizations for the purpose of advocating causes or candidates in the public forum impinge directly of freedom of speech and association. 

Several bills were introduced to reform Idaho judicial elections.  Most were unsuccessful.  Senate Bill 1009 requires prompt reporting of third party expenditures in judicial elections.  The ACLU was concerned that this would prohibit anonymous political speech – a constitutionally protected and long established American tradition.  Despite our concerns, the bill passed easily.

Senate Bill 1172 would have prohibited lobbyists and their employers from contributing to legislative campaigns during the legislative session.  We opposed this legislation as unnecessary (bribes are already illegal) and unduly restrictive of protected speech.  The bill, supported by many, was sent to the amending orders where it quietly died.   Senate Bill 1177 would have allowed public officials to accept expenses to attend “charitable, cultural, instructional or educational events” in return for legislative action.  We opposed this legislation as we firmly believe that no quid pro quo exchanges should ever be permitted! The bill passed out of the Senate State Affairs Committee, but was held by its sponsor before a floor vote. 

Representative Peter Nielsen (R, Mountain Home) proposed House Bill 288 which would have allowed school board trustees to remove objectionable materials from school libraries.  The ACLU, librarians and educators opposed this legislative attempt at censorship.  The bill did not get a hearing. 

DISCRIMINATION – Fighting discrimination in Idaho is a difficult task indeed.  For every step the legislature takes forward, it seems to take two steps back.   This year saw victories for gays and the disabled, but stinging defeats for immigrants and women.

First the good news.  A coalition of disability advocacy groups successfully sponsored House Bill 160 and House Bill 167 which remove discriminatory language in Idaho’s child protection statutes.  These bills level the playing field for parents with disabilities by requiring the courts to consider adaptive equipment and services for disabled parents.  This legislation has been over five years in the making and finally got passed.  The compromise bill was not all that we had hoped for, but a big step in the right direction.

Senate Bill 1114, sponsored  by Senators Curt McKenzie (R, Nampa) and Brent Hill (R, Rexburg) would have prohibited recognition by the State of Idaho of “marriage substitutes,” including civil unions and domestic partnerships.  This legislation, promoted as a family protection bill by the religious right and ultra-conservatives, was not only unnecessary, it was offensive.   It was promoted as a family protection bill by religious fundamentalists and ultra-conservatives.  The ACLU worked with other groups, such as Your Family Friends and Neighbors (YFFN) and the Idaho chapter of Parents and Friends of Lesbians and Gays (PFLAG) and the Idaho Women’s Network (IWN) to inform Idahoans who support equal rights about the dangers of SB1114.  ACLU staff urged Senator Sheila Sorensen, Chair of the Senate State Affairs Committee, to hold the bill without a hearing, both in personal visits and in a written legal analysis of the bill.  Furthermore, ACLU staff and a local PFLAG representative met with the bill’s chief sponsor and three others:  the Deputy Attorney General who drafted SB1114, Senator Sorensen, and Julie Lynde of the Cornerstone Institute (a leading advocate of SB1114), to convince Senator Sorensen that the legislation was fundamentally flawed and could even cause Idaho hospitals to refuse to permit visitation of a dying adult by his or her partner.  Senator Sorensen held the bill without a hearing.

Now the bad news.  A proposal to allow undocumented immigrants to get drivers’ licenses failed this year.  Senate Bill 1044, sponsored by Senator Cecil Ingram (R, Boise) would have allowed immigrants to use their taxpayer identification number rather than a social security number on their driver’s license applications.  Only about half of the fifty states, including Idaho, require that applicants for driver’s licenses be lawfully present in the country.  Many groups, including the ACLU, supported Senate Bill 1044 because it allows undocumented immigrants legal driving privileges.   Idaho’s rural landscape makes it nearly impossible to function without driving and current Idaho law needlessly criminalizes necessary behavior.   Following public hearing on the bill, many ugly statements were made in the press by citizens voicing their contempt for undocumented immigrants.   The bill was eventually held in committee.  

Breasts doing what nature intended is taboo in Idaho.  While current law does not prohibit public breastfeeding, it does not protect women from harassment by business proprietors.  House Bill 235, sponsored by Representative Bonnie Douglas (D, Coeur d’Alene) would have protected a woman’s right to breastfeed in a public place and ended the discriminatory treatment long endured by nursing mothers.  The comments made by legislators at the bill’s print hearing only reinforced the notion that women’s breasts are exclusively sexual.  Think beer commercial.  Everybody wants to see female breasts, until a baby needs them.  Representative Peter Nielsen stated, “I'm the father of eight children. My sweetheart nursed every one of those kids. She's a modest lady,” He implied that this bill could change that sense of modesty and said, “it's going to be, whip it out and do it anywhere.”  Representative Charles Eberle (R, Post Falls) followed up with “You talk about the right of the woman - if I'm in a restaurant, having a nice meal, do I have any right (not) — to get the woman next door to me taking off her blouse and starting to breast-feed?”  A hungry baby’s need for nutritious mother’s milk is apparently of little importance compared to the dining “rights” of some legislators.

DUE PROCESS AND ACCESS TO COURTS – A solution in search of a problem drove this year’s successful, but entirely unnecessary, tort reform legislation.   House Bill 92 limits non-economic damage awards juries can make in civil cases.  The ACLU opposed this legislation as it limits the right to a full and fair trial by jury.  “Insurance rates will go down,” according to businesses and insurers who backed the bill, “if we rein in runaway jury verdicts.”  Despite overwhelming testimony that Idaho juries seldom award big damages and that tort reform in other states has not resulted in lower insurance rates, the bill easily moved through both houses and was signed by the Governor on March 26^th.   It is strange that while the US Supreme Court has ruled that only juries are competent to decide who gets sentenced to death, the Idaho legislature has determined that the same juries are incompetent to decide how much compensation to award an injured plaintiff.   Go figure. 

PRIVACY – The ACLU supported House Bill 84, sponsored by the Attorney General and veteran’s groups, which exempts military discharge papers from public disclosure.  Discharge papers are often recorded at a county courthouse and contain personal information, such as social security numbers.  While the ACLU advocates for open government and greater access to public records, we felt that the privacy interests of veterans deserved stronger protection.  The public gains no greater understanding of government operations by accessing personal information about individuals.  The bill passed easily.

The ACLU opposed House Bill 48, backed by the Idaho State Police, which would have required convicted burglars to provide DNA samples to law enforcement.  Initially, these DNA storehouses were created to house information about convicted sex offenders exclusively.  The argument was that sex offenders were especially prone to recidivism, typically left DNA evidence at the crime scene, and hence, were important to identify.  This year, the argument put forth by the State Police was that burglars might later commit violent crimes.  We felt that the bill cast too wide a net.  In Idaho, burglary includes shoplifting a can of soda or stealing a CD from a glovebox.  Where fingerprints can be used for identification purposes only, DNA can provide insight into a breathtaking wealth of singularly private information -- information about a person's ethnicity, family relationships, family history and the likelihood of getting some 4,000 genetic conditions and diseases.  This information belongs to each individual, not the government.  Further, geneticists are constantly increasing the database of information that can be gleaned from DNA -- some even claim that there are genetic markers for "criminal tendencies," sexual orientation, substance abuse, etc.  The possibilities -- and thus the dangers -- are endless.  The bill was held in the House Judiciary and Rules Committee. 

As part of President Bush’s “No Child Left Behind” legislation, schools are now required to provide students names, addresses and phone numbers to military recruiters.  Idaho lawmakers revised our public records act to allow for the release of student information, but not easily.  The House failed the first attempt, House Bill 272, expressing concerns about student privacy and aggressive recruitment practices.  The second attempt, Senate Bill 1175, passed easily when lawmakers were informed that schools could lose all federal funding unless the made student information available to our armed services.  The ACLU does not oppose military recruitment, but we do believe that student’s privacy should be respected.