Because Freedom Can't Protect Itself

2004 Legislative Report

Following last year’s brutal marathon, many (myself included) believed that the 2004 Idaho Legislative session would be short and simple.  Get in, get the budget done, and go home.  That’s not quite what happened.  Some from the far right of the political spectrum exploited local and national issues in an attempt to further their social agenda in this election year.  I am pleased to report that they were not successful!

Discrimination - Representative Henry Kulczyk (R, Eagle) proposed to amend the Idaho Constitution to state:   “Only marriage between one man and one woman at one time shall be recognized as valid in this state. No other relationship shall be recognized as a marriage or its legal equivalent by the state of Idaho or its political subdivisions, regardless of whether such relationship is recognized by the laws of any jurisdiction outside of this state.”

As a proposed amendment to the Idaho Constitution, House Joint Memorial 9 would require a two-thirds majority vote in the House and Senate.  The proposal would then be placed on the November ballot, where it could be approved by a simple majority.

The ACLU opposed this amendment as a blatant attempt to deny gays and lesbians any legal protection of their committed relationships.  It singles out gays and lesbians for discriminatory treatment and denies them equal protections of the laws.

The House voted 53/17 in support of the amendment.  Senator Sheila Sorensen (R, Boise), Chair of the Senate State Affairs Committee, courageously decided to hold the bill without a hearing.  She stated that the proposal was divisive, driven by fear, unnecessary and harmful to Idaho’s already tarnished image.  

In an unusual parliamentary maneuver, Senate Pro Tem Robert Geddes (R, Soda Springs) attempted to by-pass Senator Sorensen and pull the bill into committee.  His motion failed on a 5/4 vote.  Senators Joe Stegner (R, Lewiston), Brad Little (R, Emmett), Marti Calabretta (D, Osburn), Clint Stennett (D, Ketchum) joined Senator Sorensen in opposing bringing HJR9 to the committee for hearing.  Senators Denton Darrington (R, Declo), Mel Richardson (R, Idaho Falls) and Bart Davis (R, Idaho Falls) supported Senator Geddes’ motion. 

Not willing to accept defeat, Senator Gerry Sweet (R, Meridian) made a move on March 5^th to pull the bill directly to the Senate floor for a vote.  The Senate voted 20/13 to keep the bill held in committee.  Yet another attempt was made later in the session and the Senate concluded its business on March 20 without considering the bill. 

The ACLU was instrumental in defeating the proposal.  We met several times with Senator Sorensen and provided information and support to help guide her strategy. 

Religious Freedom - Senator Gerry Sweet (R, Meridian) stated in December that the laws of “Almighty God … the great legislator of the universe” should recognized in the form of a Ten Commandments monument in the Capitol rotunda and that he would sponsor legislation requiring just such a monument.  By the time the Senate Bill 1376 was introduced, it had been changed to an “American Heritage Display” which would have placed the Ten Commandments in a larger display including such documents as the Magna Carta, the Mayflower Compact and the Declaration of Independence.  

The ACLU opposed the bill as a rather obvious attempt to promote religious belief on public property.  A majority of Senators on the State Affairs Committee agreed, rejecting the proposal 5/4. 

Meanwhile, Representative Bill Sali (R, Kuna) introduced House Bill 652 which was clearly designed to protect the Ten Commandments monument in Boise’s Julia Davis Park.  His bill would assume that any statue or monument twenty-five years or older should be preserved as historically significant and could not be removed without the approval of the Idaho Historical Society.  The bill was assigned to the House State Affairs Committee, where it never received a hearing. 

Reproductive Freedom  - In what has become the annual attack on abortion rights, anti-choice advocates proposed yet another way to make it more difficult for Idaho women to obtain abortions.  The so-called “Women’s Right to Know Act, ” Senate Bill 1321, promoted biased counseling and created additional hurdles for women to overcome in exercising their reproductive rights.  This legislation did nothing to protect or improve the quality of care women receive from their physicians.  It was instead designed to discourage women from obtaining abortions and unnecessarily postpone the procedure even though a woman has made a deliberate, mature and fully informed choice. 

The bill would have made women wait twenty-four hours between the time they review a state produced booklet “informing” them of the medical and psychological risks of abortion and the time they could undergo the procedure.  

Perhaps the most troubling provision of the bill allowed an immediate family member injured by the abortion to sue a physician who violated any section of the law.  The ACLU believed that this section did not protect a woman’s privacy as her most personal medical decision could become the subject of civil litigation – even in situations where the woman herself was perfectly content with her decision.

The proposed legislation exposed a growing rift in the anti-choice community.  Idaho Chooses Life and other extreme anti-choice groups opposed the bill, stating that it didn’t go far enough and advocated including claims, unsupported by medical research, that there is a link between abortion and breast cancer and that abortion leads to “post abortion stress syndrome.” Three members of the House Health and Welfare Committee recognized the bill for what it was – an obvious attempt to discourage abortion – and voted to hold the bill.  Meanwhile, the anti-choice opposition persuaded three anti-choice members of the committee that the bill’s requirement that the information be “medically accurate, scientific, objective and non-judgmental” would exclude their wild claims that women who have abortions risk sterility, cancer, and are more likely to become victims of homicide.   The bill was held in the House Health and Welfare Committee. 

Just how hostile is the Idaho Legislature to reproductive freedom?  They wouldn’t even consider state funding for family planning!  Skip Brandt (R, Kooskia) Chair of the Senate Health and Welfare Committee refused to schedule a hearing on Senate Bill 1319, sponsored by Representative Margaret Henbest (D, Boise, Representative Wendy Jaquet (D, Ketchum), Senator Sheila Sorensen (R, Boise) and Senator Shawn Keough (R, Sandpoint), that would have extended Medicaid benefits to include family planning.  Brandt stated that the proposal was "too controversial."  The bill would have made low income women eligible to receive contraceptives free of charge.  The federal government would have matched every dime Idaho spent on family planning with ninety cents.  The ACLU supported this proposal as it would have provided necessary health care services to low income women, promoted family planning and reduced unintended pregnancies.   How controversial is that? 

Criminal Justice  -  Representative Dick Harwood (R, St. Maries) introduced legislation that would expand mandatory minimum drug sentences to offenses committed near day care facilities.  Current law prohibits distribution or trafficking near schools.  House Bill 641 would have included day care centers, including those with six or fewer children.  While the legislation might have been well intentioned, we were concerned that since most family day care centers are unlikely to appear outwardly any different than any other single family dwelling, a defendant would not be put on notice of its existence for purposes of the fixed minimum sentence and non-expungement provisions of the bill.  We questioned how this legislation would deter a defendant from manufacturing, or delivering drugs close to a day care, when the defendant may not even know it exists.  Deterrence, to be effective, requires knowledge.  The ACLU was the only group that spoke in opposition to the bill.  The bill passed the House, but was held in the Senate Judiciary and Rules Committee.  

The ACLU opposed House Bill 520, backed by the Idaho State Police, which requires 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 feel 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 made it through the House and was amended in the Senate to exclude convictions for retail petty theft burglary.  The amendment was proposed by Dennis Benjamin of the ACLU’s legislative committee.  While the ACLU generally opposes expanded databases, we supported the amendment.  The bill was passed as amended.     

Representative Donna Boe (D, Pocatello) sponsored House Concurrent Resolution 42 which would have created an interim task force to study criminal sentencing laws and practices in Idaho.  The ACLU drafted the resolution with help from Supreme Court and Legislative Services staff.  We supported the resolution as a much needed step in the right direction to begin considering criminal justice reform.  The tough on crime attitude of the last couple decades is proving to be ineffective at reducing crime and rehabilitating offenders.  We must consider other options.  The task force would have reviewed current sentencing laws to ensure that they are fair and consistent, as well as look at the resources dedicated to rehabilitative programs -- and their effectiveness -- in our jails and prisons.  The bill passed the House, but never received a hearing in the Senate. 

The ACLU alone opposed House Bill 667, sponsored by Rep. Wendy Jaquet (D, Ketchum) which would have made it a crime to threaten violence on school grounds.  Children often make empty threats with no intention of carrying them out.  This bill made no distinction between real, and empty, threats.   The bill passed the House, but was held in the Senate Judiciary and Rules Committee. 

The ACLU alone opposed Senate Bill 1333 which would have made it a misdemeanor offense for a person to refuse to submit to a search at an airport.  Upon entering the sterile area of an airport, passengers consent to a routine search of their person and possessions.  However, it should not be a crime to exercise a constitutional right and withdraw consent to an unreasonable search.  Should it be a crime to refuse to submit to a strip search?  The bill passed the Senate, but was withdrawn by its sponsors following hearing in the House Judiciary and Rules Committee.  The sponsors offered to work with the ACLU over the summer to draft an acceptable alternative.    

Privacy  -  Senator Denton Darrington (R, Declo) introduced legislation that would criminalize tattooing of minors.  The bill prohibits the tattooing or body piercing (earlobes excluded) of any person under the age of fourteen -- even with their parents permission.  Minors between fifteen and eighteen are allowed piercing or tattooing with parental consent.  The ACLU opposed the bill as it takes fundamental decision making away from families and gives the State of Idaho the final authority to decide what it best.  Despite our objections, the bill passed the legislature and was signed by the governor. 

The ACLU opposed Senate Bill 1302 which allows “de facto custodians” the same standing as parents in child guardianship proceedings.  A “de facto custodian” is anyone who has been the primary caregiver and financial supporter of a minor for any six to twelve month period.  While well intentioned and designed to make it easier for grandparents to become guardians, we believe that the definition is too broad and could allow former step-parents or live in boyfriends or girlfriends to challenge a parent’s right to custody and control of their children.  The ACLU stood alone in opposing the bill, which passed the House and Senate and was signed by the governor.  

Free Speech -  The ACLU supported House Bill 730, sponsored by Representative Wendy Jaquet (D, Ketchum), which sought to remove restrictions on who could testify at public hearings regarding sitings of confined animal feeding operations (CAFO) – usually dairy farms.  Current law allows only those whose primary residence is within one mile of the CAFO to testify at public hearings.  We believe this restriction is unreasonable.  It is unlikely that a CAFO can keep their odors and waste confined to a one mile radius.  It is bad public policy to limit the witnesses in a manner as to exclude a substantial number of people who will be impacted by the land use.  Democracy should encourage public participation, not limit it by arbitrarily determining who can speak and who cannot.   The bill was held in the House Agricultural Affairs Committee.  

Senate Bill 1235, sponsored by Senator Mike Burkett (D, Boise) and drafted by the ACLU, sought to redefine terrorism, and protect those who violate the law in an act of political protest.  Following 9/11, Idaho updated its terrorism statutes to include a definition of terrorism which gave us great concern.  A person could be prosecuted as a terrorist who, for example, lies alone in the road blocking a shipment of nuclear waste.  We believe this definition is too broad and could chill political protest.  In this age, terrorism is a serious threat to our nation.  Terrorism is a serious accusation to make and a serious crime to commit.  Our laws should reflect the serious nature of terrorism and reserve it to only those actions that are truly deserving.   The Senate Judiciary and Rules Committee held the bill in committee. 

Another bill which would have chilled First Amendment speech was proposed by Representatives Dick Harwood (R, St. Maries) and Bill Sali (R, Kuna).  House Bill 644 would have created a civil cause of action against anyone who testified falsely before any fact finding body.  Perjury is already a crime.  The ACLU, and many others, opposed this legislation as unnecessary and potentially chilling to free speech.  We believe that the bill would have created a mechanism for those displeased with the decision of a court or governmental body to harass their opponents with civil litigation.

The ACLU was instrumental in amending House Bill 500 which clarified the process for appeals of election recounts.  The original proposal required the candidate appealing, but losing, the recount to pay the attorney’s fees of everyone participating in the appeal.  We believed that this would discourage meritorious appeals.  The Senate State Affairs Committee agreed and adopted our amendment, drafted by Alan Herzfeld.