BOISE — At the request of legislative leaders, the Idaho Supreme Court has agreed to allow the Legislature to intervene as a party in two lawsuits challenging a restrictive new voter initiative law, which means the taxpayers will pay for two separate legal teams to defend the same law in each case.
The state is represented by the Idaho Attorney General’s office, which is defending the newly signed law, SB 1110. Now, the Legislature also is represented by its private attorneys, led by William G. Myers III of the firm Holland & Hart.
“I think it’s important to realize that the Legislature is the body that passed the legislation, and therefore it has the greatest interest in it,” said Senate President Pro-Tem Chuck Winder, R-Boise. He said he anticipates the Attorney General’s office will focus on different points of law in its defense of SB 1110. “We felt that it was important that we have outside counsel that represented the Legislature, and you’ll get a broader defense of the existing legislation.”
State lawmakers this year approved an additional $4 million in taxpayer funding for the Legislative Legal Defense Fund, which is split between the House and Senate and in which the House portion this year had dropped to a zero balance. Myers has been representing the Legislature in numerous matters; according to public records obtained by the Idaho Press, the Legislature has been paying him an hourly rate of $470.
The Legislative Legal Defense Fund is separate from the state’s Constitutional Defense Fund, which has spent millions in recent years to pay the other sides’ attorney fees in major lawsuits that the state has lost. That fund is controlled by both the legislative and executive branches of state government.
Reclaim Idaho, the citizens group that successfully pushed for the Medicaid expansion initiative in 2018 and one of the groups suing over the new initiative law — which it contends goes so far in placing conditions on the right to initiative and referendum that it eliminates the constitutionally guaranteed right — opposed the Legislature’s motion to intervene as a party in its lawsuit.
“The Attorney General is vigorously representing the respondents and defending the constitutionality of the statutes challenged here,” wrote attorney Deborah Ferguson in arguments filed with the Idaho Supreme Court. “As a practical matter, the Legislature may be better served by having the Attorney General defend the statute, since the Legislature appears to have a conflict by defending a statute that seriously compromises a constitutional right of the people that it is charged with safeguarding under Article III, Section 1 of the Idaho Constitution.”
House Minority Leader Ilana Rubel, D-Boise, an attorney, said, “It’s very frustrating that we’re already seeing the Legislature tapping into taxpayer dollars. … So the taxpayers will be paying twice: The Attorney General, then top dollar for a private law firm to litigate the same position.”
Winder defended the move. When asked if it’s worth the price, he said, “I think it is, as long as you win.” He said Myers is highly qualified. “I think he’s well worth the money we’ve paid him in the past, too. And I think that’s a discounted rate, that’s below his normal rate.”
Myers, a partner at Holland & Hart, is the former Solicitor for the U.S. Department of Interior. He also has worked for the U.S. Department of Energy and Department of Justice, and has decades of legal experience.
“He’s got a great knowledge of both federal law and state law and has done a great job defending the Legislature,” Winder said, noting that Myers also has represented the state of Utah on sage grouse issues. “He’s well respected in lots of areas and comes from a firm that has a variety of professionals that provide different expertise in different areas of government and different areas of the law.”
Winder said the $4 million infusion this year into the Legislative Legal Defense Fund wasn’t aimed specifically at the initiatives case. “It’s just anticipation that there are ongoing cases that were underway, and this is one of ’em,” he said.
SB 1110 requires signatures from 6% of the registered voters in each of Idaho’s 35 legislative districts to qualify an initiative or referendum for the Idaho ballot; current law requires 6% from 18 of the 35 districts. Reclaim Idaho contends the change gives residents of a single legislative district veto power to prevent any measure from qualifying for the Idaho ballot, eliminating the constitutional right for everyone else.
Reclaim Idaho was joined by the Committee to Protect and Defend the Idaho Constitution, a panel led by two former Idaho attorneys general, in suing to overturn SB 1110 as unconstitutional. A separate lawsuit challenging the same law also was filed by Michael Gilmore, a retired former deputy Idaho attorney general, who filed his lawsuit as an individual citizen.
In documents defending SB 1110 already filed in the Gilmore case, Myers argues that the bill is in line with the Legislature’s authority under the Idaho Constitution to determine the “conditions” and “manner” in which Idahoans can exercise their constitutional right to the initiative, through which voters themselves propose laws independent of the Legislature; and the referendum, through which voters can repeal a law the Legislature has passed.
“If the people question whether their elected Legislature imposed too many or too few conditions, they can resolve that political question by electing a new Legislature,” Myers wrote.
During a House committee hearing this year on an unsuccessful legislative proposal from Nampa GOP Reps. John Vander Woude and Bruce Skaug to allow any state agency to hire outside legal counsel at state expense rather than utilize the services of the state Attorney General, testimony showed the Attorney General’s hourly rate for legal representation of state agencies through the statewide cost-allocation system is $57.88. If the office contracts with outside attorneys, it’s $88; and if the state Office of Risk Management hires attorneys, it’s $150.
HB 101 passed the House on Feb. 24, but died without a hearing in a Senate committee, largely over concerns about needlessly high costs to the state.