Archives for April 2010

From The Spokesman-Review

BOISE – Idaho has much at stake in Washington’s big U.S. Supreme Court case over whether referendum petition signatures should be public or not.

“Our initiative and referendum statute is very similar to Washington’s and Oregon’s,” said Idaho Secretary of State Ben Ysursa, at whose request Idaho joined 22 other states in filing “friend of the court” briefs backing Washington’s position – that the signatures remain public.

“I can’t think of something any more public, that should be public, than somebody signing an initiative petition that is basically using the legislative power reserved to the people,” Ysursa said. “It’s part of an open and transparent process, just like (legislators) voting on a piece of legislation would be. That was our basic reason to join in, and the other states that have initiative and referendum seem to agree with us.”

The 23 states, which also include Oregon, Utah, Arizona and Colorado and are being led by Ohio, are among a long list of parties who’ve filed supporting briefs on one side or the other in the case, from the American Conservative Union to the Reporters Committee for Freedom of the Press to the National Conference of State Legislatures. The high court will hear arguments in the case on Wednesday.

The group “Protect Marriage Washington,” which sued to prevent the release of the names of petition-signers on a referendum that sought unsuccessfully to overturn a same-sex domestic partnership law, contends state public records laws that make such information public are unconstitutional, because they’d subject those signers to harassment for exercising their right to free speech.

The states, in their brief, say signing petitions for an initiative or referendum is not political speech, but legislative action. “The people’s exercise of their sovereign referendum power is, by its very nature, a public act,” the brief states.

They also note the significance of state public records laws. “Every state has recognized its compelling interest in open government – both as a check on government power, and as a means of informing the public – by enacting public records acts and open meetings laws,” the brief says.

It also contends that states won’t be able to guard against fraud or protect the integrity of their petition processes if the names of petition-signers are made secret. “Washington’s interest necessitates giving the very citizens who are exercising their sovereign legislative authority through the referendum process an opportunity to verify the integrity of that process,” the brief says.

The rights of initiative and referendum were placed in Idaho’s state constitution in 1912, in the same section that says the state House and Senate can pass laws.

Ysursa, who himself is an attorney, said he views the states’ brief as “pretty solid,” and he’s hoping the state of Washington prevails, as it did in the 9th Circuit U.S. Court of Appeals. Said Ysursa, “I think it’s a step backwards for openness in government if that case is not upheld.”

From The Spokesman-Review

From the Lewiston Tribune

By William L. Spence
of the Tribune

It wasn’t Deep Throat and the story didn’t topple a presidency, but an anonymous phone call to a Moscow reporter did help establish the legal precedent that protects Idaho reporters today.

Two University of Idaho journalism students, Christopher Murray and Kyle Howerton, recently completed a documentary film marking the 25th anniversary of the case, known as In re Wright.
The film was shown to about 120 people a university symposium Monday, after which some of the main participants discussed the state of reporter privilege in the Internet Age.

The case began in the fall of 1982, when reporter Jim Wright of the Moscow Daily Idahonian wrote a story about a drug bust near Deary. The story was based largely on a law enforcement press release, which indicated that about 100 marijuana plants worth $50,000 to $60,000 had been seized.

The next day he received an anonymous call from someone disputing those figures. Through subsequent meetings, Wright determined the caller had been involved in growing the marijuana. Using information the caller provided, he was able to establish that only about a dozen plants and two pounds of marijuana had been seized.

Wright was later subpoenaed to testify in the case. When he refused to reveal his source, he was held in contempt and the paper was fined $500 per day. Publisher A.L. (Butch) Alford — now president of TPC Holdings Inc., which owns the Lewiston Tribune and Moscow-Pullman Daily News — appealed the case to the Idaho Supreme Court.

This was the second case Alford had taken to the Supreme Court. Just a few years earlier, in Caldero v. Tribune Publishing Co., the court had ruled that “no privilege against disclosure of confidential sources … exists in an absolute or qualified version.”

Charles (Chuck) Brown, the Lewiston attorney who argued both cases before the court, said protecting the identity of confidential sources is something newspapers have fought for since Colonial times. Every year there are stories about the hidden actions and wilful misrepresentations of government agencies that could only be written with help from unnamed sources. Protecting the identities of these individuals is crucial to a free press.

A handful of states recognize this by conferring absolute privilege on reporters, meaning they cannot be compelled to reveal their sources. Most states, however, have qualified privilege, in which the public’s right to know is balanced against other considerations.

In the Wright case, the justices explicitly refused to follow the Caldero precedent. Instead, they set their own standard. They said Idaho reporters have a qualified privilege and can be required to divulge their sources if three conditions are met: There must be probable cause indicating the reporter has information relevant to the case, it must be demonstrated that the information can’t be obtained by other means, and the information must be of a significant and compelling nature.

Wright, who has been a reporter and editor for 30 years attended Monday’s symposium, together with Alford, Brown, the two film-makers and ACLU attorney Ben Wizner.

After the Supreme Court issued its ruling, he said it remanded the case back to the lower court to determine if the three criteria were met “But funny enough, after two years in the legal system, nobody cared any more. No one ever called for a hearing to decide (if the criteria were met), and the dope in the evidence locker had rotted away.”

Reporter privilege continues to be a challenge in the Internet Age, with questions about who should qualify and what type of information is protected. Congress is also debating the merits of a federal shield law, which would address the question of privilege for those who cover the federal government.

As Brown indicated at the close of the documentary, this is an issue that deals with the protection of society, as well as of journalists. After all, he said, the genesis of shield laws “was free speech, not just free press.”

From the Lewiston Tribune

From the Spokesman Review

The state of Idaho will pay $275,000 to settle a dispute over the seizure of 25 boat slips and docks at the Sandpoint Marina during a U.S. Highway 95 construction project.

The agreement ends an 18-month skirmish between Ralph Sletager, the marina’s owner, and the Idaho Transportation Department. The parties agreed to drop lawsuits against each other and pay their own attorneys fees. Sletager can reinstall the docks when the $98 million Sand Creek Byway project is finished, the settlement says.

The dispute arose over right-of-way for the byway, which reroutes Highway 95 away from Sandpoint’s historic downtown.

The Idaho Transportation Department acquired the right-of-way for the byway in the late 1950s, state officials said in court documents. The Sandpoint Marina’s “C dock” unit illegally encroached on the state’s right-of-way, blocking byway construction, the documents said.

But Sletager, in other court documents, said no state right-of-way existed. He purchased the marina in 1995.

State officials said they talked with Sletager for months about the need to move the docks. According to court documents, Sletager sent letters back saying: “I don’t plan to move my docks and if anyone from ITD or your contractors trespasses I will have them arrested.”

The issue blew up in November 2008. Sletager, the marina’s security guards and construction workers confronted each other at the marina after contractor Parsons RCI asked Avista Utilities to turn off electrical service to the marina, according to news accounts. Idaho State Police troopers and Sandpoint police were called to the standoff, which ended peacefully.

A few days later, the state sought court permission to remove the docks. Delaying the construction of coffer dams in Sand Creek, which had to be done during low water, would have added $5 million to the byway’s cost, transportation officials said in court documents.

The docks were seized and put into storage.

Sletager was not available for comment Tuesday afternoon. But in court documents, he said the marina’s C dock unit had existed since the 1950s. State promotional materials for the Sand Creek Byway showed “the defendant’s existing East C docks, in their present location and undisturbed by the byway,” according to court documents.

Sletager is responsible for the cost of moving the docks back to Sand Creek. The byway construction should wrap up in 2012, said Barbara Babic, a transportation department spokeswoman.

Last month, the transportation department issued a news release saying it had reached a settlement with Sletager but had agreed not to release the payment amount. The Spokesman-Review obtained a copy of the settlement through a public records request.

From the Spokesman Review