Lawmakers respond to McGeachin Facebook post

By Seth Ogilvie, Idaho Reports 

Idaho Lieutenant Governor Janice McGeachin appeared in a photo on social media that has shocked several members of the Senate and prompted accusations of racism from Idahoans across the state. 

In the photo, McGeachin is making a heart symbol with her hand as two men make an OK hand gesture.

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Source: Facebook.

“I don’t feel safe,” said Sen. Maryanne Jordan in a Friday morning interview with Idaho Reports. “It’s a white power sign.”

In a statement released Friday McGeachin said: “I wholeheartedly reject bigotry and discrimination in all of it’s forms.”

Governor Brad Little released a statement on Monday saying “I discussed the issue with the Lt. Governor. All of us must be accountable for our actions and their implications, and I trust her to do the same.”

The two men flanking McGeachin are Anthony Dephue and James Ward, members of the Political Prisoners Foundation. The foundation is an active non-profit in good standing with the Secretary of State’s office. The group advocates for Todd Engel, who was sentenced to serve 14 years in prison after his involvement in the Nevada standoff at Cliven Bundy’s ranch.

According to the Southern Policy Law Center, the OK hand gesture is sometimes used as a symbol of “white power,” when used by alt-right.

“The problem, of course, is that there are white nationalists, neo-Nazis, and Klansmen who have increasingly begun using the use of the symbol both to signal their presence to the like-minded, as well as to identify potentially sympathetic recruits among young trolling artists flashing it. To them, the configuration means WP, for “white power.”’

The hand gesture can also signal support for the Three Percent movement.

For the antigovernment Three Percenter movement this same hand gesture symbolizes their belief in the disputed claim that only three percent of American colonists fought against the British in the American Revolution,” says a 2017 SPL post. “The three extended fingers represent this three percent.”

McGeachin says in her statement that viewing this in terms of race “is part of a larger narrative to paint conservative leaders as embracing identity politics.”

“It had been our hope that this incident, whatever the intentions, would provoke a deeper dialogue. Clearly the dismissal of these concerns as ridiculous tells us all we need to know,” said Sen. Jordan after reading McGeachin’s statement.

Idaho Reports communicated with Dephue on Facebook. We are being characterized as White Supremacists for our hand gesture,” Dephue wrote. “We would like to engage in a civil dialog that will help your audience make an informed decision.”

Dephue did not address the possible racism in the hand gesture.

McGeachin explained why she deleted the picture from her Facebook Page. “Once I discovered that a few people had begun erroneously assigning sinister motives which are contrary to my character, I immediately deleted the post,” said McGeachin. “The photo was intended to show support for Engel and nothing more.”

Regardless of the intent behind the hand sign, some Idaho politicians have spoken out strongly over the photo.

“This image and the message that it sends is appalling,” former Republican legislator and Congressional candidate Luke Malek told Idaho Reports. “The Capitol of our great State… our people’s house… should never be used as a platform for hate.”

This photo is not the first time McGeachin has been connected to alleged racism on the internet. Idaho Reports reported on Facebook comments made during last years campaign.

“I’ve seen one, now I’ve seen two,” Sen. Cherie Buckner-Webb told Idaho Reports.

“I’m surprised,” said Senate Minority Leader Michelle Stennett. “The lieutenant governor should be more judicious with who she meets.”

In a joint statement from Senate Minority leadership, the senators stated constituents are upset.

“We have heard numerous grave concerns overnight and today from constituents who are now fearful of coming to the statehouse,” said the statement, released Friday morning. “Some have said they will not allow their children to visit. The openness of the statehouse is foundational to our service. Whatever the intention of the post, the impact has resonated negatively across the state.”

In the statement, Democratic leadership did not publicly call for disciplinary action or an apology from McGeachin.

The Lieutenant Governor of Idaho presides over the Idaho Senate, meaning regardless of how they feel, the senators will have to continue working with McGeachin.

Senate President Pro Tem Brent Hill told Idaho Reports on Friday morning that he had just seen the post. “She is not part of the legislative branch of government. I have no authority to discipline her or have an ethics committee. That’s going to have to be worked out with the executive branch of government.”

Hill said he didn’t know until this morning that the hand gesture was affiliated with either Three Percenters or white supremacy.

“I just can’t react to that yet. I’m sorry, I haven’t seen it. I haven’t talked to her about it,” he said, adding that the dignity of the Senate does need to be protected.

Gov. Brad Little’s office said he will wait to release a statement until meeting with McGeachin.

Melissa Davlin contributed to this report. Idaho Reports will have more throughout the day, and on this week’s episode. Idaho Reports airs Friday at 8 pm.

This story was updated to include a statement by Governor Brad Little at 4:38 on Monday.

 

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US Supreme Court overturns ISC decision on right to appeal

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By Melissa Davlin, Idaho Reports 

The United States Supreme Court reversed an Idaho Supreme Court decision on Wednesday, siding with an Idaho inmate who claimed his public defender was ineffective. The broad ruling has nationwide implications, giving more clarity on the standard for waiving certain rights in court.

The case, Garza v Idaho, centered on the right to appeal. In 2017, the Idaho Supreme Court rejected petitioner Gilberto Garza Jr’s claim that his trial attorney was ineffective after the attorney ignored Garza’s requests to file an appeal after Garza had agreed to plea agreements. Wednesday’s 6-3 ruling reverses that decision, with Justice Clarence Thomas, Samuel Alito, and Neil Gorsuch dissenting. 

In 2015, Garza signed two plea agreements that waived his right to appeal. Shortly after sentencing, Garza informed his court-appointed public defender that he wished to appeal anyway. The attorney declined, citing those plea agreements, and ignored repeated phone calls and letters from Garza asking to file the appeal.

The 2017 Idaho Supreme Court opinion said it was unclear at the time what the standard for ineffective counsel was once a defendant knowingly signed a plea agreement that waived certain rights.

“Generally, when trial counsel fails to file an appeal at a criminal defendant’s request, such performance is professionally unreasonable and therefore deficient,” Chief Justice Roger Burdick wrote. “To show that counsel’s deficient performance was prejudicial, the defendant must show there is a reasonable probability that, but for counsel’s deficiencies, the result of the proceeding would have been different. This test applies to claims that counsel was ineffective for failing to file a notice of appeal.”

“However, whether counsel was ineffective becomes unclear when the reason the attorney did not file the appeal is because the client waived the right to appeal as part of a plea agreement,” Burdick wrote. As of 2017, other courts had ruled on the issue and had split their opinions, but neither the Idaho Supreme Court nor the US Supreme Court had weighed in.

That changed this week. Justice Sonia Sotomayor penned Wednesday’s majority opinion, saying that language in plea agreements varies, and the possibility exists for waivers of appeal forfeitures.

“Garza’s attorney rendered deficient performance by not filing a notice of appeal in light of Garza’s clear requests,” Sotomayor wrote. “Given the possibility that a defendant will end up raising claims beyond an appeal waiver’s scope, simply filing a notice of appeal does not necessarily breach a plea agreement. Thus, counsel’s choice to override Garza’s instructions was not a strategic one. In any event, the bare decision whether to appeal is ultimately the defendant’s to make.”

Sotomayor wrote the ruling doesn’t mean Garza’s plea agreement is meaningless.

“Contrary to the argument by Idaho and the U. S. Government, as amicus, that Garza never ‘had a right’ to his appeal and thus that any deficient performance by counsel could not have caused the loss of any such appeal, Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants,” she wrote.

Sara Thomas, administrative director for the Idaho Supreme Court, said Wednesday’s ruling has broad implications for court proceedings nationwide.

“I think the biggest thing here is there is clarity for defense attorneys to understand what their responsibilities are,” Thomas said, adding this applies to public defenders and private attorneys alike. “Clarity is good.”

The opinion sets a more clear standard for waivers on two fronts, Thomas said: The language of the waiver needs to be specific as to which rights a defendant is waiving, and attorneys need to know that defendants are knowingly, intelligently, and voluntarily waiving those rights.

“There will be, I think, a big shift in procedure and how cases flow through the system,” Thomas said.

Idaho Reports will have more on this ruling. Meanwhile, you can listen to the October 2018 oral arguments here, and read Wednesday’s opinion here. 

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Senate committee approves new mid-level dental provider category for reservation clinics

By Melissa Davlin, Idaho Reports

On Wednesday, the Senate Health and Welfare Committee passed legislation from the Coeur d’Alene Tribe that seeks to address gaps in dental care for American Indian tribal members, despite opposition from some dental professionals.

The bill would legalize a new type of mid-level dental provider in Idaho. Dental health aide therapists, or DHATs, are trained in a limited number of procedures like fillings and extractions.

The legislation now goes to the Senate for a vote.

Gaps in care

Nationwide, American Indian and Alaska Native children experience four times the amount of untreated dental disease compared to white children, with nearly half of American Indian five-year-olds experiencing tooth decay, according to a 2015 Indian Health Services policy brief.

American Indian adults also experience the highest rates of dental disease among any demographic, with two-thirds of adults between the ages of 34 and 49s experiencing decay and other ailments.

There are multiple reasons for that. Though 90 percent of Idahoans live within a 15-minute drive of a dentist, many of those dentists don’t accept Medicaid. In short, it doesn’t matter if you live by a dentist if that dentist won’t see you.

Generational trauma and cultural sensitivity play into the lack of care as well.

Matthew Stensgar, chairman of the Coeur d’Alene Tribe’s Marimn Health Board of Directors, told Idaho Reports in January about the terror he felt as a child when visiting the dentist.

In the past, dental providers from outside the Coeur d’Alene Reservation would treat children in mobile clinics, with the line snaking out the door, Stensgar said. Because those dentists had to treat everyone at once, they hurried patients through, sometimes drilling or pulling teeth before painkilling shots had taken effect.

“They didn’t really care about if we were in pain while we were receiving our dental care,” he said. “A lot of times the numbing shots didn’t take effect, and you could really feel them drilling.”

Dental procedures have changed, but Stensgar is still afraid of going to the dentist.

Having tribal members train to be DHATs could relieve those concerns among his fellow community members, Stensgar said.

The United States DHAT program started in Alaska to address far-flung native communities with no dental care. In other states that have adopted the program, DHATs are trained in a limited number of procedures that they can perform, unlike dental hygienists, who are limited to cleaning and preventative treatments. Dentists learn how to do about 500 procedures in four years of dental school, while DHATs learn 46 over the course of two years, plus 500 hours of supervised training after graduation.

Unlike dentists, who are required to have a four-year degree before applying for dental school, or dental hygienists, who require an associate’s degree, students can apply for the DHAT program right out of high school.

An uneasy compromise

The Idaho State Dental Association opposed a previous proposal from the tribe, citing patient safety concerns. In short, DHATs receive fewer hours of training than a dental hygienist, but have the ability to do more procedures without the direct supervision of an on-site dentist.

But in recent weeks, the ISDA worked out a compromise with the Coeur d’Alene Tribe, and is now neutral on the legislation.

“As in any good compromise, no one got everything they wanted,” said Coeur d’Alene Tribe legislative director Tyrel Stevenson.

Under the new proposal, DHATs are limited to working on federally qualified health clinics on reservations, and can do limited preventative care in facilities that are adjacent to reservations. Additionally, dentists may supervise only three DHATs at a time.

Though both the ISDA and the State Board of Dentistry are neutral on the legislation, the Idaho Dental Hygienists Association voiced its opposition, as did individual dentists who broke with the ISDA.

Ultimately, the Senate committee voted in favor of sending the bill to the Senate floor.

“I think it’s fitting to point out that not one of us (on the committee) will be affected by this bill, and that’s because we don’t live on a reservation,” said Sen. Lee Heider, R-Twin Falls. “We’re not privy to the care, or the lack thereof, that reservations receive.”

 

Watch our January 29 story on the DHAT proposal and dental care on tribal reservations at this link.

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Idaho GOP chairman Parker resigns

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Jonathan Parker. Source: idgop.org

By Seth Ogilvie, Idaho Reports

Idaho Republican Party Chairman Jonathan Parker is stepping down.

Frank Terraferma, executive director of the party, confirmed Parker’s resignation to Idaho Reports on Monday.

“Jonathan notified the state central committee that he was stepping down,” said Terraferma.

According to the GOP State Rules, current First Vice-Chairwoman Jennifer Locke now assumes all duties and responsibilities of chairman until the next GOP state meeting.

Locke was a Trump elector at the 2016 convention. She currently works as a Deputy County Clerk in Kootenai County.

According to the Coeur d’Alene Press, Locke has a bachelor’s degree in economics from the University of Southern Maine and has lived in north Idaho for almost a decade.

Locke did not respond to requests for comment immediately.

In a statement sent out Tuesday morning, Parker cited family as his reason for stepping down.

“(M)aintaining a full-time job and being a fully engaged Father has been harder than I imagined, so much so that I have reluctantly decided that I should no longer continue to serve as Chairman of the Idaho Republican Party so that I can focus on the priorities I place above all others,” Parker wrote.

According to the party rules, the Idaho Republican Party will likely vote on a new Chairman at the party’s June summer meeting.

 

 

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Medicaid bill would void expansion if feds change funding structure

By Melissa Davlin, Idaho Reports

The next round in the fight surrounding Medicaid expansion has begun.

On Monday, Sen. Mary Souza introduced legislation that would void expansion if the federal government changes its 90/10 cost-sharing formula and establish a voluntary workforce training requirement program. Read the bill here.

The proposal would also direct the department to provide subsidies for insurance plans through the insurance exchange for those in the gap who are above 100 percent of the federal poverty line instead of enrolling them in Medicaid. That part of the proposal would require a waiver from the federal government.

Another section instructs the Idaho Department of Health and Welfare to seek waivers to use Medicaid funds for substance abuse and mental health care. The idea behind this, Souza said, was to help lessen the impact for counties who may receive less financial help for these services through catastrophic health care and indigent funds.

I believe these are not restrictions on Medicaid expansion,” Souza said. “These are protections and enhancements.”

Ultimately, the Senate Health and Welfare Committee was split 5-4 on whether to allow a hearing on the proposal, with Senators Fred Martin, Lee Heider, David Nelson, and Maryanne Jordan voting no.

My preference has always been simply to fund it,” Martin said.

 

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Idaho Supreme Court upholds Medicaid expansion

By Melissa Davlin, Idaho Reports

Updated 5:48 pm Feb. 5

The Idaho Supreme Court upheld Medicaid expansion in an opinion released Tuesday.

The opinion states Medicaid expansion does not delegate lawmaking authority to the federal government, as plaintiff Brent Regan argued in his November lawsuit.

Read the opinion, written by Chief Justice Roger Burdick, at this link.

Here are my initial takeaways:

-Justices didn’t buy the argument that the state is delegating its lawmaking authority to the federal government. “Idaho’s ongoing participation in Medicaid, even prior to expansion, requires a yearly appropriation of funds from the legislature,” the opinion says. Through that annual appropriation, the Idaho legislature will control the ongoing nature of Medicaid.  “Additionally, as the United States Supreme Court has said, ‘[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or ‘retroactive’ conditions.’“

In other words, Congress can’t suddenly withdraw the 90/10 match for Medicaid funding. If that change happens, states will get plenty of notice.

-Almost everyone wanted a say. It’s normal to have a unanimous opinion; It’s also normal to have a dissenting opinion. This ruling has the majority opinion written by Chief Justice Roger Burdick, a concurring opinion by Justice John Stegner, an opinion that concurs in part and dissents in part by Justice Robyn Brody, and another concurring-dissenting opinion by Justice Greg Moeller. The only justice who didn’t weigh in was Justice Richard Bevan, who, incidentally, was also the only justice who didn’t ask questions during last week’s oral arguments.

Remember, too, how new this court is. Of the five justices, only Burdick has been there longer than two years; Three have been there less than a year. We may be getting a peek at how this dynamic is going to shake out.

-The dissents don’t agree with Regan; If anything, some of the arguments are more strongly worded. Both Moeller and Brody both say they would have rather the Supreme Court not heard Regan’s lawsuit, with Brody saying she would have sent the case to a lower court, and Moeller saying he would have dismissed it outright on its procedural weaknesses.

In his dissent, Moeller says Regan’s petition “suffers from serious justiciability defects,” going on to argue Regan is asking the court to weigh in on political and philosophical arguments instead of constitutional ones.

“This became readily apparent at oral argument, when counsel for Regan, in urging the Court to strike down the new law, argued that what the Supreme Court is really being asked to do is to decide whether this state will “act or be acted upon” when it comes to its relationship with the federal government,” Moeller writes. “Counsel (Bryan Smith) began his presentation with this phrase, and later repeated it when asked by the Chief Justice whether the state could simply “opt out” of Medicaid expansion if the federal government changed the current standards. Such arguments are largely ideological and dogmatic in nature—not legal—and demonstrate that the intent behind the petition is to have this Court redefine the proper role of federalism in Idaho. In sum, this Court is not really being asked to address an urgent constitutional issue created by the passage of section 56-267; rather, Regan is asking this Court to take sides in an ideological debate concerning political philosophy. “

-The court does cite a section of code as unconstitutional — just not the one Regan had been hoping for. Regan argued he had standing to sue as a “qualified elector” under Idaho Code section 34-1809(4). That statute “attempts to broaden this Court’s jurisdiction,” Burdick writes, creating a separation of powers issue.

Boy, that was fast. I was under the impression the Supreme Court wasn’t bound by any timeline regarding this decision, even if the Idaho Department of Health and Welfare had to meet a deadline for submitting Medicaid plan amendments and the Legislature had to fund it. We discussed this on last week’s Idaho Reports with Idaho Supreme Court Administrative Director Sara Thomas.

Still, the justices cited the deadlines and 2019 legislative session as a reason to take up the case, and rule quickly: “(W)e recognize the need for a determination of the constitutionality of section 56-267 during the 2019 legislative session given the fast-approaching 90-day window for the Department to submit any necessary plan amendments, and the Legislature’s need to consider funding for Medicaid expansion. Accordingly, due to the urgency of the alleged constitutional violation and the urgent need for an immediate determination, we will exercise our original jurisdiction over Regan’s petition.”

Well, I’ve been wrong before.

 

I’m still awaiting comment from the Idaho Freedom Foundation. In the meantime, here are reactions from other stakeholders. I’ll continue to update as I receive comment:

Rep. Fred Wood, chairman of the House Health and Welfare Committee: “I’m not an attorney, but I think it’s a good decision.” As to whether this would speed up some of the discussions surrounding Medicaid funding, he said he didn’t think the pending court decision had slowed down the Legislature.

Luke Mayville, Co-Founder of Reclaim Idaho: “I am ecstatic…. We know it was upheld in the court of public opinion by the voters, but it’s an extra boost for the cause of securing health care for 62,000 Idahoans by having the court uphold it as well.”

“With the court having ruled, there is no longer any excuse for inaction on the part of the Legislature. Their job is clear to fund Medicaid expansion and to allow it to be implemented without restrictions.”

Mayville also noted it was a “special joy” to see the ruling the day after the Medicaid expansion advocacy day at the statehouse, at which advocates met with lawmakers to encourage them to expand Medicaid without sideboards like work requirements. “It’s a special prize for them, for all the advocates who worked for this, to now have this sense of relief that knowing the constitutionality of Medicaid expansion is secure.”

 

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Idaho is one of seven states without a maternal death review panel. This proposal would change that.

Updated Feb. 8, 8:10 am

By Melissa Davlin, Idaho Reports

A proposal by the Idaho Medical Association would establish a review panel to track maternal deaths in Idaho.

Idaho’s maternal death rate of 27.1 deaths per 100,000 births is higher than the United States rate of 26.4, said Susie Pouliot, CEO of the Idaho Medical Association. That US rate is also more than twice as high as most European countries.

According to the Centers for Disease Control and Prevention, Idaho is one of seven states without a maternal mortality review panel, and, as of December, was one of just two states without a plan to implement one.

A 2008 legislative effort to establish one didn’t go anywhere, though Idaho does track maternal deaths.

Currently, Idaho death certificates have a checkbox to indicate the pregnancy status of women who have died between the ages of 10 to 54 years, said Niki Forbing-Orr, spokeswoman of Idaho Health and Welfare, in a December e-mail to Idaho Reports.

The checkboxes are: Not pregnant within the past year; pregnant at the time of death; not pregnant, but pregnant within 42 days of death; and not pregnant, but pregnant 43 days to 1 year before death.

The death certificate doesn’t always indicate at what point during the pregnancy the woman’s death occurred.

According to IDHW, between 2008 and 2017, there were 121 deaths to Idaho women who were reported as either pregnant or pregnant within one year before death. Of those, 70 were determined to be pregnancy-related, 34 were from accidents, 7 were from suicide, 7 were from homicide, 1 was undetermined, and 2 were from all other causes. Of the 34 accidental deaths, 10 were from drug overdoses.

There were also racial disparities, with American Indian women experiencing the highest maternal death rates in that time period.

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Source: Idaho Department of Health and Welfare

Though IDHW tracks maternal deaths, no entity exists to make recommendations to improve Idaho’s maternal death rate.

The proposed panel would be funded by a four-year grant from the Centers for Disease Control and Prevention, Pouliot said, and would include physicians, a coroner, a labor and delivery nurse, and others. The panel would have the ability to look into deaths with records and make recommendations regarding medical care, but would not have disciplinary powers.

The House Health and Welfare voted to print the bill on Thursday.

Chairman Fred Wood, R-Burley, supported the panel during a Monday meeting. “(The death rates are) an embarrassment, and we need to find out why,” he said.

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