This week on Idaho Reports: Tiny towns, big challenges

Two lock-down situations at the Mackay health center prompted the clinic CEO to threaten to shut down the center, leaving a small Idaho community questioning the balance between public safety, conservative spending and the will of voters.

The incidents, first discovered by Idaho Reports via Mackay City Council meeting minutes, took place between August 2016 and January 2017. Both happened at the Mackay Clinic of the Lost River Medical Center. In February, CEO Brad Huerta approached the city council, saying he may close the clinic if officials didn’t improve law enforcement services.

Though the community criticized the response times, those same residents recently voted down a tax levy increase that could have paid for an additional county deputy to patrol the area, highlighting the challenge of providing emergency services in rural areas with decreasing populations. And that challenge isn’t unique to Custer County.

We’ll have more on this story on this week’s Idaho Reports. Also on tonight’s show: Lobbyists Seth Grigg of the Idaho Association of Counties, Kathy Griesmyer of ACLU-Idaho, and Brian Whitworth of the Idaho Hospital Association give us a preview of their legislative priorities. We distill the highlights from the Associated Press’s legislative preview with Gov. Otter and legislative leadership. Finally, Bill Spence of the Lewiston Tribune, Clark Corbin of Idaho Education News and Betsy Russell of the Spokesman-Review join the pundits.


Veyo ends its contract with state of Idaho

The Idaho Department of Health and Welfare has announced Veyo is terminating its contract with the state of Idaho to provide non-emergency medical transportation services for Medicaid patients.

Idaho Reports broke the story of issues with Veyo in January. Complaints included unattended children with special needs, an alleged sexual assault, inadequate safety measures, and more. Read that story here. 

In January, the Department of Health and Welfare said it was working with Veyo to address those issues. Monday’s press release did not give a reason why the contract was ended early.

The state of Idaho provides transportation to medical appointments and therapy for qualifying Medicaid patients. In 2016, Veyo won the $71 million contract to act as a broker for those rides, beating out long-term provider AMR. AMR had also received complaints over its services.

Veyo provided an average of 100,000 rides per month throughout the state.

Calls to IDHW have not yet been returned.

Read the press release below:




Veyo contract for Non-Emergency Medical Transportation services to end on March 5


Veyo, LLC, has provided notice to the Idaho Division of Purchasing exercising its early termination rights under the contract for Medicaid Non-Emergency Transportation Services (NEMT) managed by the Idaho Department of Health and Welfare.


Both the Division of Purchasing and the Department of Health and Welfare are working to transition these services to a new provider without disruption to Medicaid participants. The expected date of transition is March 5, 2018.


“We will continue to work with Veyo to ensure that Medicaid participants receive safe and reliable transportation services that meet their health needs. We are confident we will have a new NEMT broker in place by the time this contract ends.” said Matt Wimmer, administrator for the Division of Medicaid. “We will ask our new NEMT broker to work closely with the Idaho NEMT provider network in a collaborative and open manner as we work through this transition.”


Approximately 100,000 NEMT trips are needed each month for Medicaid participants who need transportation to access their Medicaid covered services.





What we did over summer vacation

By Melissa Davlin

We’ve been pretty quiet over here on the Idaho Reports blog this summer, but don’t think we’re idle. With the exception of some analysis and our Sept. 1 Cecil Andrus special, we’ve kept busy with other projects.


Aaron Kunz on a shoot for “Wild Horses,” an upcoming Outdoor Idaho show. Photo courtesy Aaron Kunz. 

As some of you may know, Aaron Kunz isn’t just co-host of Idaho Reports — he’s the production manager for all of Idaho Public Television, and also shoots footage for various IdahoPTV productions. He’s spent most of his summer laying the groundwork for “Idaho Experience,” a new history series debuting in 2018. We’re excited to share more about this project when it’s ready to be released into the wild. In the meantime, Kunz is taking a hiatus from Idaho Reports to focus on the new show with director Bill Krumm.

Producer Seth Ogilvie is working on upcoming Outdoor Idaho specials, including the tentatively named “Hops and Barley,” featuring Idaho’s beer scene and related support industries. The production has taken him across the state, touring breweries and sitting in combines during the barley harvest. He’s also working on ongoing investigations for Idaho Reports. In addition, Ogilvie and director Troy Shreve are hammering out a new look for Idaho Reports, which we hope to unveil when the new season starts in December.

Shreve has also worked on Outdoor Idaho productions, including “Hops and Barley” and “Into The Pioneers.” In July, Shreve joined the OI crew on a four-day backpacking trip to the base of Standhope Peak. He also shot footage of a 100 mile mountain bike race for the Pioneers show.


Seth Ogilvie shooting a sunset for his upcoming Outdoor Idaho show on Idaho’s beer industry. Photo by Melissa Davlin

In August, I produced a segment for “Into The Pioneers,” an upcoming Outdoor Idaho show scheduled to air in early December. I climbed Old Hyndman in the Pioneer range — the hardest peak I’ve ever summited — with Bill Manny of the Idaho Statesman, Manny’s daughter Helen, and House Minority Leader Mat Erpelding. (This way, I can claim it’s sort of related to political journalism.) I’ve also started production for an episode of “Idaho Experience,” focusing on how Chinese immigrants have quietly shaped Idaho since the 1860s. I’ve spent the last several weeks reading newspaper articles from the 1870s and 80s and tracking down stories of this little-discussed community that helped build Idaho’s infrastructure.


Melissa Davlin and Mat Erpelding climbing Old Hyndman for an Outdoor Idaho shoot on August 16. Photo by Bill Manny

In June, Ogilvie and I attended the Investigative Reporters and Editors conference in Phoenix, Arizona, to hone our reporting and storytelling skills. We spent five days getting great story ideas, learning database and PDF skills that will assist our investigations, and discussing underreported issues in the western United States.

We haven’t entirely abandoned politics. Idaho Reports will return Dec. 1, running half-hour shows every Friday until the start of the 2018 legislative session in January. We’ll switch to hour-long shows during the session. We’re also gearing up for the Idaho Debates.

So stick around. You know us — We can never stay away from politics for too long.



Troy Shreve shoots footage for “Hops and Barley,” an Outdoor Idaho episode airing in 2018. Photo by Seth Ogilvie



Idaho Reports web extra: “Butch, we don’t have room.”



By Melissa Davlin, Idaho Reports


Like nearly everyone in Idaho, we’ve heard amazing stories — some poignant, many hilarious — about Gov. Cecil D. Andrus, who passed away Aug. 24.

We put together a half-hour special to remember the former Interior Secretary and Idaho’s longest serving governor, but thirty minutes isn’t enough to cover any man’s life, much less one as storied as Andrus’. We had to leave some of the funniest stories on the cutting room floor.

Here’s my favorite. During the 1986 campaign, Butch Otter, who was running for lieutenant governor at the time, called his parents in Weiser to ask if he could stay with them the night before a campaign event. He got a surprising answer, as you’ll see in the video below.

We’ll post more of these stories over the next week. For our full special, watch “Idaho Reports: Remembering Cecil Andrus” at 8 pm September 1st on Idaho Public Television, or watch at after it airs.




Takeaways from Nate v Denney ruling: A nerdy exploration of legislative implications


Lawmakers challenging Gov. Otter’s grocery tax repeal veto pose for a photo in front of the Idaho Supreme Court on June 15. Photo by Melissa Davlin/Idaho Reports

By Melissa Davlin and Seth Ogilvie, Idaho Reports

The Idaho Legislature has been violating the Constitution for 50 years, and as a result, will have to stay after school until it turns its homework in.

Oh, and you’ll still have to pay that 6 percent sales tax on your groceries.

All that and more, according to a 4-1 opinion released by the Idaho Supreme Court on Tuesday afternoon.

As Idaho Reports producer Seth Ogilvie wrote last week, the implications of the lawsuit were bigger than whether Idahoans would continue paying a 6 percent tax for their groceries. You can read his legal primer here. 

And the implications of this ruling are bigger than your grocery bill, too. Here are our takeaways:

1. The House and Senate must present all legislation to the governor before adjourning sine die for the session. This breaks with the tradition of the legislature, which (as we saw in this court challenge) regularly delivered bills to the governor up to a few days after adjournment.

“In summary, Article IV, section 10, of the Constitution clearly and necessarily prohibits the legislature from presenting bills to the governor after the legislature has adjourned sine die,” the opinion says. “It requires that bills must be presented to the governor while the legislature is still in session. That is the only logical interpretation of the section.”

There’s another note: If the court had applied this ruling retroactively, it could have taken out every single other piece of legislation delivered after sine die, either this year or from previous years — this year’s transportation bill, for example.

“A bill cannot become law unless it is presented to the governor (according to) Idaho Const. art. IV, § 10, and, as explained above, that presentment must occur while the legislature is in session,” the opinion reads. “If we declared the Governor’s veto untimely, we would also have to declare the law he vetoed void because it had not been presented to him before the legislature adjourned sine die. Both the presentment by the legislature and the veto by the Governor violated the Constitution.”

2. Individual lawmakers have standing to challenge vetoes, as opposed to the legislative bodies as a whole. This, again, breaks from tradition. Previously, the US Supreme Court held that the US House of Representatives, as a body, had standing to sue the Obama administration over the Affordable Care Act. The precedent this sets could be interesting.

3. The Idaho Legislature has been violating the Idaho Constitution for 50 years. “It appears that the first time in our State’s history that bills were presented to the governor after adjournment sine die was in 1967, when the house presented bills to Governor Samuelson nine days after adjournment sine die… Since then, the legislature has routinely presented bills to governors after adjournment, with no apparent objection by those governors,” the opinion says. “Of course, their failure to object cannot change the requirements of the Constitution.”

If anything, this opinion scolds the Idaho Legislature far more than it does the governor.

4. It wasn’t a unanimous decision. Justice Warren Jones dissented, saying the ruling amounts to a change of the Idaho Constitution — not an interpretation, as the majority maintains.

That doesn’t mean he’s a fan of Cenarrusa. “Which “interpretation” is correct?” he writes in his dissent. “Neither; I am bothered by both results because both demonstrate a disregard for the integrity of the Constitution. Again, the bottom line is that both “interpretations” amount to unauthorized amendments to the Constitution.”

5. The one thing the court didn’t bring up: Whether this challenge creates a shortcut to the bench by bypassing lower courts, where lawsuits normally start.

“The hazard here is if the court immediately takes up the constitutionality, the court has created a shortcut to its bench,” argued Deputy Attorney General Brian Kane in his June 15 oral arguments in front of the Supreme Court.

Keep an eye on whether this, like the standing decision, sets a precedent moving forward.


A legal primer in the grocery tax veto case

By Seth Ogilvie, Idaho Reports



Most people following the the grocery tax repeal veto drama are focused on the political drama of the court’s pending decision (Republican lawmakers challenging a Republican governor’s veto) and the fiscal impacts — not just for Idahoans’ grocery bills, but for the state’s coffers.

But as Idaho Reports producer Seth Ogilvie explains, there are big legal implications surrounding the challenge, too.


A grocery tax study guide

The Idaho Supreme Court has three major questions to answer if it wants to overturn the 1978 Cenarrusa v. Andrus decision and the Governor’s veto on the grocery tax repeal bill. None of them have anything to do with food, but all of them could have dramatic implications.

Did the right people make the argument?

In April, 30 legislators sued to invalidate the grocery tax veto. In order for the court to decide the merits of the case, first the legislators have to convince the court they have standing. Justice Robyn Brody outright asked the question, “Who has standing to bring this case?” in oral arguments on June 15.

In layman’s terms, standing means the legislators have to show that they have been harmed or will be harmed. The Supreme Court laid out its own matrix in Coeur d’Alene Tribe v Lawrence Denney:

“[T]o establish standing a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a like [lihood] that the injury will be redressed by a favorable decision. An injury sufficient to satisfy the requirement of an injury in fact must be concrete and particularized and actual or imminent, not conjectural or hypothetical.”

According to the same opinion, the injury also has to be “actual or imminent losses of profit or rights greater than the average citizen.” It’s hard to argue that these 30 citizens would have any greater injury than any other citizens, but they’re not everyday citizens. They are representatives and senators of the Idaho Legislature. It would be far easier to prove the Senate or House as institutions are suffering harm rather than the individual legislators themselves, because they are the branches of government directly impacted.

“Although these are very dear friends that are the petitioners, they don’t represent the legislature, they represent themselves as legislators,” said Senate Majority Leader Bart Davis (who, since our interview, was nominated to be the new US Attorney for the District of Idaho). “They don’t represent even the majority of one of the two bodies… so legislators don’t normally have by themselves standing, or at least we don’t normally think of it that way.

“The Supreme Court understood that,” Davis added. “I could see that they understood that.”

The governor’s lawyer, David Hensley, agreed. “A grocery store owner in a border community would have standing,” Hensley said during oral arguments, but not the 30 petitioners.

This, however, is not the end of the argument. Bryan Smith, the attorney for the petitioners, pointed to another line from Coeur d’Alene Tribe v Lawerence Denney:

“The Tribe has not demonstrated a ‘distinct and palpable’ injury sufficient to confer standing… However, we may nonetheless exercise jurisdiction over this writ.”

To put it another way, if the court thinks this case is important enough, it will hear it anyway.

If the court decides to concur with the Coeur D’Alene Tribe case and overlook standing, a good explanation by the court is needed in the wake of Joki v. State, the school funding case in which the court dismissed the claim because the plaintiffs did not demonstrate proper standing despite a clear importance of the case.

“CBECA provides three distinct types of standing to sue. I.C. § 6-2205. To properly add the State Defendants, Joki was required to comply with Idaho Code section 6-2205(3). He did not. Accordingly, notwithstanding their various responsibilities, the State Defendants were properly dismissed.”

If the court is able to navigate through the standing argument without dismissing the case, it will still find another hurdle in getting to the merits of Cenarrusa.


The petitioners are asking for a writ of mandamus, or “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion,” according to the Wex Law Dictionary.

“The court is going to have to decide whether this is the right process to bring it to the Idaho Supreme Court,” Davis explained.

The writ of mandamus is typically given only when there is no alternative means of seeking review. The Attorney General’s office argued that the petitioners had not yet exhausted their alternative means. In other words, they had not gone to district court, but instead went straight to the Supreme Court.

Deputy Attorney General Brian Kane said “The hazard here is if the court immediately takes up the constitutionality, the court has created a shortcut to its bench.”

“It’s procedurally strange,” admitted Smith. He argued it was necessary, though, adding it “does not present a can of worms.”

The court has a difficult procedural question, as posed by Kane: Does this court want to create a shortcut to its bench?

If justices agree a writ of mandamus creates a “shortcut,” the prudent thing for the court to do is show judicial restraint and allow the district court to address the issue. If they believe it is only “procedurally strange,” it will be interesting to see how the court puts up a roadblock for future cases attempting to use this shortcut.

There is an additional complication to sending it down to district court: The time frame. The legislature will most likely deal with the grocery tax issue itself when it reconvenes in January 2018, and then the court would have no ability to address the Cenarrusa decision. These types of veto challenges don’t come before the court often, and with the window to overturn Cenarrusa closing a little bit more every day, it truly will take a heroic act of judicial restraint to not take a swing at the case if the court does want to overturn the ruling.

Is Cenarrusa correct?

In the 1978 Cenarrusa v Andrus decision, the Idaho Supreme court ruled that the Governor had ten days from the time he or she received the bill to veto a piece of legislation — a ruling that some believe directly contradicts the Idaho state constitution, which says the governor has ten days from the legislature adjourning at the end of the session.

Remember, Gov. Otter didn’t receive the grocery tax repeal bill until two days after the legislature adjourned for the session, and he vetoed it eleven days after sine die. The very question of the challenge rests on when the clock started ticking for his veto.

“I have felt for some years that the holding of the Cenarrusa decision was ripe for reconsideration,” Davis said.

The 1978 court interpreted the intent of the constitution, rather than the plain language of the text, as Smith pointed out. “Where is the ambiguity in the phrase?” Justice Horton asked in oral arguments. “Within ten days” would not seem to jive with an 11th or 12th day veto, but separated by six commas you find the phrase “presented to him.” The legal term “stare decisis” in Latin means “to stand by things decided.”

“It is the duty of this court to apply stare decisis,” said Justice Roger Burdick during oral arguments. The court has decided on this question in Cenarrusa. They decided the phrase meant ten days from presentment.

But Smith didn’t see it as an interpretation. “What the court did in Cenarrusa was amend the constitution,” not interpret it, he said. This essentially pits the constitution against stare decisis. We all know the importance of the constitution, but stare decisis has a more complicated impact.

In oral arguments, attorneys and justices also discussed the 3-2 vote in the Cenarrusa decision. It being such a close vote, should the attorney general and the governor’s lawyers have advised Otter that he should meet the 10 day requirement just in case? Stare decisis would tell us no, as many important decisions were decided on close votes: Miranda v. Arizona, District of Columbia v. Heller, Bush v. Gore, Citizens United V. FEC, United States v. Windsor, and Obergefell v. Hodges, just to name a few of the U.S. Supreme Court biggies. Stare decisis tells us we shouldn’t constantly reconsider whether or not you have Miranda rights or gun rights, or if President George W. Bush should have been president every other year. Doing so would create judicial and social chaos.

Then there is Justice Burdick’s other question: “Why isn’t Cenarrusa a good government decision?” The Idaho state government has run reasonably well under the current interpretation of the governor’s veto power. If changed, “the court will be jerking the rug out from underneath the governor,” Hensley said.

In the final days of the legislature, things move fast. After sine die, legislators head home almost immediately, and often times staff members take a short break. This year sine die was on a Wednesday — March 29th — and the bill was delivered two days later, on Friday, March 31st. If you give the governor two days for the weekend (because he deserves a weekend just like the rest of us) and if you remeber this year the governor was sick at the time (remember the postponed sine die press conference?) that puts us at the following Monday. (Even then, Otter still appeared to be showing some symptoms of his illness at the Monday sine die press conference.)

Then on Wednesday, April 5th, Jerome “Sunny” Otter, the governor’s brother, passed away. I think common decency would give him at least two days to deal with a loss like that. Throughout that time, the governor also had to run the state and deal with the dozens of other pieces of legislation. If we use the 10 days from sine die rule and subtract the days we gave the governor due to either sickness tragedy or lack of having the bill, he’s left with either one or two days to veto the legislation, depending on how liberal you are with the sick time. If you went from the time of presentment a la the Cenarrusa decision, he vetoed the bill a day ahead of schedule.

The other issue: There is no constitutional requirement saying the Idaho Legislature has to turn the bill over to the governor before the ten day deadline. The system is solely dependent on the decency of the people holding the offices to transmit legislation in a timely fashion.

However, “even if the Idaho Supreme Court were to reverse the Cenarrusa standard,” Davis said, “if the Legislature held onto (a bill) for 8 or 9 or 10 days, then I think the court could take a look on a case-by-case basis on whether there is a different remedy.”

That would leave Idaho with a different deadline for the governor’s veto, and the court system responsible for keeping the Legislature honest. However, if the court decides to overturn Cenarrusa, that doesn’t mean they will decide to overturn the specific grocery tax veto.

Should the governor be punished for following the law?

The governor was following the law at the time of the veto. As Kane argued, “the state (would be) punishing state actors for complying with the ruling of the court.”

There is, however, one elegant solution to that problem. If the court decides it is comfortable with the standing issue, thinks it is the right court to hear the case, and wants to overturn Cenarrusa, but doesn’t want to punish the governor or create a precedent by which people should doubt close court decisions, they could overturn their previous decision but apply it only to vetoes after the decision, allowing the veto to stand but reversing a ruling they didn’t agree with.

In other words, the court could toss Cenarrusa, but allow Otter’s veto anyway.

More than just taxes

Like all legal fights, we’re going to eventually have a conclusion. Here are the big questions Idaho needs answered by the court: How does the court judge standing, and will it set a bad precedent? How do justices explain the proper court of origin, and will that explanation create a shortcut to the bench? And if they get past those hurdles, what happens to Cenarrusa? And will any of this effect the six percent tax on groceries?

I told you this had almost nothing to do with food.