On Idaho’s public defense, and what’s next

On Friday,  the Idaho Supreme Court released a decision allowing the ACLU of Idaho’s lawsuit over public defense to go forward in district court — nearly two years after the initial challenge, and ten years after the State Appellate Public Defender first asked for a study on Idaho’s indigent defense. While we wait for the court to make a decision, Idaho’s counties, attorneys, and defendants are still dealing with the reality of a strained public defense system.

While the district court initially agreed with the state that the ACLU hadn’t sued the correct parties (that was the decision the Supreme Court partially reversed on Friday), Idaho courts haven’t yet ruled on the merits of the case itself — that Idaho’s indigent defense system is constitutionally inadequate.

As we’ve reported before, Idaho isn’t the first state to face lawsuits over the constitutionality of its public defense system. (Nor is it the most recent: Louisiana and Missouri are the latest in a growing list to face similar challenges.)

And the state and ACLU aren’t the only players. In April 2016, three months after the initial lawsuit was dismissed, then-US Attorney Wendy Olson and the Department of Justice filed a friend-of-the-court brief on behalf of the ACLU,  saying “The United States has a strong interest in ensuring that all jurisdictions – federal, state, and local – fulfill their constitutional obligation to provide counsel to criminal defendants and juveniles facing incarceration who cannot afford an attorney.” (For much more on the larger implications of the nation’s public defense issues, read this post from May 2016.)

That brief came after the 2016 Legislature passed the first step of public defense reform, which included $5.5 million for the state’s Public Defense Commission to provide grants to counties and establish standards.

But by that point, the ACLU’s challenge was already in motion. Now that the Supreme Court has remanded the case back to trial court, we have to wait and see whether the Legislature’s actions are enough.

Meanwhile, some counties are still facing the reality of an overburdened public defense system — and in at least one case, struggling to keep their defenders. In September, Nez Perce County increased the pay for its contracted public defenders by $25,000 each after two left their position  (Eventually, one attorney returned to the position, while the second left. The county filled that vacancy with another attorney.)

Nez Perce County had previously been cited as having overburdened public defenders, and Idaho Reports profiled the county in 2015 to explore its indigent defense workload. You can watch that episode here. 

Idaho Reports will continue to report on public defense reform. And if recent history is any indication, we’ll have a while before we get a final answer.


Supreme Court to allow public defense challenge to go forward


By Melissa Davlin and Seth Ogilvie, Idaho Public Television

The Idaho Supreme Court will allow a challenge on Idaho’s public defense system to go forward, partially rejecting the state’s argument that it isn’t the correct defendant in the case, and holding that the state is not immune from the lawsuit.

The court agreed that there are issues with the state’s public defense, saying “Appellants suffered ascertainable injuries by being actually and constructively denied counsel at critical stages of the prosecution, which they allege are the result of deficiencies in Idaho’s public defense system.”

The opinion, issued Friday morning, isn’t on the public defense system itself; Rather, it partially reverses a district court dismissal of the case. Friday’s opinion does allow the challenge to go forward, but without Gov. C.L. “Butch” Otter as a defendant.

In arguments, the state’s attorney hadn’t claimed the public defense system was robust, but said the state wasn’t the right party to sue. The Supreme Court disagreed. “The state would create a substantial likelihood of remedying the injuries alleged because the state has the power, and indeed, the responsibility to ensure public defense is constitutionally adequate,” the opinion says.

“The (Public Defense Commission)’s failure to promulgate these rules illustrates the appellants’ injuries are fairly traceable to the PDC,” it adds.

The Supreme Court did agree with the state, however, that Otter wasn’t responsible for the defendants’ issues.

“Unlike the state, the casual chain linking appellant’s injuries to governor is too attenuated,” the opinion says. In other words, it was difficult to show a link between Otter and the plaintiffs.

“The right to counsel which appellants seek to vindicate is not entrusted to a particular branch of government, nor does a particular branch of government merely have discretion to enforce the right to counsel a fundamental right,” the opinion says.

We’ll have more on this on Idaho Reports. In the meantime, here’s the opinion and the summary.




Idaho Reports web extra: Congressman Labrador Meridian town hall

On Wednesday, Congressman Raul Labrador returned home from DC to face a rowdy — and sometimes angry — crowd of constituents at a town hall meeting in Meridian.

Questions ranged from abortion to net neutrality, health care to Mar-A-Lago, and the constitution to rockhounding. Initially, Labrador and his team planned to cut off the event after an hour and a half, but the congressman stayed and answered everyone’s questions. Ultimately, the meeting lasted more than three hours.

And while some didn’t like his answers, several commented they were impressed with his stamina. You can watch the whole meeting here:

The congressman offered his thoughts on the “town hall hoopla” in his Friday newsletter, saying the crowd was “boisterous, but largely respectful.”

Labrador will host another town hall meeting at 6:30 pm on Monday, April 24 at Mission Aviation Fellowship in Nampa.

For more, watch the April 21 episode of Idaho Reports. Idaho Reports airs 8 pm Fridays on Idaho Public Television. You can also watch online at idahoptv.org/idreports.


Payday loans, poverty and welfare: An uncomfortable relationship


A $1024.54 payment to Moneytree Inc through the Department of Health and Welfare’s Navigation program, which helps families in poverty.

(Note: This story is part of an Idaho Reports series on Temporary Assistance for Needy Families, or TANF.) 

By Melissa Davlin, Idaho Reports

You’ve seen ads for payday loans, and you’ve likely heard about the dangers — high interest rates, fees for late payments. But there’s a small amount of taxpayer dollars that goes to help people pay off those loans in an effort to nudge them out of a cycle of debt.

Temporary Assistance for Needy Families, or TANF, is a federally funded block grant program that has a wide variety of uses. The Idaho Department of Health and Welfare receives TANF money that it uses for programs like adolescent pregnancy prevention and job training. (Read more about adolescent pregnancy prevention programs here.)

A small number of Idahoans also receive cash assistance or help paying bills, said Courtney Keith, the DHW Navigation Program Manager for Family and Community Services. Some of those bills are loan payments.

So does that mean the state is using taxpayer dollars to perpetuate payday lending businesses? The answer, Keith said, is more complex than that.

First, a primer on the program: To qualify for TANF help through the Navigation program, an individual must have children in their household. When they enter the program, recipients are set up with a caseworker, who works with them for up to 120 days. That help could come in the form of connecting families with community resources, food banks, government assistance, or budgeting help. Not everyone receives the cash assistance or help with bills, Keith said, and community services often pitch in to help.

The families who receive help are in tough situations, Keith said — one missed rent check away from being homeless, a broken-down car preventing parents from getting to work, that sort of thing. As one of TANF’s primary goals is keeping children with their parents, the idea is paying utilities or mortgages will help keep those families financially secure. That, in turn, decreases the likelihood of children having to enter the foster system.

“These are families that are really on the fringes,” Keith said.

Idaho Reports reviewed more than 10,000 expenditures made through the TANF program between July 1, 2015 and June 30, 2016. The vast majority made sense: Payments for utilities, car repairs, checks to landlords.

A few entries stood out: Specifically, payments made directly to payday and title loan companies on behalf of welfare recipients.

These payments were a tiny fraction of the welfare payments made by the state. Out of 1,489 bill payments made on behalf of Idaho households in fiscal year 2016, only 18 of those were some type of loan payoff — equal to about $6,000, Keith said. Those loan payoffs are also legal.

Though the amount of money is small, it illustrates the uncomfortable position payday lending puts the department in.

Even if the vast majority of TANF dollars don’t go directly to payday lending companies, Keith said many clients who benefit from TANF have often turned to the loans when they’re desperate. While DHW actively counsels people not to use payday lending companies, a small amount of its TANF dollars goes to those same companies, arguably perpetuating their existence.


Source: Idaho Department of Health and Welfare

And the link between payday loans and poverty is well-established. According to Pew Charitable Trusts, the average payday loan borrower earns $30,000, and 58 percent have trouble meeting their monthly expenses. Seven in 10 borrowers use the loans for monthly expenses, like rent and utilities, and most end up paying more in fees and interest than they originally borrowed.

Sometimes, with education and budget help, as well as guidance on how to set up bank accounts, clients can get out of poverty cycles without any TANF payments on their behalf, Keith said. Counseling and education go a long way.

Heidi Caldwell, executive director of Western Idaho Community Action Partnership in Payette, said Idaho’s payday loans contribute to a cycle of poverty among clients she works with.

“People may not understand how those loans work and exactly what they’re getting into,” Caldwell said in a 2016 interview with Idaho Reports. “They’re just needing money maybe to keep their power on or to buy food or school clothes or something that’s an immediate need. And they may not understand that they have double to pay when they turn around.”

Keith said it’s frustrating to see lenders prey on individuals who don’t fully understand the implications of taking out a high-interest loan, especially when people are desperate to pay their rent or bills.

“People who fall into (the payday loan cycle) happen to be the most vulnerable in our society,” Keith said.

If clients stop receiving caseworker help after 120 days, how does the department know if the program is a success?

There are two metrics, Keith said: One, children stay in their homes. Two, the same families aren’t coming back for help again and again.

“That’s a pretty good indicator that they’re making it,” she said.

Seth Ogilvie contributed to this report.


TANF: Helping parents have the talk

(Note: This story is part of an Idaho Reports series on Temporary Assistance for Needy Families, or TANF.) 

By Nishant Mohan, Idaho Reports

When it came time to give her 14-year-old children “the talk,” Juanita Aguilar found it difficult.

“I tried to have the conversation with them before,” said Aguilar, a parent of four. “But it’s even harder to talk about sex and protection when you’re not talking with them about other things.”

Aguilar attended Southwest District Health’s Bridging the Gap Dinner, which seeks to help parents overcome barriers to talking with their children about sex, for the second time in early April. Other health districts host similar dinner throughout Idaho, paid for largely by federal welfare dollars appropriated to prevent out-of-wedlock pregnancy.

Aguilar, who works as a registered dietitian for Southwest District Health, has 14-year-old twins, a boy and girl. She said high school student volunteers at the dinners helped her understand the need to start a conversation and how to make it less awkward.

“They were brutally honest,” Aguilar said. “I think we needed to hear that.”

She said since the first dinner she attended, she has successfully talked with her 14-year-olds about sex.

Training parents to have “the talk” with their children and training teenagers to turn down sexual advances or use contraceptives is a far cry from the cash handouts many may imagine welfare to be.

The Temporary Assistance for Needy Families (TANF) block grant is what most people know as Clinton-era welfare reform. In Idaho, fewer than 100 people in Idaho receive basic assistance through this grant, and the checks, which are limited to $309 per month for a maximum of 24 months per lifetime, come with a requirement of employment or job training participation.

Idaho spends the rest of the TANF grant on a variety of other programs from childcare to workforce training. (Learn more about TANF by watching the April 7 episode of Idaho Reports.)

The Adolescent Pregnancy Prevention (APP) program, which is paid for in part by $167,000 of TANF money, uses a combination of events, a curriculum, and a youth group to help teenagers avoid getting pregnant. One of the four goals outlined in TANF is to “prevent and reduce the incidence of out of wedlock pregnancies.”

Aguilar said she and the other parents saw the student volunteers there as such a valuable resource, they stayed for another half hour past the set end of the dinner. She said she learned that she needs to talk with her children more about what they’re doing in general, so when it comes time to ask about sex, it’s less awkward.

“I’m working on the next one who’s eleven years old.” Aguilar said. “We’re working on just having regular conversations with him – things that interest us both.”

Another part of the districts’ adolescent pregnancy prevention programs is the Reducing the Risk Curriculum. The curriculum is a set of 16 sessions added to high school lesson plans, usually health or home economics, that give teens advice on how to avoid having sex and how to have safe sex.

Ana Vidales, health educator at Southwest District Health, said the nature of the curriculum requires a letter to be sent home with students in the modified classes for their parents to approve their children’s participation.

This program is not at as many schools as Vidales would like. A lack of funding and inconvenience in modifying existing schedules are factors, she said, but another barrier is that not all schools want the program in the first place.

“If the principals or board members, or someone involved in approving the program has a different point of view, it can be difficult,” Vidales said. “I understand not everyone’s going to like what I have to say, but there’s cold hard facts. Sex is happening and it’s not just something deviant people do.”

Currently, at least 460 high school students around the state receive the curriculum. Vidales said students take a pre-survey and post-survey before and after going through the curriculum to test their knowledge on contraceptives and sexually transmitted infections.

Vidales said some graduates of the curriculum are able to take a leadership position by working with parents and educators to reach out to their fellow students in the Youth-Adult Partnership, also part of the program. Vidales said students have even held their own informational nights for parents.

Heather Gagliano, project manager at Central District Health said the students in the pregnancy prevention programs quickly learn the importance of being able to ask questions safely.

“I was observing one of the nurses and a student asked a question and a couple students started giggling. Immediately a couple other kids said, ‘Hey, any question is safe here,’” Gagliano said. “It was really neat to see that. The students supported each other.”


Zollinger, Nate, Smith challenging grocery tax veto

As we learned in 2015, a governor’s veto isn’t always the end of a bill.

On Wednesday morning, Rep. Bryan Zollinger, R-Idaho Falls, Rep. Ron  Nate, R-Rexburg, and former congressional candidate Bryan Smith announced they are asking Secretary of State Lawerence Denney not to recognize Gov. C.L. “Butch” Otter’s Tuesday veto of House Bill 67, the grocery tax repeal.

Nate, Smith and Zollinger said they are prepared to sue over the matter, hoping to overturn not only the veto, but a 1978 court decision on how long a governor has to consider legislation.

The jist of the argument is this: Zollinger and Nate say the Idaho Constitution says the governor must act on all remaining bills within 10 days of the legislature adjourning for the session. As Otter said in his press conference last week, he’s going from 10 days of the bill being delivered to his office.

The grocery tax repeal bill was delivered to Otter on Friday, March 31 — two days after the legislature adjourned.

So what does the Idaho Constitution say?

Article IV, Section 10, addresses the governor’s veto power.  Note the last part: “(u)nless the legislature shall, by adjournment, prevent its return, in which case it shall be filed, with his objections, in the office of the secretary of state within ten (10) days after such adjournment (Sundays excepted) or become a law.”

In short, if the clock started ticking on March 29, when the legislature adjourned, and not March 31, when the bill was delivered to Otter, then the grocery tax repeal would have become law without signature on Monday, said Rep. Ron Nate, R-Rexburg, during the Wednesday press conference.

While the Constitution seems clear, there is case law on this. In a 1978 Idaho Supreme Court case, Cenarrusa v Andrus, a split court ruling, that said the governor has ten days from the time the bill is delivered.

“The governor’s consideration of a bill is an essential element of the legislative process,” the opinion says. “Presentment provides an opportunity for the governor to give full consideration to a bill as finally passed by the legislature. The wise exercise of the executive right of veto necessarily requires thoughtful deliberation, which in turn requires time commensurate with the responsibility.”

Zollinger and Nate told Bryan Clark of the Idaho Falls Post-Register that Cenarrusa v. Andrus was decided based on judicial activism, not a textualist reading of the Constitution. They hope this court will side with them, should the challenge get that far. (Read Clark’s story here.)

High courts can and do overturn themselves, but it’s rare.

Otter’s office announced the veto on Tuesday evening, citing concerns over general fund stability. “In summary, I understand that House Bill 67 has captured the popular imagination. It purports to provide tax relief for the working poor — a worthy ambition but one that is already accomplished through the grocery tax credit,” Otter wrote in his veto letter.

“In our view and in the Secretary of State’s view, it’s a valid veto,” said Jon Hanian, press secretary for Otter, on Wednesday. Tim Hurst, chief deputy in the Secretary of State’s office, confirmed the office had accepted it, and cited Cenarrusa v Andrus as the guidance the office follows.

We’ll have more on this story as it develops. Watch Idaho Reports on Friday at 8 pm for analysis.


Thursday vetoes: Invasive species position, cosmetology, asset forfeiture

On Thursday, Gov. Butch Otter vetoed four bills, all of which had bipartisan support in both the House and Senate.

Read the veto letters here.

According to veto letters provided to Idaho Reports, Otter vetoed a bill to establish an administrator for invasive species policy, as well as a bill to provide funding for that position; civil asset forfeiture reform; and a bill on cosmetology licensing.

House Speaker Scott Bedke confirmed the four vetoes in a phone interview with Idaho Reports.

In his veto letter, Otter called civil asset forfeiture “a classic case of a solution in search of a problem.”

“There have been no allegations that Idaho law enforcement officers or agencies are illegally or inappropriately seizing property from alleged drug traffickers,” Otter wrote. “Its sponsors contend that the measure is aimed at preventing improper forfeiture of assets in the future, but there is no evidence to suggest that such a problem is imminent.”

Critics of civil asset forfeiture disagree. A June 2016 story by Times-News reporter Alex Riggins  cites an example of a couple who lost more than $9,000 in cash through civil asset forfeiture after police found two small bags of marijuana in their home. Neither person was charged with a crime, and there was no evidence that either person was involved in large-scale drug trafficking.

Bedke, who voted against the bill on the House floor, said he was OK with the veto after hearing from Idaho State Police.

“When these guys dedicate their careers to law enforcement, and they have concerns, I take them seriously,” Bedke said.

Bedke said he’s optimistic the veto of the invasive species policy administrator won’t hurt efforts to keep quagga mussels and other invasive species out of Idaho waterways, pointing to bills that provided more funding for check stations and extended the station hours. 

In his veto letter, Otter said he’s also concerned about protecting Idaho waters from invasive species, but said the new administrative position “does little to improve our defenses and preparedness for the potentially devastating impact of a mussel infestation.”

With the veto, Otter issued an executive order to formally continue the work of Idaho’s Invasive Species Counsel, which is overseen by the Idaho State Department of Agriculture.

Sen. Mark Harris, who co-sponsored the invasive species bill with Rep. Terry Gestrin, said he was disappointed. “We worked hard on that bill,” he said, adding he’d received news of the vetoes via phone call on Thursday.

Jesse Taylor, pro bono lobbyist for Bear Lake Watch, had also heard about the vetoes.

I’m very disappointed that the governor has decided to allow politics to direct policy for Idaho’s most important natural resource, which is our water,” Taylor said. 

Both civil asset forfeiture reform and the cosmetology bill had strong support from the Idaho Freedom Foundation, and passed both chambers of the Legislature with both Republican and Democratic votes.

We’ll update this post with more information as we get it, and we’ll have more on the April 7 episode of Idaho Reports.