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.


Ron Nate on the differences in Dist. 34 representation

Earlier this week, we sat down with Rep. Ron Nate to discuss his role in the session.

After our conversation, we started talking about the differences between his approach and the approach of his District 34 seatmates, Rep. Dell Raybould and Sen. Brent Hill, with whom he’s had conflicts in the past. Here’s his response.

For more with our conversation with Nate, watch the March 31st episode of Idaho Reports. Idaho Reports airs Fridays at 8 pm on Idaho Public Television, and is also available online at



Faith, the constitution, and dead children

By Melissa Davlin, Idaho Reports

We’ve looked at Idaho’s faith healing exemption in both civil and criminal laws since 2014. We’ve done hours of interviews, and we waited for the right time to put out a story. And frankly, we don’t know if this is the right time. There probably isn’t a right time. Meanwhile, other media outlets have done a great job of exploring the controversy. Much of the coverage and discussion has been emotional, and understandably so; We’re discussing children’s deaths and people’s religious beliefs.

But there’s some important legal analysis that’s been left out of the conversation, even with the extensive media coverage, that we wanted to bring up.

Proponents of getting rid of the exemption have asked why it’s so difficult to address this issue, but in a 2014 interview, Monica Hopkins, then-ACLU of Idaho executive director, explained the tension.

“In many cases we have looked at religious liberty and protecting religious liberty and there is a natural tension that comes into play when we’re talking about policy and protecting religious liberty,” she said. “I think that tension is something that our forefathers thought about when they authored the constitution and the bill of rights.”

Finding those boundaries between a parent’s religious liberty, the child’s right to life, and the public good has always been intimidating. And it’s a fascinating philosophical discussion.

But beyond philosophy, there are the medical realities of faith healing.

Loving families, painful deaths

Wood River Valley pediatrician Dr. Barton Adrian, who looked into faith-healing related deaths in Idaho, puts one of many instances into stark terms.

“The kids who die of pneumonia basically suffocate,” he said. “You can see it from across the room. As your lungs get stiffer and full of more junk, you compensate by breathing faster so the kid would have been (gasping).”

But it’s more than just pneumonia. We’ve reviewed dozens of autopsy reports that paint a disturbing picture of children’s final moments of life. Children who died of untreated diabetes, who were severely dehydrated and hyperventilating in their last conscious moments. Children who had bed sores and pus draining from infections. Children who had unimaginable bone pain from untreated leukemia.

These weren’t easy or peaceful deaths. Those children suffered.

We’ve talked with members of the Followers of Christ multiple times, and while they didn’t want to be on camera or on the records, I can say they do genuinely love their children, they genuinely love God, they genuinely believe in their religion. But none of this love or faith will change the fact that children have died painful, preventable, 18th century deaths.

And now here’s the legal side.

Intervention and punishment

First, the distinction between criminal and civil law. The legislature this year debated a change to the civil side of the law; Specifically, when and how judges in Idaho can intervene and order medical treatment while a sick child is still alive, even if the parents use faith healing as a treatment. That bill failed on the Senate floor on an 11-24 vote, largely because many Republicans felt the proposal went too far and allowed the government to infringe on a parent’s rights and religious liberties.

Here’s the thing about that: Judges already have the ability to intervene. And they often do, when they know about a sick child, even when those families don’t believe in medical intervention.

Most of the public debate around faith healing exemptions has focused on the criminal side of the law — rather, whether prosecutors should be able to charge parents who decline to seek medical treatment for religious reasons, resulting in serious injury or death to their child.

In other words, the debate is whether those parents can be punished if or when the child dies.

On the criminal side, the law already prohibits actions, like physical abuse, in the name of religion.

One difference here, said Canyon County Prosecutor Bryan Taylor in a 2015 interview with Idaho Reports, is that faith healing involves inaction.

“If a parent is causing and doing the act that places the child into this particular situation, then more likely than not, it’s at least reviewable and the faith healing exemption may not apply,” Taylor said. “The inaction would be really more focused around not providing the medical treatment for whatever reason.”

A constitutional question

The US constitution raises some questions about the statute.

While you’ve heard about freedom of religion, the First Amendment is more complex than that. Freedom of religion means that while you have the freedom to believe whatever you want, the government cannot establish a state religion, and government cannot investigate your religious views.

And the government also can’t prefer one religion over another — something University of Idaho law professor Shaakirrah Sanders says may be happening with this law.

There aren’t many religions that decline to accept any form of medical treatment, she said. This is a law that arguably benefits a very small group of people.

On the flip side, the legislature is perfectly OK with limiting other aspects of religious practices, regardless of how sincere those practitioners are. Polygamy and bigamy come to mind.

When it comes to exemptions like this, there is no other equivalent in Idaho law. There is no other religious practice in Idaho that gets an automatic, built-in defense for something that could trigger an investigation in any other case.

Then there are the courts.

While there isn’t Idaho criminal case law on religious freedom as it pertains to medical treatment and neglect, there are cases from other states. One civil case in particular made it to the U.S. Supreme Court, in which a deceased boy’s father sued his ex-wife, the boy’s mother, after she declined to seek treatment for the child and instead prayed for his untreated diabetes. The Supreme Court upheld a state appeals court decision that awarded the father $1.5 million in damages.

Notably, the court said “Although one is free to believe what one will, religious freedom ends when one’s conduct offends the law by, for example, endangering a child’s life.”

Remember, that was a civil law decision.

So how about criminal case law? First, let’s look at Employment Division v Smith, a 1990 decision by the late Justice Antonin Scalia about faith in general, in which a man made the claim that he should be exempted from laws against smoking peyote because of his religion. The court disagreed.

“So from that case comes the rule that when it comes to laws and criminal laws that apply to everybody else, the First Amendment Free Exercise Clause does not demand any type of religious exemption,” Sanders said.

In other words, the Supreme Court ruled those First Amendment religious protections don’t apply to criminal law.

There’s also the Idaho Constitution, Article I, Section 4, which guarantees religious liberty. “The exercise and enjoyment of religious faith and worship shall forever be guaranteed.” We know that part. But then there’s the next few lines. While they mostly deal with polygamy, there’s this key part: “But the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations… inconsistent with morality or the peace or safety of the state, not to permit any person, organization or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime.”

In any other circumstance, not seeking medical care for your injured or deathly ill child could be considered a crime.

In 1993 Attorney General Larry EchoHawk’s office issued an opinion on this very question, saying “The drafters of the Idaho Constitution recognized the importance of assuring that although there should be no limit to an individual’s rights to a religious belief, there were boundaries on an individual’s right to religious practices.”

The opinion also cited Prince vs Massachusetts, a 1944 Supreme Court case which says, quote, “The family itself is not beyond regulation, in the public interest, as against a claim of religious liberty. And neither the rights of religion not the rights of parenthood are beyond limitation; the right to practice religion freely does not include the right to expose the community or the child to communicable diseases or the latter to ill health or death.”

A possible alternative

That brings us all the way back to faith healing, and whether the First Amendment or the Idaho Constitution protects the actions the Followers of Christ are performing, or not performing, in accordance with their religion.

Taylor said he’s uncomfortable with the current exemption; As he and other prosecutors read the statute, it puts the immediate kibosh on investigations.

“I think it needs to be revisited, reexamined,” he said. “Is it truly striking the balance? Is it truly giving us the ability to protect the kids in our community? And right now, I don’t think it does.”

This legislature has made it clear they’re not touching the criminal side of this law, that they don’t want parents to be prosecuted for inactions stemming from their faith, regardless of how many children have died.

The judicial branch can’t infringe on anyone’s beliefs. But it does have the ability to interpret the law differently and change the way it’s applied. And it has a different set of obligations.

“I could see some type of litigation brought on behalf of a child who may or may not have been neglected or abused where a parent was successfully able to raise this exemption now,” Sanders said. “That’s a little bit more difficult scenario because the exemption generally applies after there’s been a death. But I could also see organizations who see this law as wrong sort of bringing a court claim on behalf of the children of Idaho saying hey these kids have a right to life and this law is essentially negates this right to life or improperly places these parents’ religious beliefs or their right to be a parent over their child’s right to life.”

But finding the right organization to sue might be difficult, as the plaintiffs must prove harm. An organization that sues on the behalf of a deceased child would probably have difficult time showing how the death directly harmed them. A dead child can’t sue. The parents, who had custody of the child, likely wouldn’t sue, as they’re the ones who declined seek treatment in the first place. A child that is seriously injured but survives to adulthood would likely have a hard time suing if those injuries resulted in debilitating developmental injuries. There are people who have left the faith healing community, claim harm to themselves, and want to see the law changed, but for whatever reason, have not yet pursued litigation. Instead, the former church members we’ve spoken to have chosen to pursue legislative changes, or no public action at all.

And there’s the question of whether suing would affect the criminal side of the law in the first place.

The state, however, has a compelling interest in keeping a child alive, and could easily show harm. And that’s a potential avenue for answering the question of where that line between free exercise of religion ends and the individual liberties of a child begin.

In other words, if the legislature doesn’t change this, the right plaintiff might. For example, a county prosecutor could attempt to prosecute the presumably unprosecutable, thereby challenging the statute. That could give us the answer the legislature would not.



Seth Ogilvie contributed to this report.


Idaho Reports web extras: Extended education interviews

There’s a whole lot of news this week, and we ran out of time on the show.

But our interviewees Rep. Sally Toone, Sen. Dean Mortimer, and Rep. Julie VanOrden all had interesting things to say. If you’re interested, here are the extended interviews.

Rep. Sally Toone, D-Gooding, on her teacher’s perspective in the legislature:


Sen. Dean Mortimer, R-Idaho Falls, on science standards, school funding, and teacher insurance:


Rep. Julie VanOrden, R-Pingree, on science standards, rural schools, and more:


Preview of an insurrection

By Melissa Davlin, Idaho Reports


It’s 2013 all over again.

In a Thursday interview with Idaho Reports, Senate Education Committee chairman Dean Mortimer said at this time, he won’t rule out voting against the public education budget over an insurance funding dispute.

“If I were voting today on that specific portion of the K-12 budget, I would be voting against it,” Mortimer said.

Mortimer is also a member of the legislature’s joint budget committee. On Monday, the committee voted against a $15.2 million line item to address rising health care premiums, opting instead to put nearly $16 million in discretionary funding. That appropriation is coupled with intent language directing school districts to spend the money on health care costs. (Clark Corbin of Idaho Education News has a run-down of the details and debate.)

Does this debate sound familiar? In 2013, Mortimer helped lead an insurrection on the Senate floor that ultimately killed the public education budget. The issue: Intent language directing how money should be spent.

Mortimer said on Thursday he’s not sure if he has the backing of the majority of the Senate, as he did in 2013. But if Monday’s debate offers any clues, it might be close: Of the six JFAC members who supported Mortimer’s plan, all were senators. (Read more at Betsy Russell’s Eye on Boise blog.)

We’ll have much more with Sen. Mortimer on our Friday show. In the meantime, here’s a brief clip of the conversation.


Are some Land Board transactions unconstitutional? A quick look at a complex issue

As with any issue involving the Idaho Land Board and endowment land, nothing is ever easy to understand or explain.

A public records request by the Idaho Conservation League revealed hundreds of state land transactions dating back to the 1890s that appear to violate an obscure provision of Idaho constitution relating to how much state land can be sold off to one individual or business. Though the Idaho Department of Lands is ordering an audit of the records, director Tom Schultz says the land transactions are more complicated than the ICL’s database indicates.

Here’s the jist: The state of Idaho regularly auctions off and sells endowment land. The Idaho constitution limits individuals and corporations to purchasing 320 acres of public school land and 160 acres of University of Idaho land.

Since statehood, the Land Board — composed of the governor, attorney general, secretary of state, state superintendent, and controller — may have allowed individuals or corporation to purchase far more than the 320 acres. In total, more than 200,000 acres of land sold by the state were sold to people or entities that had surpassed the 320 cap, said Jonathan Oppenheimer, government affairs director for the ICL. What’s more, the primary beneficiaries were some of Idaho’s most politically connected families and corporations.

Two important notes: Some of these violations occurred more than one hundred years ago, meaning the current land board, chaired by Gov. Butch Otter, isn’t responsible for the vast majority of those issues. (The most recent questionable transaction, which was initiated in 1975, was finalized in 2015. Today’s board hasn’t initiated any questionable transactions, according to the documents.)

Also, though many prominent ranching families, like the Littles, the Newcombs, the Bracketts, the Ricks, and the Bedkes, appear in the database, no current state elected officials or lawmakers appear to be listed in the transactions. (And, as Lt. Gov. Brad Little quipped to Idaho Reports, the statute of limitations on his grandfather’s land purchases passed long ago.)

But the database doesn’t tell the whole story.

“The Supreme Court said the state’s obligation to track this issue is to the person they had the initial contract with,” Schultz said. “Who that person may have sold that contract to or what was done subsequent to them getting the deed, was not the obligation of the state to track that in perpetuity.”

How might someone’s name legitimately appear on multiple records exceeding 320 acres? Some transactions took place over 30 or more years. If a David Smith bought 320 acres, then bought an additional 320 acres from John Doe in the middle of his contract with the state, David Smith’s name would show up on the final deed. That would be a legal transaction.

In other cases, multiple family members may all buy separate parcels of land. That was the case with Little’s parents, he said. His mother bought 320 acres and his father bought 320 acres.

There are other possibilities, including human error. Many of these records have been transcribed multiple times, decades before we could look at this on Excel spreadsheets.

But Oppenheimer said he’s concerned that there’s nothing stopping the Land Board from violating the constitution in the future. Because some in state government are asking for transfer of federal lands to state control, the discussion has a new urgency, Oppenheimer said.

“Even if something is written in the constitution, if no one is watching, it might not matter,” Oppenheimer said.

Idaho Reports will have much more on this on our Feb. 24, 2017 episode. In the meantime, here’s a clip of Schultz explaining how complex some of these Land Board issues are:



Six Idaho officials on their vision for Idaho

In a year of uncertainty — about the economy, about floods and fires, about how changes in DC will affect existing policy, lawmakers have two choices: Wait and see, or forge ahead and shape a new path.

We sat down with six Idaho officials to see what their visions are for Idaho’s future. We asked them to share their best case scenarios, worst case scenarios, and what they think will actually happen.

The result: Six interesting conversations with wide-ranging ideas, including improving the economy, more state control, making education more flexible for local needs, and artificial intelligence.

We didn’t have enough time in the show to put everything in, but we wanted to make the conversations available here. For more, including the pundits’ discussion on where leadership is coming from in Idaho, watch the Feb. 10 episode of Idaho Reports, available at