The American Civil Liberties Union warned lawmakers Jan. 17 that they risk paying hundreds of thousands more in legal fees if they back rules governing Capitol protests that so far have been challenged successfully in federal court by the free-speech activist group.
A U.S. District Court judge in Boise ruled last year these rally limits — crafted in the wake of the 2011-2012 “Occupy Boise” protests near the Capitol — violate the U.S. Constitution’s 1st Amendment free-speech protections.
Now, the state Department of Administration wants lawmakers to finalize those same rules, anyway, to clear the way for the agency to appeal what its leaders are calling a flawed decision.
At a hearing Jan. 17, ACLU of Idaho attorney Richard Eppink said he has already calculated $100,000 in fees Idaho taxpayers may eventually have to shoulder, if his side ultimately prevails. If lawmakers approve the rules and plow ahead with an appeal of uncertain duration, that figure could escalate rapidly, Eppink said.
“It could double in the course of an appeal,” Eppink told members of the House State Affairs Committee.
The Senate and House are mulling what to do: Direct the Department of Administration to start over with the disputed rules, or approve the existing ones in order to proceed with an appeal of U.S. District Judge B. Lynn Winmill’s decision on Nov. 4.
The Senate plans to take up the issue again on Jan. 20.
In his 39-page filing in November, Winmill decided the Department of Administration’s seven-day limit on protests ran afoul of free-speech protections.
Furthermore, he said, letting Administration director Teresa Luna waive regulations for so-called “state events” and use its own discretion to charge some groups to use Capitol grounds might invite discrimination against groups or messages Idaho officials didn’t like. Winmill also decided the agency’s effort to indemnify Idaho from liability in the event of injuries or other issues during events wasn’t “narrowly tailored to the government interests.”
The rules are currently only temporary and require lawmakers’ OK before they are finalized, what Luna called a necessary step before her agency’s appeal of Winmill’s ruling could proceed.
Not only is she confident her side will prevail, but she also contends the agency has done everything to meet the ACLU’s demands: Held public hearings, requested comment and used mediation. In the end, she said, it’s required by law to draft regulations governing how people assemble at the Capitol.
“We’re comfortable with the rules as written,” she said. “We think they’re broad enough for the use of the public, and yet give us the ability to manage the properties.”
Activists who participated in the Occupy Boise rallies of two years ago counter that the state of Idaho’s record on the matter suggests that it will lose yet again.
For instance, a first attempt to boot protesters in 2012 by the Legislature and Gov. C.L. “Butch” Otter was largely rejected by Winmill as unconstitutional.
Last session, lawmakers ditched the alternative crafted by Luna’s agency seeking to limit hours and locations of protests at the Capitol, calling it too extreme.
Winmill’s decision last year on agency’s latest rule-making effort only serves to underscore that it’s still going too far in trying to regulate speech around the Capitol, activist Shavone Hasse said.
“I think it’s pretty silly that Ms. Luna is here before you, asking you to codify provisions that have already been ruled unconstitutional by a judge who knows his law,” Hasse told members of the State Affairs Committee.