Idaho Election Results

Raul Labrador won the Republican nomination for U.S. House seat 1.  This is good news--but it is still an uphill struggle.  The incumbent, Walt Minnick (DINO-ID), is personally very wealthy (he is a Democrat, after all) and had lots of funding from Portland and Seattle ecocrazies the last time around.  We're going to have to work to get Labrador elected.

I expected this would be the case, but Marla Lawson failed to unseat State Senator Tim Corder in my district.  She did well, however: 41.7% of the vote, which is five points better than I managed against Corder in 2008.  Perhaps because she has lived here a long time, perhaps because there is actually something of a Republican Party organization in this county now (although they seem to prefer not to have anything to do with me), perhaps because the country is moving to the right again.  Realistically, I think the only way that a liberal Republican like Corder can be defeated in the primary would be by an LDS, Elmore County resident.

District 22 State Senate Republican Primary

It's jousting against windmills, but I am definitely going to vote for Marla Lawson for state senate. I couldn't unseat Tim Corder in the 2008 primary, and the same issues will doubtless prevent Lawson from doing so this time around. But we do need to remind Corder that we would like a pro-gun Republican in the seat, and not one who sounds like he should be representing the Boise North End as a Democrat.

The Boise County Clerk Race

Ordinarily, I tend not to worry too much about a job like County Clerk.  Ordinarily, this isn't a job where there are challengers.  But this time around, there's a positive death match under way!  This May 22, 2010 Idaho Statesman article describes it well:

Two of the three Republicans candidates for the four-year job, which pays $44,200 a year, know each other well.

Incumbent Boise County Clerk Constance "Conni" Swearingen is the former boss of Michelle Armfield, who worked in the clerk's office for six years until she was fired in January.

"I terminated her for cause," Swearingen said.

Armfield says she was wrongfully terminated, and she's filed a lawsuit against Swearingen and Boise County. But she's also running for Swearingen's position.

Read more: http://www.idahostatesman.com/2010/05/22/1202309/boise-county-clerk-race-is-contentious.html#ixzz0olPwreUC

I really don't know who is right in the Armfield vs. Swearingen battle, but it was smart politics of Mary Prisco to put a copy of Armfield's complaint on her campaign webpage. Prisco certainly has the educational and private sector experience qualifications for the position.

The Ward-Labrador Race: Dead Heat

From the May 22, 2010 Spokane Spokesman-Review:

The Idaho Statesman and KBOI TV Channel 2 have commissioned a statewide poll by Mason-Dixon Polling and Research, a national polling company based in Washington, D.C., in advance of Tuesday’s primary election, and the results are darn interesting. In the 1st District congressional race, among likely voters in Idaho’s Republican primary in the district, the poll found 31 percent favoring Vaughn Ward, 28 percent for Raul Labrador, 37 percent undecided and 4 percent for Harley Brown. That’s a statistical dead heat - the difference between Ward and Labrador falls within the poll’s margin of error. You can read the Statesman’s full coverage of the poll here.

For reasons that I explained here, I think Labrador would be a more effective Congresscritter than Ward, and so far, Ward's campaign comedy of errors suggests that Labrador is going to be more effective running against Walt Minnick (DINO-ID).  If Ward gets the nomination, I'll get a Ward yard sign, and perhaps even contribute some money to the campaign.  But I think Labrador is going to be more effective.

Governor's Race

I have no wild enthusiasm for Governor Otter, who is running for re-election in the Republican primary.  But the news coverage that I have seen suggests that he has a sincere desire to make the state government operate within its limits.  The battle between Otter and the legislature last year over gas tax and road improvements suggests that Otter is part of the wing of the Republican Party that recognizes that government can perform a legitimately positive function in growing the economy by making road improvements.  I wouldn't want this to go too far--we don't need four lane highways in every corner of the state--but he represents a useful counterbalance to those members of the legislature who don't seem to see the economic growth advantages of building transportation infrastructure.

Otter's most serious opponent is Rex Rammel.  As I mentioned some months back:

I've been aware of a politician named Rex Rammel who is running for governor against Otter, but I didn't have much of an impression, positive or negative. Purportedly he's a conservative of some sort. Listening to him interviewed by Nate Shelman on KBOI AM 670 this evening Rammel certainly made an impression on me alright: and not a good one.

Rammel's position of how to deal with the budget shortfall is to eliminate the personal and corporate income taxes and increase sales tax rates as a way to create jobs. While I'm no fan of income taxes because they encourage a variety of manipulative and economical inefficient tax shelters, it is generally very high marginal rates that create this sort of idiocy. Federal income tax rates can be a real problem, because the marginal rates are high enough to make people do dumb things. But Idaho personal income tax rates (like most states) are pretty low. It is hard to imagine that our 8% state income rate is making much of a difference in how anyone in this state decides what investments to make, how many people to hire, what factories to build.

Even more absurd: because state income taxes are deductible on your Form 1040, Schedule A, those Idahoans in the top marginal state income tax bracket (as I was until last year) were reducing their federal income tax by 35-40% of their highest marginal state income tax rate. Eliminating the Idaho state income tax would put perhaps $5000 in the pocket of the top 5% of the state's income earners--but probably $2000-$2300 of it would end up paid as federal income tax, instead. The gain for the taxpayers, even for the high end Idaho taxpayers, isn't as impressive as it first sounds.

The notion that reducing personal and corporate state income taxes is going to be a big win for creating new jobs here, or moving existing jobs from other states, is really hare-brained. Yes, they do probably impair job growth a bit--but it is a minor factor when you consider how low the rates are. (At the federal level, it is a stronger argument, where the marginal rates are much higher.) In a thriving economy, there might be a stronger argument for eliminating these taxes to encourage growth--but the only thing growing in Idaho (and much of the rest of the country), is discouragement about jobs.

...

Then Rammel proposed that the loss of about 1.25 billion dollars from our budget by eliminating these two taxes could be handled by turning all the public schools back to the local governments, and wiping out those parts of the state board of education handling K-12. Again, I am skeptical of the value of much of the centralized state bureaucracy, but I am very skeptical that's this is where most of the money being spent on public education in this state is going.

There's a case for pretty radical transformation of our education system, perhaps using vouchers to create more competition for schools. I just don't get the impression that Rammel has given much thought to what he is talking about.

It also appears that Otter has the race in the bag, anyway. The May 22, 2010 Spokane Spokesman-Review reports on a statewide poll:

In the governor’s race, the poll showed Gov. Butch Otter with 60 percent, 25 percent undecided, and none of the five GOP challengers rising beyond single digits, with Rex Rammell highest at 6 percent followed by Sharon Ullman at 4 percent.

Reasons To Vote Against John Bradbury For Idaho Supreme Court

I'm not sure that I have a strong reason yet to vote for Justice Roger Burdick, who is seeking confirmation for another term on the Idaho Supreme Court.  But I do have some reasons to vote against Judge John Bradbury, who is trying for that seat.  From the May 23, 2010 Magic Valley Times-News:

Female judges

Bradbury said that if there were fewer retirements and more elections, the court system would have more female judges. He points to the Legislature, where female legislators are more commonplace compared to the judiciary.

“Only one woman out of 22 in the last three years has been appointed,” he said. “… You can’t look at these statistics and have many women lawyers want to go through the ordeal when they see what the results have been. I think the first thing that you’ve got to do is let them know that the system is opened up.”

Burdick disagrees, saying a survey in 2008 of every lawyer and judge has results showing that women aren’t attracted to judge positions because contested elections and lower salaries. Burdick also points out that the Judicial Council, not the Idaho Supreme Court, selects two to four candidates to the governor to pick for appointments.

I do agree with Bradley that the practice of judges retiring before their term is up is not good. The reason that this is done is so that the governor can appoint someone to the position--who then has the advantage of incumbency. A couple of years back, one of the Idaho Supreme Court justices actually said directly that this is a good thing because the voters are knowledgeable enough to make good decisions on stuff like this. But Bradbury's argument that it would increase the number of women on the bench is exactly the kind of quota-driven thinking that ignores individuals, and glorifies identity politics.

I'm not impressed with this discussion from Bradbury v. Idaho Judicial Council (Ida. 2009):

Petitioner was elected in 2002 for a district judge position with resident chambers in Idaho County. He took office in January 2003. Idaho Code section 1-809 requires that district judges actually reside at the place designated as their resident chambers. On December 20, 2002, Petitioner purchased a house in Grangeville, Idaho County, and on October 16, 2003, he changed his voter registration to Idaho County.

On May 2, 2006, the Council notified Petitioner that it was conducting an inquiry into whether he was actually residing in Idaho County. Petitioner responded by letter on May 4, 2006, stating that he owned a fully furnished home in Grangeville, that he had a homeowner's exemption on that home, and that he was registered to vote and did vote in Idaho County. He also stated that he had a fully furnished home in Lewiston and that the home at which he stayed depended upon where his work was. By letter dated April 17, 2007, the Council informed Petitioner that, based upon his response, the Council was closing the file. The Council noted in its subsequent findings that Petitioner had not informed the Council "that he spent practically none of his nights in Grangeville, or, that in the prior six (6) months he had spent fewer than ten (10) evenings in Grangeville."

On September 12, 2007, the Council sent Petitioner a letter stating that it had received additional information and was re-opening the inquiry into whether he was actually residing in Idaho County. On October 31, 2007, Robert G. Hamlin, the Executive Director of the Council, interviewed Petitioner regarding the issue of whether he actually resided in Idaho County. That interview was recorded and transcribed by a court reporter. During that interview, Petitioner stated, "And my Constitutional duty is to do my job, and I think it trumps whatever the statutory obligation might be." He continued, "And I want to do my job. And I want to comply with the law. But I can't do both, as much as I want to." When asked, "So do you—you spend most of your time in Lewiston?" Petitioner answered, "Yeah, I do." Hamlin followed up by asking, "How many days—let me rephrase that, how many evenings a week do you spend in Grangeville?" Petitioner answered, "Practically none." He said that he got most of his personal mail in Lewiston and had registered his vehicles in Nez Perce County. He told Hamlin he spent most of his weekends at his ranch in Clearwater County where he is building a house. He also stated, "I can tell you that I would live in Grangeville if I could do my work and live in Grangeville."

Bradbury sounds more and more like one of those, "Why should I have to obey the law?" sorts that so dominate Democratic Party politics.  I think I will be voting to confirm Burdick.

Why I Am Planning To Vote For Raul Labrador For Congress

Why I Am Planning To Vote For Raul Labrador For Congress

We had a bond election today in the Horseshoe Bend school district.  Next Tuesday is the primary election.  (If there were any sanity, both elections would have been held on the same day--but at least the bond election was pitifully cheaply run.)

I had originally planned to vote for Vaughn Ward in the Republican primary for U.S. House seat 1.  I saw a swarm of news stories in the Idaho Statesman that were generally so petty as to make me more inclined to vote for Ward.  Dan Popkey, the Idaho Statesman's political columnist, made a big deal of Ward being late on his property taxes.  Even Rep. Walt Minnick (DINO-ID) pointed out how easy it is to miss such deadlines.  It was pretty clear that Popkey was just trying to weaken what was considered the stronger Republican candidate.

But since then, Ward has managed to demonstrate that he is not ready for prime time.  He ran an ad with him in uniform.  That's a complete no-no.  If Ward was an enlisted man, I could be charitable and assume that he didn't know, or forgot.  But he's an officer (Major).  He ought to know better.

Then Ward's campaign was caught plagiarizing stuff for his campaign from other Republican campaigns around the country.  Okay, mistakes happen; busy campaign staff may not understand that if you are going to reuse someone else's stuff, you should attribute it.  (Unless, of course, you are Sen. Joe Biden, now V.P. Joe Biden.)  But then they tried again--and the same problem!

Now, if conservative Republicans around the country had been smart, they would have organized a common platform, and pledged themselves to it--rather like 1994's Contract With America (a brilliant idea from Newt Gingrich).  Then everyone could have signed onto it, creating a powerful collection of campaign materials that would have strengthened all of them--and would have been far less expensive than everyone inventing the wheel individually.  This would have been very powerful--but there's a reason that Republicans are called the Stupid Party.  (As distinguished from their enemies, the Sneaky, Cunning, Shark-like Corrupt Party.)

Again, all these failings might not be a sign of Vaughn Ward's personal failings--but it does suggest that he can't manage his Congressional primary campaign.  That means he isn't going to do a particularly stellar job running the general election campaign, or running a Congressional office.

I'm planning to vote for Raul Labrador next Tuesday.  I'm hard pressed to see any major areas where Ward's positions are better than Labrador's.   Labrador has experience as a member of the Idaho legislature--which is a good stepping stone to the U.S. House.  That we have a strong supporter of stopping illegal immigration with an Hispanic name just sweetens the pot a bit, because it gives us a chance to watch messy brain explosions from Democrats on the coasts who simply refuse to believe that our concerns aren't racism.

Pia Varma for Congress

Pia Varma for Congress

This isn't really an endorsement, since I haven't spent much time investigating--but someone is working very hard (and successfully) to mix the MTV sensibilities that elected the Zero with libertarian/conservative policies in a very attractive package! Pia is the daughter of East Indian immigrants from Britain who apparently found its socialist ways too hard to handle, and came to America. If you live in Pennsylvania's First Congressional District--take a look!

Snowflakes in Hell had some nice things to say about her--essentially, she doesn't stand a chance, but wow, what an impressive effort! I'm glad to see someone making the effort.

I somewhat regret not making another attempt at unseating Tim Corder for Idaho State Senate, but realistically, there's no way for me to do that. I'm too busy teaching and working full-time, and Corder, being fairly liberal, is a good fit for district 22. Idaho has a largely undeserved reputation for being conservative, and Boise and Elmore Counties, very clearly are not conservative. I see that Marla Lawson in Lowman is challenging Corder in the Republican primary this time around, so Corder will have to justify his support for various liberal bills, but realistically, much of the population in this district doesn't much care what the government does, and those that do, tend to like Corder's RINOism.

Idaho's Budget

Idaho's Budget

Like many states, Idaho is having to confront the inevitable budget shortfall that comes from a declining national economy, reduced workers earning less income and paying less income tax, corporations earning less and paying less corporate income tax, and increases in costs for such things as unemployment insurance. It's never easy. Governor Otter managed to avoid cuts in education last year, but this year it doesn't look so encouraging.

I've been aware of a politician named Rex Rammel who is running for governor against Otter, but I didn't have much of an impression, positive or negative. Purportedly he's a conservative of some sort. Listening to him interviewed by Nate Shelman on KBOI AM 670 this evening Rammel certainly made an impression on me alright: and not a good one.

Rammel's position of how to deal with the budget shortfall is to eliminate the personal and corporate income taxes and increase sales tax rates as a way to create jobs. While I'm no fan of income taxes because they encourage a variety of manipulative and economical inefficient tax shelters, it is generally very high marginal rates that create this sort of idiocy. Federal income tax rates can be a real problem, because the marginal rates are high enough to make people do dumb things. But Idaho personal income tax rates (like most states) are pretty low. It is hard to imagine that our 8% state income rate is making much of a difference in how anyone in this state decides what investments to make, how many people to hire, what factories to build.

Even more absurd: because state income taxes are deductible on your Form 1040, Schedule A, those Idahoans in the top marginal state income tax bracket (as I was until last year) were reducing their federal income tax by 35-40% of their highest marginal state income tax rate. Eliminating the Idaho state income tax would put perhaps $5000 in the pocket of the top 5% of the state's income earners--but probably $2000-$2300 of it would end up paid as federal income tax, instead. The gain for the taxpayers, even for the high end Idaho taxpayers, isn't as impressive as it first sounds.

The notion that reducing personal and corporate state income taxes is going to be a big win for creating new jobs here, or moving existing jobs from other states, is really hare-brained. Yes, they do probably impair job growth a bit--but it is a minor factor when you consider how low the rates are. (At the federal level, it is a stronger argument, where the marginal rates are much higher.) In a thriving economy, there might be a stronger argument for eliminating these taxes to encourage growth--but the only thing growing in Idaho (and much of the rest of the country), is discouragement about jobs.

Increasing sales tax rates, while a pretty simple and economically efficient method of gathering revenues, is extraordinarily regressive--especially in a state where groceries are still subject to sales tax. I'm not a raving liberal bleeding heart, but people at the bottom of the economic scale are hardly in a position to pick up a bigger share of the state budget. Many of them are having trouble paying their rents and car payments.

Then Rammel proposed that the loss of about 1.25 billion dollars from our budget by eliminating these two taxes could be handled by turning all the public schools back to the local governments, and wiping out those parts of the state board of education handling K-12. Again, I am skeptical of the value of much of the centralized state bureaucracy, but I am very skeptical that's this is where most of the money being spent on public education in this state is going.

There's a case for pretty radical transformation of our education system, perhaps using vouchers to create more competition for schools. I just don't get the impression that Rammel has given much thought to what he is talking about.

New York Arrogance

New York Arrogance

I saw this story in the October 29, 2009 Idaho Statesman, and I still can't quite get over the arrogance of it:

BOISE, Idaho — A New York City resident plans a long-distance run as a Democrat for the Idaho U.S. Senate seat now held by Mike Crapo, a Republican.

William Bryk, who is 54, hasn't raised a nickel for the May 2010 primary.

The Spokesman-Review reported he also hasn't been to Idaho in his life, but says he was prompted to run because Crapo faced only a write-in challenger in 2004. Bryk says he didn't want to let that happen again in 2010.

Election law requires Idaho candidates to be residents of the state only by the day of the general election; Bryk says he'll move to Idaho if he wins the Democratic nomination.

How kind of him! He can find out that we don't have tails and horns before he lowers himself to being the Democratic nominee!

Idaho Budget Cutting

Idaho Budget Cutting

Sharon Fisher has an article at New West's blog about the painful process of budget cutting for Idaho state government:

If legislators are going to be cutting individual programmatic functions in other agencies, though, it’s going to be interesting to see how they do it. Currently, the Legislative Budget Book used by the Joint Finance-Appropriations Committee JFAC) uses an “incremental” way of describing the budget for the new fiscal year. In other words, it starts with the amount the agency received the previous year, then makes various adjustments to that figure to produce a “maintenance” figure—which would allow the agency to continue doing what it’s been doing—then adds new programs and requests.

In other words, the programs that have been approved in previous years aren’t listed in detail in the budget book, at least as it currently exists. So it’s not clear how members of JFAC would receive program-specific information in order to cut existing programs. Certainly the budget development manual provided by DFM to the agencies doesn’t look any different.

This is, as I understand it, how the federal government does budgeting as well--start with an assumption that every program is necessary, and at its current level, and then adjust accordingly. Now, if every governmental program was created for good reasons, and those reasons remain just as valid today as they did when it was created, this would be just fine.

But we all know that programs acquire a life of their own, and even when they no longer make sense--or at least, don't justify as big a slice of the pie as they used to--they survive. I gave two examples to my students last week: the strategic helium reserve (originally in support of our warfighting dirigible fleet) that persisted into the 1990s. The last I checked, this program was still consuming money in figuring out how to dispose of the assets and liabilities. The other was the program that required U.S. military bases in Germany to use anthracite coal from the U.S. for power generation, shipped in American bottoms. More than a decade after our bases stopped burning anthracite coal, at the request of the German government, we were still shipping it over--and then burying it on leased land.

It's a big project to sit down and revisit the decisions to create every program. But when a budget crisis arrives, maybe that's what they need to do. They may not get much else done in the meantime, but perhaps that a feature, not a bug.

The Idaho Constitution Gets More & More Curious

The Idaho Constitution Gets More & More Curious

Art. XIII, sec. 1 directs:

Bureau of immigration -- Commissioner. There shall be established a bureau of immigration, labor and statistics, which shall be under the charge of a commissioner of immigration, labor and statistics, who shall be appointed by the governor, by and with the consent of the senate. The commissioner shall hold his office for two years, and until his successor shall have been appointed and qualified, unless sooner removed. The commissioner shall collect information upon the subject of labor, its relation to capital, the hours of labor and the earnings of laboring men and women, and the means of promoting their material, social, intellectual and moral prosperity. The commissioner shall annually make a report in writing to the governor of the state of the information collected and collated by him, and containing such recommendations as he may deem calculated to promote the efficiency of the bureau.

Yet when I search Idaho government pages for information about this "Bureau of Immigration Commissioner," and search the Idaho Code, the only actual reference that I can find is in this report from the Division of Building Safety, which acknowledges that the Bureau of Immigration Labor and Statistics was created in 1899, and eliminated in 1919.

State constitutions tend to accumulate debris over time, as ideas of one era become unfashionable, or get struck down by the courts--but tend not to get removed, since this requires a vote of the people to amend the state constitution. I've read that the infamous "The Chinese" article XIX of the 1879 California Constitution wasn't actually removed until 1952, even though it had been unenforceable for a long time before that. If Idaho Const., Art. XIII, sec. 1 merely granted authority to the legislature to create such a bureau, and the governor to appoint such a commissioner, that would be one thing. But this seems to obligate both to do both. A general cleanup of the Idaho Constitution would seem like a good idea.

I'm pretty sure that Art. XIII, sec. 5 is also no longer enforced:

Aliens not to be employed on public work. No person, not a citizen of the United States, or who has not declared his intention to become such, shall be employed upon, or in connection with, any state or municipal works.

This is probably the more subtle Idaho version of the California Constitution's Art. XIX. It is pretty clearly contrary to the Fourteenth Amendment's equal protection clause, which has been repeatedly recognized to protect the rights of permanent residents.

Interesting Telephone Meeting With Rep. Minnick (D-ID)

Interesting Telephone Meeting With Rep. Minnick (D-ID)

A couple of nights ago, I received a phone call that let me join into a telephone town meeting with Rep. Minnick (D-ID) concerning health care. I was really quite impressed--if there were more Democrats like this, I wouldn't regard the Democrats quite so negatively. (Of course, on either coast, someone like this wouldn't stand a chance of winning the Democratic nomination for Congress.) He made it quite clear that he was not supportive of the so-called "public option," apparently because he can see that the goal of it is to destroy the private insurers. He was also quite supportive of looking for ways to increase competition in the health insurance market--although he was also arguing for regulations to prevent insurers from refusing or dropping coverage based on pre-existing conditions.

I guess what I found most encouraging is that Minnick was saying that rather than push for a health care reform bill that represent some Democratic views, that it would make more sense to push for reforms that enjoy broad, bipartisan support. But that wouldn't be the corrupt dirty package that Pelosi and real Democrats want, so I'm guessing that Minnick's not going to get his way.

A Friend Is Running For Boise City Council

A Friend Is Running For Boise City Council

Lucas Baumbach. I don't live in Boise, but some of you do! You might want to visit his campaign website, and see if you want to get involved.

Chris Pentico's Sentencing

Chris Pentico's Sentencing

I showed up at the courthouse--and found a sign on the second floor, where Judge Swain's courtroom is, announcing that the Chris Pentico sentencing had been moved to courtroom 504. I suspect that they moved the sentencing because of the anticipated crowd--and it was a crowd. There wasn't a seat free, and the aisles were filled with folding chairs and standing people. I noticed Dan Popkey of the Idaho Statesman present, taking notes.

Rep. Pete Nielsen (R-ID) testified in mitigation of the sentence. (Essentially, arguing why the sentence should be light.) One of the claims made by the prosecution was that the governor's staff had asked to have Pentico banned. Nielsen testified that when he first heard about this ban, he contacted both Captain Rogers, of the capitol security detail of the state police, and Clete Edmondsen of the governor's office. Rogers at first didn't know who gave the order, and Edmondsen claimed to know nothing of it. (I believe that Nielsen passed this word back to Pentico at some point, which would at least give Pentico reason to be unsure if he was banned or not.) Later, Captain Rogers got back to Nielsen, and told Nielsen that Edmondsen had ordered Pentico's ban.

Nielsen also testified that in the almost four years that he had known Pentico, through Elmore County Republican Party activities, and at the legislature, he had never known Pentico to be anything but honest and polite in his dealings with others. Nielsen also turned over a letter to the judge to this effect signed by a number of other members of the legislature. (And remember: one of the original reasons for banning Pentico was that he made members of the legislature "nervous.") I don't know how many other members signed that letter, but I don't get the impression that it was more than a couple.

The prosecutor claimed that the reason Pentico was banned was that had repeatedly harassed staff in the Board of Education offices, and requested that Pentico be given a $500 fine ($300 suspended), 90 days in jail (85 days suspended), and a no-contact order with the governor's office, Idaho department of education, and a couple of other branches of the government, for some significant period of time. (I don't have the period in my notes, but I think it might have been two years.)

Pentico's attorney, Derr, is pretty old--beginning to get the shakes associated with Parkinson's. His statement wasn't spectacularly well delivered, and at one point, he called a witness out of the crowd, Wayne Hoffman of the Idaho Freedom Foundation, who had apparently worked at the Board of Education during the time Pentico was supposedly harassing staff (although he was never arrested or ordered to leave the premises during that period). After a few words between them, Derr changed his mind. Derr should have talked to Hoffman first before calling him as a witness, I think.

Where Derr did best was point out that the statute prohibiting trespass requires you to be told to leave and not return--and when Officer Pattis claims that he told Pentico that there were places that he was not welcome, and was not to return, these were not places that he had been at that day, and was not at them at the time of notice. More importantly and more eloquently, Derr asked if any officer could tell any citizen they can only exercise their First Amendment rights in writing, or with a police escort to and from a government office? There's an obvious chilling effect when you have to give 48 hours notice to the police that you wish to deliver a complaint to a government official. (This was the circumstances under which Officer Pattis says he told Pentico that he could hand deliver complaints to the governor's office.)

Judge Swain argued that the statute under which Pentico was convicted is defective, in that it treats both public and private property the same, but that he was obligated to "apply the laws to the facts." He also acknowledged that there was a First Amendment conflict in a situation like this--which suggests to me that he didn't read the Korsen decision as carefully (or perhaps as broadly) as I did. He did acknowledge that Pentico's conduct, assuming all the facts that he obviously believed to convict him, constituted a de minimis violation of the statute. Because of "the unusual facts of the case," such as Pentico's community standing, lack of criminal history, indeed, lack of any evidence of dangerousness, "no jail time" "no fine" "no court costs" and "no no-contact order." All of this was a withheld judgment for thirty days. If Pentico can stay out of trouble for that period of time, the conviction disappears.

I don't know if Judge Swain was influenced by the large crowd of well behaved people that showed up to make sure that justice was done. In one sense, I would hope that Swain was not influenced. Justice shouldn't be determined by popular sentiment. On the other hand, if there's something fishy about a case, and a defendant has this much of the public concerned about it, maybe it should influence a judge to rethink his position.

Clearly, Judge Swain was putting it back on the legislature to fix what he acknowledged was a defective statute. I approached Rep. Nielsen after adjournment, and indicated that he needs to introduce a bill next session to fix this. He agreed, and asked me to suggest some language. I told him I would think about it for a few days, and do so.

Pretty clearly, there are circumstances where it is appropriate to exclude someone from governmental offices. But those circumstances need to be pretty extreme--not just to make government officials and their employees comfortable. I would suggest that requiring a judge to issue a restraining order should be the first step, or perhaps the second step--something that provides for due process, and an impartial observer to decide whether a citizen's legitimate reason to enter public parts of government offices is exceeded by the legitimate needs of government to operate without intimidation or physical danger. Any ideas that you have: let me know.

UPDATE: Dan Popkey's article about the sentencing hearing was mostly correct, but what was left out is no surprise, consider Popkey's political leanings. The comments by the liberals that dominate the Idaho Statesman's comment board are unsurprising: lots of personal insults to Pentico, and general contempt for the First Amendment right of free speech and right to petition government officials for redress of grievances. If you aren't engaged in nude dancing, Idaho liberals aren't big on those protections.

Chris Pentico & The First Amendment

Chris Pentico & The First Amendment

I mentioned several weeks ago that an acquaintance had been convicted of trespassing for dropping off a letter complaining of what he considers unlawful activity by Boise State University with respect to funding of student clubs. I now have the transcripts of the trial and pre-trial hearings. The trial itself is astonishingly uninteresting, except for the March 25, 2008 incident in which Officer Pattis told Pentico that he was not welcome in state government buildings. If you believe Pattis, he was orally warned that he would be arrested for trespassing. If you believe Pentico, he was told that he wasn't welcome. There was no written warning to Pentico. From the cross-examination by Pentico's attorney of Officer Pattis, on p. 25:

BY MR. DERR:
Q You did not provide any written orders to Mr. Pentico on March 25, did you?
A No, sir. I did not.
Q Nor any other statements, except what you’ve testified to, I mean as far as trespassing and coming back, not welcome?
A Not to -- not that I remember, sir.

In a criminal case (as this is), there's a requirement for a guilt beyond a reasonable doubt--and whether Mr. Pentico was formally warned that he would subject to arrest if he returned to the state office buildings seems to be Officer Pattis's word versus Chris Pentico's word. While there was a recording of Pentico's arrest on April 2--the only recording of what happened March 25, when Pattis claims to have to told Pentico that he was subject to arrest if he returned, seems to have some problems. From p. 32 of the trial transcript, is this exchange between the prosecutor (Wallace) the defense attorney (Derr), and Judge Swain:

MR. DERR: Well I’m looking for a tape, a video, that I wanted to show of 3/25.

THE COURT: Does state have it?

MS. WALLACE: Well, Your Honor, we previously disclosed a tape from 3/25. There’s no audio on it and it’s an encrypted CD that doesn’t play, and that’s previously been disclosed. Mr. Derr called me about it yesterday and mentioned that it doesn’t play well, and it just doesn’t play well. That’s what we’ve disclosed and we gave what we had.

THE COURT: Alright. Well there we go. Ball’s in your court, Mr. Derr.

(Off-record colloquy of defendant’s counsel)

MR. DERR: I don’t know how to run this machine.

THE COURT: Well Mr. Derr, I’ll tell you what I tell all the young lawyers that come before me to practice. Presentation of evidence is the responsibility of the proponent of the evidence. We’ll give you a little time to figure it out and then we’ll -- do you if it -- will it even play?

It appears from the rest of the transcript that Derr never got it to play--and if this audio confirmed Officer Pattis's claim about the March 25th conversation, you would have expected the prosecution to have played it, because it would have demonstrated that Pentico had been warned not to return, at risk of arrest. Whether Pentico knowingly violated the law hinges entirely on whether he was warned that he was risking arrest for a crime if he returned--and all the state is Pattis's word vs. Pentico's word.

More troubling is that the judge had ruled in pretrial motions that no First Amendment challenge to the charge would be allowed. From the April 20 pretrial motion, pp. 4-6:

THE COURT: Well I’m concerned about the late disclosure, but I’m also concerned about the proffered testimony in your motion which states that Mr. Parker will be a character witness, and knows among other things, of his valuable and extensive activities in First Amendment matters, which is specifically not relevant to this trial, Mr. Derr. That’s a legal question, and I’ve already ruled. We’re not going to have testimony about Mr. Pentico’s actions were justified under the First Amendment.

MR. DERR: I see. And of course, the Court understands we’ve argued that before. We think that’s the basic element of this case.

THE COURT: Well Mr. Derr, I’m very concerned. You don’t have to agree with my ruling --

MR. DERR: I know.

THE COURT: -- but you do have to follow it. You can appeal, but we’re not going to have testimony about the First Amendment in this trial. There are only two issues here. One is whether Mr. Pentico was properly advised that he could not be present on certain specified locations, and number two, was he present, physically, on certain specified locations. The state is not going to be allowed to present testimony about why he was excluded. On the other hand, Mr. Pentico is not going to be allowed to present testimony regarding the content of his communication or assert that it’s protected by the First Amendment. That’s a legal question and I’ve ruled. I don’t see that based on your motion, Mr. Parker has character testimony of a pertinent nature to the trial, that in combination with the late disclosure, I’m going to grant the state’s objection. Mr. Parker will not be allowed to testify.

And yet being able to petition for redress of grievances is a fundamental human right, recognized by the First Amendment. The testimony of the Claudia Nally, under direct examination by the prosecutor, is pretty clear about Pentico's behavior at the time he dropped off the letter on April 2, pp. 27-29 of the trial transcript:

Q And do you recall -- well, you must get to know people pretty well working in that office. People coming and going. Are you familiar with a man by the name of Christopher Pentico?

A Yes. I am.

Q And how do you know that person?

A He has been in the office, to the best of my recollection, five or six different times, not necessarily at this location, but at the Capitol building also.

Q Okay. And back in -- in March and April of 2008, did you receive information that he wasn’t welcome anymore?

A I did, actually.

Q And after you received that information, did you see him again?

A I did, actually. He came in on April 2nd and dropped off a letter.

Q Okay. And when you say April 2nd, was that April 2nd of 2008?

A 2008. Mm-hmm.

Q And tell us about when he came in.

A He -- he just came through the front door and I was actually kind of surprised to see him, and he came in and said he had a letter he’d like to drop off. And I said I’d take the letter. And he left it on my desk and then he went out the door.

Oddly enough, even though there seems to have been some claim that Pentico was harassing people working there--there was no testimony at trial about this, and it seems that the judge had decided not to allow it--and yet this would seem to be the only legitimate basis for denying Pentico his First Amendment right to go into government buildings, and leave a letter complaining about improper governmental actions.

Now, Mr. Pentico is a somewhat intense person--but no more intense than I am. He's not someone that anyone would have much reason to fear--he's not 6'4" with bulging muscles. He's fairly slight of build. To deny someone their First Amendment rights should require some pretty strong evidence--but the judge seems to have decided that it was irrelevant to the question. It's unfortunate that the ACLU here isn't interested in First Amendment questions.

Mr. Pentico is supposed to be sentenced on Monday; I guess that I will go to see what happens.

UPDATE: Wayne Hoffman at Idaho Freedom Foundation interviewed some of the players in this matter, and has some interesting reporting:

On March 25, 2008, two Capitol security officers blocked Pentico's entry to the Legislative Annex and told Pentico not to enter the annex, the third and fourth floors of the Borah Post Office (the temporary home of the governor's suite of offices), and the state Department of Education.
"I was asked not to have (Pentico) come back, and I relayed that information to him," Idaho State Police Corporal Jens Pattis told me Wednesday. Pattis said he consulted with Otter adviser Clete Edmunson and House Sergeant-At-Arms Judy Christensen on how to handle Pentico.
Edmunson said Pentico wanted Otter to inject himself in Pentico's dispute involving Boise State University and the State Board of Education, and persisted even after being told Otter would have no part of it.
"He just kept coming back to us," Edmunson complained.
Was Pentico belligerent? I asked Edmunson.
"I wouldn't say belligerent," Edmunson answered. "Obstinate might be the right word for it."
"He wouldn't take no for an answer," added Mark Warbis, the governor's communications director.
...
Equally troubling is that a very small number of government employees proclaimed three public buildings off-limits and then compelled Pentico to obey - not because they were afraid of him, but because they were tired of dealing with him. They alone determined the point at which a diligent constituent became an obstinate one. And they alone determined that Pentico's obstinance had crossed an imaginary line requiring their action.
For such a severe action, there seems to be little or no real record of the events leading up to the decision to bar Pentico from state offices, as evidenced by several competing stories. Edmunson and Pattis said the House of Representatives' Judy Christensen was included in a chat about barring Pentico, but Christensen said she doesn't know who Pentico is and doesn't recall having a discussion about him.
"He's not barred from the building by any means," Christensen said unsuspectingly last week.
At the Department of Education, officials were under the impression Pentico was banned because he had threatened State Board of Education members. He had not. And while Pentico was banned from the Department of Education, he was not forbidden from going to the State Board offices one floor up. Yet the Board is an original source of the conflict that soured the relationship between Otter's aides and Pentico.

There are at least two cases in which the Idaho courts have attempted to define the limits of the trespassing statute under which Pentico was convicted with respect to public property. The Idaho Supreme Court decided State v. Korsen (2003) and an Idaho district court decided State v. Stonecalf WarriorWoman (2008). Neither is exactly on point, but Korsen in particular should have given Judge Swain some guidance.

In the WarriorWoman case, a New Ager announced that she was

planning on attending a concert at NIC, on February 27, 2007, for the purpose of making a political statement. NIC learned of this through a posting placed on the internet by Warriorwoman. Tr. p. 2, Ll. 16-25; p. 2, Ll. 8-11. NIC also received a telephone call from Warriorwoman saying she was going to be at the Raining Jane concert that night, and she was going to bring a “Tomahawk with a 30-million-year-old part to it, that she planned to dance and would be wearing too tight of clothing, and she wanted a black student and a yellow student to dance with her.” Tr. p. 5, Ll. 1-8. The stated reason was “She was holding the four corners of the earth to save the evil American.” Id., Ll. 24-25.

WarriorWoman was arrested at the gate for refusing to allow for a search of her backpack, and was told that she was trespassing. The decision decided that while she might have a right to free speech, the tomahawk crossed the line from speech to conduct. It's not a terribly good decision, in my opinion, because it fails to answer the question of whether WarriorWoman could have been denied entry if she had said that she was going to show up and hold up a sign expressing her opinion.

The Korsen decision is again not exactly on point, but closer. The defendant, Korsen:

David Korsen appeared at the office of the Idaho Department of Health and Welfare in Boise to discuss his child support obligations. He informed personnel at the office that he might get loud and that he was not going to leave until he obtained some relief regarding his support requirements. He learned from the social worker that only the court could grant the relief he was seeking through making adjustments to child support payments he owed. The discussion grew louder and louder and, although Korsen did not use profanities or make any threats, he refused to leave the offices. The police were called, and Korsen was arrested at the scene on a charge of trespass under I.C. § 18-7008(8), because he refused to leave after being asked by the regional director of the department, who was in charge of the offices, to vacate
the premises.

At trial:

The magistrate concluded that the statute violated the Constitution because it was void for vagueness as applied to public property and because the statute failed to properly inform a person on public property about the specific conduct prohibited by the statute.

The Idaho Supreme Court overturned this ruling. With respect to vagueness:

Neither the magistrate nor the district court examined the constitutionality of I.C. § 18-7008(8) as it applied to Korsen’s specific conduct in this case. Nor did they examine the statute in toto. Rather, they applied a hybridized form of the facial test, which ordinarily is used to determine if a statute is void in all its applications, by considering the statute only in its application to public property. By finding the statute vague, not as applied to Korsen’s conduct, but as to all applications on public property alone, the magistrate and the district court used an improper standard for determining whether the statute was facially vague. It was improper to conclude that the statute is invalid on its face as applied to public property, because the standard to sustain a facial challenge requires that a statute be held impermissibly vague in all of its applications. See Hoffman Estates, 455 U.S. at 497. Furthermore, because the magistrate failed to examine the individual conduct of Korsen, consideration of the “as applied” standard with respect to only public property was in error.

This argues that Judge Swain should have considered evidence of whether Pentico's conduct constituted constitutionally protected activity or not. He apparently did not allow it. The Idaho Supreme Court also found that the lower court had erred because they had concluded that any free speech was protected on public property from such a trespassing charge, rather than looking at the specific conduct of Korsen. And this paragraph seems to fit Pentico's case rather well:

As an example of the statute’s reaching constitutionally protected speech, the district court pointed out the situation of people entering the Capitol to meet with legislators, asserting that, because the threat of prosecution under the trespass statute “potentially chills such clearly protected activity, the Court finds that the statute is unconstitutional in a substantial portion of the cases to which it applies.” This conclusion, however, illustrates the district court’s erroneous application of the facial overbreadth doctrine. A statute will not be invalidated for overbreadth merely because it is possible to come up with a hypothetical situation in which the statute is
unconstitutional as applied. Taxpayers for Vincent, 466 U.S. at 800. Rather, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. . . .” Id., at 801-02.

Okay, Pentico's situation isn't hypothetical. The following paragraphs indicate that Korsen's conduct ceased to be free speech when he was informed that he was barking up the wrong tree:

The facts in Korsen’s case do not provide a situation where the exercise of free speech was impinged. Rather, Korsen showed up at the Health and Welfare office to conduct legitimate business, i.e., to discuss his child support obligation with the agency charged with overseeing collection of child support. When it appeared that his desire to obtain modification of the obligation could not be obtained at that office but, as he was informed, was a matter that properly should be addressed to the court where the obligation was established, the purpose of his visit to the Health and Welfare office came to an end.

Assuming that a criminal trespass prosecution is filed pursuant to I.C. § 18-7008(8) against a person on public property who is exercising his or her free speech rights, the statute could be attacked as applied to that constitutionally-protected conduct. This does not render the statute substantially overbroad. A reasonable reading of I.C. § 18-7008(8) shows that the statute does not reach a substantial amount of constitutionally protected conduct. The district court therefore committed reversible error in determining that the statutory language is overbroad.

There seems to be no claim that Pentico was doing anything but freedom of speech and petition of public officials for redress of grievances. Persistent, yes. The governor may not have wanted to involve himself in the dispute that Pentico was raising. But it was within the governor's power to do so. Banning Pentico seems a pretty clear violation of the First Amendment.

Gun Safety Class For Women

Gun Safety Class For Women

I love these little reminders that I don't live in California anymore! From the April 29, 2009 Idaho World:

I'm A Bit Stumped By This

I'm A Bit Stumped By This

The Idaho legislature recently passed a bill that, at least in Idaho, would be right up there Mom and apple pie:

Adds to and amends existing law relating to sport shooting activities to provide for a limitation of liability on certain sport shooting activities and to provide exceptions; and to provide an exception to governmental liability relating to certain sport shooting ranges.

Essentially, it protects the operator of a shooting range from being sued except if the operator:

(i) Commits an act or omission that constitutes gross negligence or willful and wanton disregard for the safety of the participant and that act or omission caused the injury; or
(ii) Intentionally injures the participant.

The reason should be obvious: shooting is intrinsically somewhat hazardous. You accept certain risks if you are firing a deadly weapon, or going somewhere that deadly weapons are being fired. (Sort of like skydiving.) The net effect is that if the operator of a shooting range is making a reasonable effort to keep it safe, you can't sue him. It also seems to protect the operator if he has taken reasonable efforts, and another customer does something stupid, irrational, or criminal, that causes injury to another customer.

I believe that if the operator saw customer X do something obviously dangerous (like handling a gun on the firing line while customers were downrange), and didn't tell customer X to knock it off, and this lead to customer Y being injured, this would qualify as "gross negligence" or "willlful and wanton disregard."

Such a bill prevents ambulance chasing antigun lawyers from using a a trivial error by an operator, or the actions of another customer, from being used to bankrupt a shooting range. You can see why those who look out for ambulance chasers and antigun activists would oppose such a bill.

Well, the bill passed the legislature, but State Senator Tim Corder (who represents me up there), was one of only five state senators to vote against it! The other four who voted against it? All Democrats? All representing Boise. (The ambulance chaser, antigun part of Idaho.)

I know that this vote won't go down well with the voters of Corder's district. But my experience in the last election when I ran against Corder in the Republican primary was that a lot of Republicans I talked to disagreed with Corder's votes and bill sponsorships, often at the level of complete bewilderment. It wasn't that there were angry, but they found how he voted and the bills he sponsored so bizarre that they seemed to have trouble holding Corder responsible for his actions. Yet they still planned to vote for him, because...well, they went to church with him (and a church that can't possibly be happy with that sexual orientation bill he sponsored), and he was from Elmore County. (Our district includes Elmore and Boise Counties, and Elmore is the majority of the votes.)

I'm really hoping that someone from Elmore County runs against Corder in the Republican primary next time around. As near as I can tell, that's the only way to unseat someone who votes more like a Democrat than a Republican.

Walt Minnick Wants To Hear From Us

Walt Minnick Wants To Hear From Us

Well, maybe not. But he will!

NRA-ILA encourages you to attend
Congressman Walt Minnick's
Town Hall Meeting on the Second Amendment

Friday, April 17th
2:30 P.M.
Council Chambers, Meridian City Hall (First Floor)
33 East Broadway
Meridian, Idaho 83642

Remember: polite, calm words. Minnick is a sportsman, and needs reminding that the Second Amendment wasn't passed to protect the right to hunt, but so that the people retained the authority to overthrow a tyrannical government if it ever came to that. I'll be there.

Walt Minnick (D-ID) Keeps Surprising Me

Walt Minnick (D-ID) Keeps Surprising Me

First, he was one of a small number of Democrats who voted against Obama's porkulus bill, proposing a much smaller, much more realistic bill. Now he eschews earmarks. From the April 2, 2009 Idaho Statesman:

Rep. Walt Minnick, Idaho's best liaison to the Democratic majority, surprised his colleagues and some Idaho institutions with the news he wouldn't bring federal dollars to his district through the widespread but controversial use of earmarks.

"We are in scrambling mode," said Marty Peterson, lobbyist for the University of Idaho, which like many public colleges has relied on the practice to pay for some projects and programs.
Minnick said he knew some people would be upset.

"In this tough economic time, we all need to cut back," he said. "I strongly support many of the projects submitted to my office, so I understand why this decision will not be popular with some and that it may meet criticism."

Minnick said he would not push for earmarks - specific spending authority placed in congressional bills - for at least one year. He said he would try to bring money to Idaho by helping businesses and agencies win competitive grants offered in the stimulus package.

Now, it's true that Minnick's actions, alone, won't make any difference in the orgy of irrational spending going on up there, and earmarks are only a tiny part of the problem. But the earmarks are among the least justifiable part of our current budget process. I didn't vote for Minnick, and I am not likely to vote for him in 2010, but I can respect the courage that it takes to say "No" to the special interests that dominate American politics. It's unfortunate that the Republicans that represent Idaho in Congress don't show this same courage.