Idaho state Capitol fall 10-21-19

Idaho’s state Capitol, shown on Monday, Oct. 21, 2019.

BOISE — More than four months after Idaho’s Speaker of the House and Senate Pro Tem sued the state’s treasurer over a debate about the use of space in the Capitol, attorneys have not yet started arguing the facts of the case. They’re still waiting on a judge to decide if the case belongs in court.

They sparred over that question for roughly an hour in court Thursday. In the end, 4th District Court Judge Nancy Baskin took the issue under advisement, and said she would issue a written opinion later.

In June, House Speaker Scott Bedke and Senate Pro Tem Brent Hill, in their official capacity as lawmakers, sued state Treasurer Julie Ellsworth. The suit has its origins in an effort by the Idaho Legislature earlier this year to appropriate money to build more offices for lawmakers and staff. That effort was unsuccessful, but if it had been, it would have required the Treasurer’s Office to move from the first floor of the Statehouse, where it has been for more than a century. The lawmakers pointed to a state law that gives the Legislature control of the first floor of the Capitol. Ellsworth’s attorney, David Leroy, has asked Baskin to dismiss the case, and that was why both sides of the suit were in court Thursday.

Leroy said forcing the Treasurer to move would violate the separation of powers of the three branches of government, because the Treasurer’s Office is part of Idaho’s executive branch of government and he argued the Treasurer has “general authority, enumerated discretion, and implied powers,” to carry out her job. He said the Legislature forcing her to move is an attack on all three of those tenets, and cited Article 4, Section 1 of the state’s Constitution, which reads “(Executive officers’) official office shall be located in the county where the seat of government is located, there they shall keep the public records, books and papers.”

Thus, he said, it is implied the Treasurer, as an executive, has the ability to choose the location of her office and ensure it is functional — and if she chose to remain on the first floor of the Capitol, the legislative branch would be overstepping its bounds in forcing her to move.

“The implied ability not to be in a closet in Kuna so as to be able to perform is also within that executive’s authority,” he offered by way of example.

The Treasurer’s Office is also unique, Leroy pointed out, in that it contains a massive vault where the state’s money and financial documents are stored.

“The capitol was built around that vault,” he said.

Leroy argued Bedke and Hill needed a vote from both the House and Senate before they filed the lawsuit. That’s because they admitted they were claiming there was an “institutional injury” in question — meaning an injury to the whole Legislature. He cited a multiple U.S. Supreme Court decisions, one in which the court ruled Arizona legislators would need a vote from both its House and Senate to claim an institutional injury.

B. Newal Squyres, the attorney representing Bedke and Hill, saw things differently. He argued the 2007 law giving the Legislature control of the first floor placed the responsibility for its allocation on the shoulders of the Speaker of the House and the Senate Pro Tem. Thus, Bedke and Hill had authority to file the lawsuit, because, by law, they are the two people who would have to determine the use of space on the first floor.

“They have been prohibited — there’s no question about it — that they have been prohibited from carrying out their responsibilities and duties by, what we allege, is the wrongful conduct of the state Treasurer in refusing to acknowledge the significance of the statute,” Squyres said. “We can litigate the merits — is the statute constitutional? But are these the proper people to bring this case? Of course they are. They have been injured. Because they can’t act. They can’t do anything.”

He asked Baskin not to dismiss the case, because it would help clarify matters, he said.

“It will establish — and this is important — it will establish he certainty needed for the parties to move forward in the exercise of their statutory and constitutional responsibilities,” Squyres said.

It is uncertain when Baskin will issue her written decision on whether to dismiss the case.