A branch of government that chose to be a twig

Jim Fisher Sunday, December 02, 2007

U.S. District Judge Lynn Winmill is taking time to sort out the legal questions raised by several Idaho school districts' lawsuit against the state Supreme Court, but it didn't take him long Wednesday to declare the case "odd."

He could have said that again. The districts' original suit against state government over school construction costs ended with a court decision in their favor that may as well have been written in invisible ink.

First, the state's highest court ruled that legislators were failing to meet their constitutional duty to provide for safe schools. It even suggested specific ways they might meet that obligation, such as reducing the two-thirds supermajority of voters required for construction bond issues or helping pay for construction and repairs from the state's general fund.

Then, the court declared the case closed and told everyone to forget it - which legislators were more than happy to do.

For more than a decade, as the case had worked its way through the court of an enormously patient trial judge, Deborah Bail, legislators tried several ways of neutralizing it. At one point, they took a low road suggested by Deputy Attorney General Mike Gilmore: Pass a law declaring plaintiffs defendants, and sue the bastards for daring to expect state government to care about safe schools.

The same Supreme Court justices who now permit legislators to continue ignoring their ruling would have none of that. They declared Gilmore's masterstroke unconstitutional.

After Bail finally ruled against the state, the state appealed, and appeared to lose. The Supreme Court upheld Bail's decision, and then acted as if the entire matter had been no more than an academic exercise. If refused to hand the case back to Bail for corrective action, and washed its hands.

Speaking of academics, University of Idaho constitutional law professor Jim Macdonald chooses the same word Winmill did to describe the court's action: "odd."

"Of course, the Legislature isn't going to do anything left to its own devices," he adds. But Macdonald points out it isn't so easy for the judicial branch of state government to order another branch around.

Even if it tried, legislative leaders might respond as Stalin did when warned against offending the Catholic Church: "How many divisions does the pope have?"

Idaho's highest court has no combat divisions, but neither has it made a history of enfeebling itself. Its inexplicable willingness to let legislators thumb their noses at it in this case has left it, the Idaho Constitution and public education weaker. - J.F.

Originally published by the Lewiston Tribune