Constitution

County Probation System May Be Unconstitutional

While the GUARDIAN has been concerned with allegations of fee overcharges and other irregularities in the Ada County Misdemeanor Probation system, we question why the county is even in the business of offering probation services–private or public. We have been advised of constitutional issues which should stop the practice in its tracks.

In a nutshell it would appear the Idaho Legislature has passed several laws giving the courts and the counties authority to conduct adult probation services. HOWEVER, the legislature has no authority to transfer power constitutionally held by the Executive branch of state government to another level (counties and judicial). They can’t grant that which they do not possess.

Article X STATES:
SECTION 5.STATE PRISONS — CONTROL OVER. The state legislature shall establish a nonpartisan board to be known as the state board of correction, and to consist of three members appointed by the governor, one member for two years, one member for four years, and one member for six years. After the appointment of the first board the term of each member appointed shall be six years. This board shall have the control, direction and management of the penitentiaries of the state, their employees and properties, and of adult probation and parole, with such compensation, powers, and duties as may be prescribed by law.

The constitution makes no distinction between misdemeanor and felony probation.

Article II STATES:
SECTION 1.DEPARTMENTS OF GOVERNMENT. The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

For many years the courts and counties have simply claimed authority for probation services and obviously gotten the legislature to offer some semblance of legitimacy to the practice. The Idaho office of Public Defender appellate services gets kudos from the GUARDIAN for some very basic and well reasoned legal research–the Constitution trumps all the subsequent laws.

Tuesday’s open business meeting of the Ada County Commishes should be interesting. On the agenda is an item to approve the probation contract with Nancy Cladis for another 12 months. Given the complaints about the private for-profit Ada County Misdemeanor Court Services, a class action law suite, and now the revelation that the whole probation scheme could be illegal, one would think the new contract will not be approved.

UPDATE TUESDAY–
The Ada Commishes tabled the motion to approve the contract, citing the constitutional issues above. They plan to seek additional legal advice and have set it for the October 18 meeting.

Comments & Discussion

Comments are closed for this post.

  1. PISSED: You stole my line…

    If you want to e-mail me I will see if I can help you. lexpublica@gmail.com. I do NOT work for probation – promise. I am an attorney here in Boise.

  2. Pissed - current probationer
    Oct 21, 2011, 4:15 pm

    Users beware PUBLICA sounds like a joke. I recieved an e mail from them and i personally think its the ACMPS trying to be sneeky to figure out who is exercising their 1st ammendment rights and quietly punish them. I base this on the fact he/she states they work for the public defenders office and WANT to look into the case for me. WHEN HAS THE PUBLIC DEFENDERS OFFICE EVER GIVEN A DAMN. Sounds way too fishy.

    EDITOR NOTE–We believe PUBLICA to be legit based on off the site private e-mails we have received. While we don’t endorse any of the screen name people, we try to offer our best information on intentions without compromising anonymity.

  3. what happened to Austin Plew, Did Ada county let himslide by or did the judges?

    EDITOR NOTE– Preliminary hearing set for Dec. 22 with a Canyon County prosecutor, at Ada Court.

  4. probationer2
    Dec 11, 2011, 10:21 pm

    DEc 22nd is the preliminary hearing for Mr. good ole’ Plew.

  5. Is it staying in Boise?
    EDITOR NOTE–Yes at this time there has been no change of venue, only out of county prosecutor.

  6. exprobationer
    Dec 12, 2011, 11:20 am

    2 comments….publica is not working with or for ACMPS he is in fact an Ada county public defender. another little note Plews prelim date is old news.. from what I overheard at his last prelim a deal is in the works… yes I evesdropped and I will be there again on the 22nd setting right behind Mr Plew if at all possible to evesdropp again.

    EDITOR NOTE–You just blew your cover!

  7. exprobationer
    Dec 12, 2011, 5:44 pm

    whats that mean Dave??

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