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.
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.
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