City Lawyers Lose Once More

Boise City continued its losing streak in the Supreme Court today when the high court ruled the Christians wishing to keep the Ten Commandments monument in Julia Davis park have the right to let voters decide the issue.

Keep The Commandments Coalition gathered more than 10,000 petition signatures demanding that city councilors put the question of keeping or removing a monument with the commandments before the voters. The council removed the monument and refused to honor the will of the petitioners–or the voters, calling their action “administrative” and not legislative.

The Supremes disagreed and reversed the judgement of Fourth District Judge Ronald J. Wilper. Only Jusitce Linda Copple Trout dissented. In a nutshell, the court said the petition process is legal, the group had enough signatures, and the people have the right to decide the issue.

Only after the voters APPROVE the issue would it be “ripe” for review by the court, but they refused to interrupt the initiative process. If the voters deny placement of the tablet, it is a dead issue. The legal question is NOT about the commandments– it is about allowing citizens the right to petition and vote.

This action is typical of a pattern established in recent years by local governments in general and Boise City in particular. The city attempts to find reasons to subvert the will of the people by using “judicial confirmation” for long term debt and lost two cases to the GUARDIAN editor who only wants the people to have a voice–regardless of the issue. It looks like the Supremes agree with the people more often than local governments of late.

Justice Gerald Shroeder authored the opinion which said in part, “The initiative process is a mandate, significant enough to be embodied in the Idaho Constitution, that enables voters to address issues of concern. Sometimes it compels authorities to listen when nothing else will….Just as the Court would not interrupt the legislature in the consideration of a bill prior to enactment, the Court will not interrupt the consideration of a properly qualified initiative. The petition qualifies for the ballot for consideration by the voters.”

For the record, we believe the Boise Council was probably correct in removing the biblical tablet from a city park, but they were totally out of line denying the measure to be placed on the ballot. This self serving legal advice is proving costly to taxpayers who have to foot the bills.

Comments & Discussion

Comments are closed for this post.

  1. Author, you completely ignore Justice Trout’s dissent. She recognizes that if the petition does not meet the requirements for an initiative, it can’t go on the ballot. Simple as that, the hurdle was not crossed by the coalition. If I were Boise City, I would spend even more money on a 9th Circuit review of the obsurd, cowardly 4 and 1/2 page opinion from the court.

  2. Does this mean Cecil B. DeMille wins? Or does it mean we will have cute little Brandi getting a few more minutes of fame? How people can get in a knot about such an issue is beyond me. I like that the Commandments is staring straight at the Statehouse where it is currently located. Much more appropriate in my mind.

  3. Excellent! Brandi is prolly polishing up them big hoop earrings at this very moment!

    For the record, I believe the city was cowardly in kowtowing to Topeka hate-preacher Fred Phelps. (It should be noted that Nampa and Caldwell both told him to “take a hike” when he made similar overtures concerning THEIR monuments, which remain in their original, municipally-owned spots, apparently not causing grief for anybody, even the non-believers.)

    EDITOR NOTE–Good points. We are probably ambivolent about the issue, but if they got the signitures they get on the ballot.

  4. I say YEAH!! Mr. Bieter needs to learn that Boise citizens do have the right to vote , just like the Basque People do. That was the core of the decision.. The city council was spineless in not standing up to the Kansas preacher,no matter. People from Idaho don’t go to other states and tell them what they can do or not! Would have been so much cheaper for the city to just let their citizens decide the matter.

  5. Voters Don't Count
    Aug 14, 2006, 6:24 pm

    The voters SHOULD decide this!

  6. Voters Don't Count
    Aug 14, 2006, 6:24 pm

    The voters SHOULD decide this!

  7. Voters Don't Count
    Aug 14, 2006, 6:24 pm

    The voters SHOULD decide this!

  8. Voters Don't Count
    Aug 14, 2006, 6:24 pm

    The voters SHOULD decide this!

  9. I can’t imagine the poor legal representation that resulted in this ruling. I am afraid I am with Crim445 on this one. I hope they appeal it to the 9th Circuit.

  10. Of Interest
    Aug 14, 2006, 7:23 pm

    Is it me or has this mayor been jumping from one court room to another since he took office?

    He doesn’t seem to be able to take “no” for an answer and everything ends up some kind of legal battle. I am not saying that there are not times that is how it has to be, but it seems to be a way of life for this guy, costing the tax payers a lot of money that might be better spent elsewhere.

    He has lost so many legal battles at the tax payers expense, if he looses the next election he may not have a legal practice to go back to either.

  11. While I understand that this should have been put to a vote, I must ask – when DeMille’s PR folks presented the item in question to The City of Boise, was it accepted just because it was the polite thing to do or did the public really want it? I know that this bit of historical questioning has nothing to do with today’s issue, but really, does the Parks Department HAVE to accept every gift and put it out onto public land without risking a law suit? If so, this could get out of hand!
    Right on bikeboy!

  12. not a chance
    Aug 15, 2006, 7:28 am

    The legal battle over this monument has been a complete waste of resources. And it will only get worse. And make no mistake. It, like so many other problems in this world, comes down to one thing. RELIGION.

    It is the root of all evil.

  13. I told you all on this board… If we all would have voted for Brandi this would have never happened!

  14. And I offer a hearty “amen” to Not A Chance.

  15. AAAARRRRGGGGHHH. I leave town for the wilderness for a few days and this is the mess I find. So many issues and not in the order of importance. First, there is no appeal to the ninth circuit from the Idaho Supreme Court. The appeal would go directly to the US Supreme Court. But since this is addressing an interpretation of the Idaho Constitution it is highly unlikely the Court would grant the appeal and meddle in what is an Idaho issue.

    Second, the majority opinion overruled three established Idaho cases to come to the conclusion it did. This is a highly activist decision for a very conservative cause. Justice Trout’s more reserved analysis recognized Idaho’s existing caselaw as well as the peruasive authority from neighboring jursdictions. There was simply no cogent legal reason for the Court to go the direction it did. This is purely an issue of procedure and does nothing to clarify existing law.

    Third, and most importantly, way too many of you seem to think that a vote will be the panacea to the issue. Yes only if its voted down. The bill of rights was designed to protect all individuals from their government. Our founding fathers rebelled against a tyranical government and sought to protect its citizens from similar abuses that could be perpetrated by the democratic government they were creating. So they made certain liberties and freedoms absolute to the citizens of the government they created. One of those freedoms is that the Congress shall pass no law respecting the establishment of a religion. My point is that these feedoms are inviolate, they cannot be removed due to the whims of a majority of the populace. In their infinite wisdom the drafters of the Constitution protected the citizens from the tyranny of the majority, whether that majority be Sikh, Shinto, Jew, Muslim or Christian.

    We should recognize that government should play no role in the very devisive issues religion can raise, whether its by the Phelps of the world or the Swindells. I think we should all honor the beauty of what the drafters have provided us and leave the religious issues in the respective houses of worship where they belong. But don’t push your religion on my government and definitely don’t throw the issue to the whims of the thirty percent of us who might deign to vote next time.

    The Council and the district judge did us a favor by focusing local government on more important issues like managing growth. And back off the Mayor on this one. He didn’t participate in the vote, the Council did this. Now we have a divisive wedge issue to vote on that will most assuredly result in further court challenges and waste more of our taxpayer money. And the Supreme Court went way out of its way to get there. I’m disgusted.

    EDITOR NOTE–Sis, you shouldn’t have left town! In defense of the Supremes, they say they felt it inappropriate to “interrupt the legislative process.” In short, it wasn’t up to Bieter (his legal department) to come up with a way to keep the 10,000 petioners off the ballot. Once it is passed by a vote, only then is it RIPE for adjudication. NO ONE has the right to pass an unconstitutional law, even Christians. Conversely the City has no right to short circuit the process. Your turn.

  16. BoiseCitizen
    Aug 15, 2006, 1:26 pm

    The vote can still happen. The “Idol Worshipers” can thump their bibles, but in the end it will still end up in court. Our sons and daughters are dying everyday in Iraq and these people can only think about a piece of rock and hope for the “end times”? The world has truly gone mad.

  17. Yeah Guardian but they’re wrong. As Justice Trout points out: “That issue is ripe because there is a controversy today as to whether the proposed act is legislative or administrative and there is a present need for adjudication to make that determination before the City is required to fund an expensive election.” The question of whether the proposed initiative is administrative or legislative should not await the outcome of the election. That’s ridiculous. What more information will be available to the Court after the election to enable them to more fully evaluate that question? The sole basis for the majority opinion is that the measure may be defeated rendering its determination on the issue moot.

    When ten thousand people do a stupid thing, it is still, in the end, a stupid thing. This ruling undermines the concept of representative democracy, having trained professionals elected by the citizens and who are paid to become informed thoroughly on issues and render decisions accordingly. There is a democratic check ensconced in the system, voting the councilmembers out for bad judgment. I’d rather take my chances on the pros than toss it to a shrinking electorate who are motivated to vote only on that single issue or whose desision is based solely on a thirty second sound bite. I disagree with the Court and find little justifiable reason to encumber the process by adding this tool in order to satisfy the political ambitions of a few narrow minded “malcontents”.

    Your turn.

    EDITOR NOTE–Sis, it boils down to our differing opinion of “trained professionals” elected to office.

  18. sanityatstake
    Aug 15, 2006, 2:39 pm

    The 10 Commandments monument was never placed in the park as a monument to God. Instead it was placed there as a publicity move by the producers of the 10 Commandments movie. They put the same thing in many cities across the country. So, ironically it stands as a monument to Hollywood. By the way, can we export Brandi Swindell to Kansas?

  19. Yeah Guardian, when are you going to become one so the voters can pester you all day. If I had the confidence that someone as well informed as you was to make up the electorate on the issue I’d feel better about the initiative process. But the law used to state that where the Council has weighed in on the issue, the voters’ beef is with the Council. Now good and bad Christian voters will be guilted into voting in a bad law by a well funded, motivated and vocal minority.

    EDITOR NOTE–Have faith!

  20. sanityatstake – what do you have against Kansas?
    That being said – Yes, we all know the idol we are dealing with is a Hollywood one, but those of us who know that are not the ones who have taken the issue to court. We are just the ones reading this blog and having a poke at it.

  21. Yes of interest– There have been several controversies since Mayor Bieter took office! Probably half of them involve him trying to go around the voters. Now we know why the city employs , I heard about, 40+ lawyers..Is this true??

  22. For the sake of historical accuracy, I believe the monument was NOT placed by anybody involved with DeMille’s movie. It was gifted to the city (and identical monuments to hundreds of other cities) by the Eagles’ Club in the early 60s, albeit during the height of “Ten Commandments Fever.”

    I was perfectly happy with the monument right where it was. (If it had been a Star of David, or an Islamic crescent moon, or a flaming goat-skull… that would have been fine, too. I believe I could have used my God-given brain to conclude, “This monument doesn’t represent everyone’s beliefs, but it’s been here for a long time, and some of my fellow citizens enjoy it, and I can tolerate it. Peace, brother.”)

    If it had come up for a vote BEFORE Team Dave’ jack-booted thugs moved it, I would have voted to leave it in its place. (Unlike some, I don’t believe the founding fathers’ intent with the First Amendment was to stifle any public affirmation of religious belief, but rather to prohibit a “state religion,” as was prevalent in so many European countries at the time.)

    Now that the monument has been relocated (a shame)… I’m fine with that, too. And assuming I’m allowed to vote, I’ll almost certainly vote to leave it where it is. (As a believer, I believe contention is NOT of God, and He’d just as soon we leave the hatchet buried now. Likely Brandi sees things differently.)

    I’m curious to see if the divisive “monument election” will be held on designated Election Day in November (why not?), or if the city will hold a special election, at a cost of $40,000 or so, a week earlier or later. (Or maybe follow in the footsteps of the Eagle fire-department people, and hold a “secret election” on Election Day, publicized by word-of-mouth at hush-hush Coalition socials.)

  23. John Public
    Aug 17, 2006, 4:24 pm

    Is this decision an example of the activist judges that Bryan Fischer and Keep the Commandments Coalition have been warning us about?

  24. NuclearShadows
    Aug 23, 2006, 5:36 am

    If the monument is allowed then maybe the pagan community can erect a permanent ritual circle in J.D. Park. Think the Christians will go for that?

    And how about letting a Wiccan Priestess do the opening invocation at the Boise City council meeting once in a while? Fair is fair….

    EDITOR NOTE– Councilor Shealy keeps his eyes open and scans the room during prayer. It bugs at least one other member that he does so. Only those who peek–or watch reruns on TV are aware.

  25. Sisyphus:

    You’re wrong about everything except for the fact that there’s no direct appeal to the Ninth Circuit. The Justices did not engage in activism by striking down the three previous cases. Those decisions were pure judicial activism, and the current court has restored the balance by overturning them. Gumprecht and Weldon were activist for the following reasons: There is no law that allows for a city or county to make determinations as to the validity of any proposed initiative; there is no law that allows the court to remove a qualified initiative from the ballot, even an invalid or “administrative” one; and the issue of whether a ministerial officer could frustrate the initiative process by refusing to perform his duties on the grounds that the proposed initiative was outside the “scope” of the process was settled in 1935 in the case of Girard v. Miller.

    I could go on and on. The fact is that this recent decision by the Court is one of the most courageous, bold, and powerful initiative rulings in this state since Associated Taxpayers v. cenarrusa in 1986.

    The Justices have restored power to the people at the local level, which is a heroic thing for any politician to do. They have bucked the trend set by other courts. Few people will understand the significance of this.

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