The June 5, 2014, Coeur d’Alene Press skewspaper article headlined Judicial OK sought on jail was uninformative and in one instance, misleading about the statutory process of judicial confirmation.  The article was correct about one thing:  It is the method which two of the three Kootenai County Commissioners and the Sheriff have chosen to bypass the voters in Kootenai County.

However, we wish Press staff writer David Cole and his editor and publisher had done a better job of explaining what judicial confirmation is and how the Legislature intended for it to be used appropriately.  OpenCdA will try to fill in some of the blanks left by the Press.

Judicial confirmation is a statutorily-prescribed process for having a district court judge confirm or deny that a proposed method of taxpayer funding for a variety of state and local government projects complies with the Idaho Constitution and Idaho statutes.  It is an alternative to seeking approval of 2/3 of the voters in an election for a bond to fund the same project.

The present issue giving rise to the judicial confirmation hearing is that the Kootenai County Sheriff believes his office needs a larger capacity jail to properly and lawfully perform his custodial duties.   Safely and effectively operating the county jail is not an optional duty.  Idaho statutes require the Sheriff to, “Take charge of and keep the county jail and the prisoners therein.”  (See Idaho Code § 31-2202)  In performing that statutory duty, the Sheriff is required to comply with various laws and regulations (for example, see the Idaho Sheriffs’ Association’s Idaho Jail Standards).  To get a clearer idea of the complexities of jail design, see the US Department of Justice, National Institute of Corrections Jail Design Guide, Third Edition.

In years past, the Sheriff has sought voter approval to fund increasing capacity in the county jail system, but the voters have sometimes said, “No, thank you.”

This time rather than risk voter disapproval again, the Kootenai County Sheriff and his cohorts have decided to try to persuade a district court judge to confirm that renting jail space from a private company for a little over $5 million per year is an “ordinary and necessary” expense of the county’s doing business and that it is not a multi-year debt or liability requiring voter approval.   This process to bypass voters was formally approved on June 4, 2014, when two of the three Kootenai County Commissioners voted to approve a submitting a petition for judicial confirmation to a district court judge.

(NOTE:  According to the Press article, “Judicial confirmation means the county will get an opinion from a state District Court judge on the constitutionality of an important section of the proposed rental agreement.”  That is misleading.   The judicial confirmation statute clearly calls for a binding decision from the Court, not an advisory opinion, and that is exactly what the Court will provide.)

In the judicial confirmation hearing the judge is supposed to consider only whether the funding mechanism complies with the Idaho Constitution.  He is not allowed to consider the merits of the project to be funded or its social, economic, or political value to the community or his own judicial future.  In contrast, the voter approval method does not restrict the voters from considering any and all factors in deciding whether to approve or disapprove the obligation of public money.

This time around, the Sheriff has opted to seek funding approval to rent a jail facility rather than build a county-owned jail on county-owned land.

A private company, Rocky Mountain Corrections, has offered to build a new jail at its expense on land it will acquire, then rent the jail to the County for between $5 million and $6 million per year until September 2035.  The agreement would be annually renewable subject to the County’s annually appropriating the rent.  The Sheriff would staff and operate the jail.

Here is the 17-page draft of the proposed rental agreement between the owner, Kootenai County Facilities Holdings, LLC of Englewood, CO, and the tenant, Kootenai County.  This is a straight rental agreement; at the end of the lease term, the County would not own the jail or the land it sits on.

By filing the petition seeking judicial confirmation, the County requests the Court examine the proposed rental agreement and determine whether the agreement can be validly executed in the absence of voter approval.

The next step in the judicial confirmation process will be for a district court judge to hold a public hearing to receive evidence, including public testimony.  While the judicial confirmation law has not been tested in higher courts, the law clearly requires the Court to independently examine the petition and the petitioner’s claims even in the absence of property owner, taxpayer, or elector objections.  The Court is not allowed to simply rubber stamp approve a petitioner’s request in the absence of public objection.  The Court is supposed to decide a judicial confirmation petition on the basis of constitutionality and legality, not on political expedience or project popularity.

Even if the Kootenai County Sheriff’s Office jail enlargement is desirable and its construction in the best interests of Kootenai County residents, the project’s  desirability will not be the issue before the Court.  By statute, the Court’s role in a judicial confirmation hearing is limited to determining whether the proposed jail expansion is an ordinary and necessary expense and whether the proposed rental agreement conforms to the Idaho Constitution and statutes.

While Article VIII, § 3 of Idaho’s Constitution requires voter approval to incur any debt or liability in any manner or for any purpose exceeding in that year the revenue and income provided for it during that year, it also provides that voter approval is not required to fund the ordinary and necessary expenses authorized by the general laws of the state.

Idaho case law has interpreted “ordinary and necessary” far more narrowly than we laymen might.  For example, in the 2002 decision cited above, the City of Boise felt it had outgrown its present police station and wanted to build a new police station at a new location.  The Court rejected the City of Boise’s claim that all expenditures for police protection are inherently “ordinary and necessary.”  In its decision, the Court said, “An expenditure for constructing entirely new municipal facilities is not normally an ‘ordinary and necessary’ expense.”   Ordinary expenses are those usual to the maintenance of county government, the conduct of its necessary business, and the protection of its property — BUT there must exist a necessity for making the expenditure at or during such year.

We discussed this in our 2012 post entitled “Ordinary and Necessary” and our 2013 post entitled “… and …“.

OpenCdA is not unalterably opposed to a new jail at a new location.  We discussed that in our April 27, 2014, post entitled “Revisiting an Old Idea” which linked to our 2006 skewspaper op-ed piece entitled “Bi-state effort answer to jail overcrowding.”  However, we believe that Commissioner Nelson was right in voting against seeking judicial confirmation to circumvent the voters.

The framers of Idaho’s Constitution believed and stated (see Idaho Constitution Article I, Section 2) that, “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.”  That is periodically reaffirmed in the district courts’ hearings on petitions for judicial confirmation.  For example:

“Among those powers most jealously guarded by the people is the power of local government to incur debt and to expend money on its residents’ behalf.  Therefore, the framers at Idaho’s constitutional convention decided to severely limited local government authority to incur debt in Article VIII, § 3 of the Idaho Constitution.  From the beginning, local governments have tested its limits, developing many schemes designed to avoid the consequences of this article.  Historically, the appellate courts have resisted their efforts, opining that the courts cannot and should not amend the clear constitutional prohibitions by judicial fiat”

— Case No. CVO0202395D, Decision Denying Petition, In the Matter of:  City of Boise, Petitioner, August 26, 2002

Article I, § 2 says that all political power is inherent in the people.  Implicit in that power is the right of the people to be wrong, to vote to make even bad decisions and to then accept the consequences of our bad decisions.   Voting to reject the construction or rental of a new jail may be a bad decision.  It may prove to be very costly, more costly than the proposed rental agreement.  But we believe that it is the right of the residents of Kootenai County to make that decision, because even if we are wrong, we are still the ones paying for it.

We hope that readers far more educated in contract law than we are (meaning, just about everyone else…) will closely and critically examine the proposed rental agreement between Kootenai County and Kootenai County Facilities Holdings, LLC of Englewood, CO.  We remind readers that the linked proposed rental agreement provided in response to our Idaho Public Records Law request is clearly marked DRAFT and that it does not include several appendices mentioned in the DRAFT.   What is finally submitted to the Court may not be this document.  For that reason alone we wish we had a diligent newspaper that would obtain and link to the final rental agreement and appendices on its website.  Those readers who may wish to testify at the judicial confirmation hearing need the final proposed agreement in its entirety to properly prepare.