For the reasons we’ve beaten to death in our earlier posts concerning historic horse racing machines in Idaho, OpenCdA agreed with Governor Otter’s decision to veto S 1011 passed during the 2015 legislative session.  That bill repealed Idaho Code § 54-2512A.  His decision to veto the repeal effort was the right one.

However, we also agree with the Idaho Supreme Court’s decision released September 10, 2015, to overturn Otter’s veto.  Otter bungled the veto.  It is impossible for us to believe that an honest, competent, and experienced governor could accidentally or even carelessly mess up the state’s clearly defined veto process.

To OpenCdA it looks as if Governor Clement L. Otter intended for his veto to be unable to withstand the inevitable and ultimately successful legal challenge that was mounted against it.

Governor Otter and his staff were well aware of the procedural timeline for vetoing a bill. So were Secretary of State Denney and his staff.  Otter had every opportunity to veto S 1011 in compliance with constitutional and statutory requirements, yet he and Denney seem to have instead performed the Texas Sidestep.  That theatrical exercise allowed Otter to straddle the political fence.    By exercising a veto he almost certainly knew to be unsustainable, he could appear to be supporting the horse racing community on its side of the fence.  On the other side, knowing his veto would almost certainly be struck down by the Court, he could use it to ingratiate himself with the tribes by reinforcing their near-monopoly on legalized gambling in Idaho.   It certainly looks to us as if Otter and Denney and their legislative cronies sought to use the Idaho Supreme Court as the instrumentality of their villainy.

OpenCdA believes the Idaho Supreme Court Justices were justifiably angered that the Governor and Secretary of State Lawrence Denney had manipulated the veto process in order to force a Court challenge.   Idaho law provides for an award of attorney fees and costs to the prevailing party (the Tribe) “if the non-prevailing party [Secretary of State Lawrence Denney] acted without a reasonable basis in fact or law.”   As Justice Eismann noted in his special concurring opinion awarding costs and attorney fees, “In this case the arguments raised by the Deputy Attorney General [Brian Kane] in defense of the Secretary of State’s failure to perform his statutory duty did not have a reasonable basis in fact or law.  (Emphasis added.)  The Deputy Attorney General mischaracterized the applicable law and made disingenuous statements regarding the facts.”

An OpenCdA reader opined that the Court’s reaction to Otter’s and Denney’s veto procedure may have been professionally improper as represented by Justice Eismann’s toxic comments toward Deputy Attorney General Brian Kane.  The reader referred us to the Standards for Civility in Professional Conduct | Idaho State Bar, United States District Court, District of Idaho, and the Courts of the State of Idaho.  In the section headed Court’s Responsibilities to Attorneys and Litigants,  number 2 reads, “We [judges and justices] will not employ hostile, demeaning or humiliating words in opinions or in written or oral communications with attorneys, parties or witnesses.”

We urge other readers to closely examine the comments of all the Justices in the decision and decide for yourselves if their comments were “hostile, demeaning, or humiliating”.  If you conclude they were, then ask yourselves if there are  instances, possibly this one, in which the conduct of an attorney, particularly an Idaho Deputy Attorney General, is so improper that a judge or justice can be forgiven for venting?  But if the Justice believed Kane’s conduct was so wrong, then wouldn’t a complaint about it to the Idaho State Bar Association have been the appropriate remedy?

In any event, the immediate effect of the Court’s decision was to cause the Idaho Racing Commission to quickly issue a cease and desist letter to the operators of the historic horse racing terminals.

To OpenCdA, this C&D letter is very significant.  As far as OpenCdA has been able to determine, it is the only time the Commissioners or their Staff issued any official notice to the operators that their terminals had been determined to be in violation of Idaho law.  We would expect that if there had been a conclusive, evidence-based determination that the historic horse racing terminals had been in violation of state laws since the terminals were installed, Otter’s four flunkies (Idaho Racing Commissioners plus the Director of the Idaho State Police) would have performed their assigned duties to try and either bring the alleged offenders into compliance or to initiate criminal prosecutions.   We would also expect that evidence to have been presented in the legislative hearings on S 1011.  Neither of those things happened.

Shortly before S 1011 was introduced in the last regular legislative session, the Coeur d’Alene Tribe had first sought a criminal investigation to determine if the historic horse racing/instant racing machines at Greyhound Park and Event Center in Post Falls violated the state gaming laws.  The request was based on the Tribe’s suspiciously belated allegation that the historic horse racing terminals in use at Greyhound Park in Post Falls violated the state’s gaming laws.  Following the Tribe’s lead, some legislators then asserted they had been deceived in 2013 and knew in their hearts that the terminals were slot machines.

From our OpenCdA post on April 9, 2015:

Then, after the Post Falls Police Department (PFPD) had initiated the requested criminal investigation and it became clearer that the PFPD would conduct a thorough and professional investigation, the Tribe may have had reservations the investigation’s outcome might not go the Tribe’s way.  The Tribe may have feared that in a court of law (and particularly in a criminal prosecution), its claims that the historic horse racing/instant racing devices were slot machines or prohibited simulations of casino gaming devices might not be supported by admissible evidence.  OpenCdA suspects the Tribe’s rationale with S1011 was that by getting the 2013 law (I.C. 54-2512A) repealed, the matter would be moot and the PFPD investigation would be abandoned.   (We suspect that our Kootenai County Prosecutor would have been happy with that outcome as well.)  So we think the Coeur d’Alene Tribe decided to hedge its bet by getting S1011 introduced specifically for the purpose of using the Idaho Legislature to preserve the various tribes’ monopoly on legalized gambling in Idaho.

By August 21, 2015, OpenCdA had heard nothing further about the investigation, so we sent an email to PFPD Chief Scot Haug asking for the status of the investigation.

That same afternoon we received Chief Haug’s reply. It read,

“Thank you for the e-mail response. Due to decisions at the legislative level and the pending litigation with the Supreme Court on this matter, we have suspended our investigation at this time. If appropriate, we will re-open the investigation.”

So the PFPD investigation that could have developed the evidence proving whether the historic horse racing terminals were illegal as alleged by the Coeur d’Alene Tribe was suspended.  Why?

We don’t know, but we suspect if that investigation had it been done diligently and to its conclusion, its results would have been politically embarrassing to someone regardless of the investigation’s outcome.

If the PFPD investigation evidence showed that the historic horse racing devices were not in violation of state law, then Idaho’s legislators would look like fools for too hastily repealing the 2013 law rather than waiting to see what the investigation’s evidence would show. It would also support a theory that the Tribe was trying to invoke the legal process to drive competitors out of business and to use the legislative process to monopolize gambling in Idaho.   In almost any federal judicial district other than Idaho, that would and rightly should raise a host of federal questions about violations of the horsemen’s constitutional rights to due process of law, possible restraint of interstate commerce, and because the Tribe is a sovereign nation, possible violations of the Foreign Corrupt Practices Act.

If the PFPD investigation found that the devices were in violation of state law, then it would be obvious the Idaho State Police and the Horse Racing Commission had not been diligently performing their law enforcement and regulatory duties .  If they had been, they would have addressed the legality of the historic horse racing terminals long  before the Tribe pushed first for a criminal investigation and then legislation.

When the now-repealed law was passed by the Legislature in 2013, even the Luddites in our Legislature should have recognized that the technology in the terminals they saw during the hearings could change. A professional and empowered state gaming commission or gaming control board would have put in place regulations which would  have required prior inspection and approval for substantive changes to equipment.  It’s not as if there weren’t gaming commission or gaming control board models available for our legislators to learn from. Several states including Washington, Nevada, New York, California, Mississippi, and New Mexico have them.

OpenCdA thinks that in the present case, the phrase “failure of duty” is appropriate to describe the official conduct of the Governor, the Secretary of State, the Attorney General, the Legislature, the Director of the Idaho State Police and his Idaho Racing Commission .

Here is the first of the results of their “failures of duty.”

We presume that Idaho’s Indian tribes, particularly the Coeur d’Alene Tribe, will be suitably and appropriately grateful to the Governor, the Secretary of State, the Attorney General, and Idaho’s legislators in years ahead.  As the Nobel-Prize-winning Irish playwright George Bernard Shaw said, “A government that robs Peter to pay Paul can always depend on the support of Paul.”