Writings and observations

In a more normal cycle, Robert Vasquez wouldn’t have even entered the race for U.S. Senate this early. As it is, he’s not only been in but now, also, out.

He was quoted as saying: “We have been unable to meet the funding goals, which are required to run a viable campaign. I cannot in good conscience continue to raise funds, without the viable chance to run a winning campaign.”

Okay. (Though his web site doesn’t yet make reference to the withdrawal.)

We’ll note here too the flurry in the last couple of days about Boise City Council member Alan Shealey, a Republican, making reference to entering the race. He may be well advised to consider the hurdles much as Vasquez has.

Meantime, incumbent Republican Larry Craig will let everyone know his plans in due course.

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Norm Semanko
Norm Semanko

Toward the middle of today’s guest opinion in the Idaho Statesman by Norm Semanko, who leads the Idaho Water Users Association, was this bit of deliberate non-provocation:

Idaho’s Prior Appropriation Doctrine, embraced in its constitution and statutes, has worked well for Idaho for over 100 years. Augmented by additional water supplies including storage reservoirs, it has provided certainty and stability during times of shortage for farmers, cities and businesses alike.

The governor’s water summit was not a referendum on whether to change Idaho’s longstanding set of water laws. There will be no constitutional convention or other revamping of Idaho’s water laws.

The guest opinion was a statement of support for Governor Butch Otter’s recent water summit at Burley, which did not result in any immediate resolutions but did, as Semanko notes, have the virtue of bringing many of the players face to face. The fact that such a meeting might have real usefulness (and why followup meetings probably would be a good idea) is testament to Idaho’s gradually growing difficulties with effectively managing its water supply.

The summit wasn’t, as Semanko says, “a referendum on whether to change Idaho’s longstanding set of water laws.” But left unsaid was this question: Should that be considered? Should, for example, the prior appropriation doctrine (first in time, first in right) be tossed in favor of some other principle?

That would mean thinking outside of long-standing tradition. But some of the emerging water issues are non-traditional, too. Some large-scale careful consideration might be in order.

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Rebuffed for a decade or so by residents determinedly opposed, Wal-Mart has finally made its way into Twin Falls, winning a key city council vote on Monday. It will be Idaho store 22.

About a couple of dozen residents, mainly from the North Pointe Ranch and Los Lagos subdivisions, still were there in opposition. Said one: “You have about worn me down. We hope your conscience will let you vote for what Wal-Mart wants because after all you need to respect the integrity of neighbors and the lovely homes that are there.”

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The Northwest’s newsrooms, taken wholly, are fitfully represented in the blogosphere, but the editorial pages do seem to be moving a bit ahead.

The latest to run this route is Spokane Spokesman Review, which this month started the Matter of Opinion blog fed by members of the editorial page staff (which can include the paper’s editor and publisher). Two of them additionally have blogs of their own (D.F. Oliveria’s Huckleberries Online being a very regular stop for us).

Neither the Seattle Times nor Post Intelligencer, both of which run a number of blogs (including a good political blog by each), seems to have an editorial page blog, although the Tacoma News Tribune has one. And there’s an editor’s blog at the Yakima Herald-Republic.

The Portland Oregonian has had one too for some time now. The Salem Statesman Journal has an editor’s blog, as does the Medford Mail Tribune, but the Eugene Register Guard doesn’t.

We found interesting that the first blog (that we know of) emanating from the Boise Idaho Statesman was by the paper’s editorial page editor, Kevin Richert. (It too is a frequent stop.) Not many others so far in Idaho, though. Opinion pieces often do show up on the Idaho State Journal politics blog. There are some preliminary blogging efforts at the revamped Lewiston Tribune web site. The only public blog at the Idaho Falls Post Register has to do with its new press.

Our guess is that a couple of years from now, there will be more.

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cigarettesThe excellent recent book Illicit by Moises Naim offers a startling overview of a big piece of the global economy little noticed (because it deliberately keeps its head down) – the trade in illegal, contraband or counterfeit goods and services. The longtime editor of Foreign Policy magazine at one point offers this description:

“Since the early 1990s, global illicit trade has embarked on a great mutation. It is the same mutation as that of international terrorist organizations like al-Qaeda or Islamic Jihad – or for that matter, of activists for the global good like the environmental movement or the World Social Forum. All have moved away from fixed hierarchies and toward decentralized networks; away from controlling leaders and toward multiple, losely-linked, dispersed agents and cells; away from rigid lines of control and toward constantly shifting transactions as opportunities dictate.”

A point to bear in mind, reviewing the announcement last week of a settlement in the great Northwest cigarette smuggling case, now, evidently, mostly settled in advance of trial.

It was a large case, brought in 2003 and worked steadily since in the old-fashioned way, getting participants to roll over on others. If you think cigarettes are a minor deal as crime goes, ask yourself how many crimes would cost taxpayers (in this case in Washington state) as much as $56 million in tax revenue, which federal officials estimate was the case here.

We’d have been highly interested to see all the details a trial might have unearthed, but we’ll settle for the moment for the reports in the plea agreement papers. (The Spokesman-Review has posted three of them on its web site.)

The conspiracy was pegged on two points of cigarette tax law: Buyers of cigarettes sold on Indian reservations aren’t assessed state taxes; and, Washington has some of the the highest cigarette taxes in the country. If you’re sitting on the Coeur d’Alene Indian Reservation at Plummer, Idaho, a few miles from the border, opportunity could seem to be yodeling at you.

The plea deal said that “the enterprise engaged in, and its activities affected, interstate commerce. The defendant Louie Mahoney was a central conduit of virtually every aspect of the enterprise’s unlawful activities. Louie Mahoney ran a multi-million dollar a year contraband cigarette trafficking organization headquartered in Plummer, Idaho.” The arrangement was that his partners would load trucks with cartons of cigarettes and haul them to Indian reservations around Washington state, not reporting them (of course) to Washington state officials, and bypassing the tax.

It seems to have been a criminal organization on the old model – fixed places of business, a specific hierarchy and leadership, an established pattern of operations. That probably is part of what allow federal Internal Revenue Service and the Bureau of Alcohol, Tobacco, Firearms & Explosives agents to effectively nail it.

The temptation to make illegal profit off the variances in tax rates, however, isn’t going away. If Oregon increases its cigarette taxes to roughly match Washington’s, as it may, the incentives for the regional illicit trade may grow. Which means the federal agents are likely to be busy again, in due course, tracking down Mahoney’s successors. The catch is that, if Naim’s analysis of the global illicit trade is right and if the patterns descend to localities, the next cigarette enterprise may be more diffuse, more ad hoc, less structured.

Tougher to catch.

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courtroomWe know that the constitution says we all have a right to not be required to incriminate ourselves: “No person . . . shall be compelled in any criminal case to be a witness against himself.” In some cases, the meaning of that right, and the line-in-sand it draws, are evident enough. In other cases, not so much.

Consider the appeal (formally, a request for writ of certiorari) of the Idaho Attorney General’s office, filed Friday, to the U.S. Supreme Court, from a decision by the Idaho Supreme Court. Here’s the executive summary:

After his conviction and sentence for rape, Krispen Estrada filed a petition for post-conviction relief in the Idaho district court, claiming ineffective assistance of counsel in sentencing. The district court determined that Estrada’s counsel in the criminal case had provided deficient performance by failing to advise Estrada about his privilege against self-incrimination in regard to a court-ordered psychosexual evaluation. The court denied the claim, however, reasoning that Estrada was not prejudiced because he would have received the same sentence because the sentencing court could have properly drawn adverse inferences at sentencing, such as lack of remorse, non-amenability to treatment, and risk to the community, if Estrada had refused to participate in the evaluation. The Supreme Court of Idaho reversed the district court’s finding of lack of prejudice, implicitly rejecting the district court’s determination that the sentencing court may properly draw adverse inferences from silence at sentencing, and holding prejudice was shown because the evaluation “played a role” in sentencing. The question presented is:

Other than in finding the facts and circumstances of the offense, may a sentencing court draw adverse inferences from a defendant’s refusal to cooperate in a pre- sentencing evaluation?

Estrada’s offense is certainly heinous, “beating, choking and raping his estranged wife in front of their children,” then holding off police in a seven-hour armed confrontation. But the question of self-incrimination – in this case, allowing an effective inference of guilt from a decision not to speak – is a lot broader than one case.

In Estrada’s case, he was convicted of the crime – through a plea deal – before the issue of psychosexual testing came up. His guilt or innocence was not at issue; the testing was used to help the judge determine whether he would continue to threaten violence to society. The testing indicated that he did, and the judge sentenced accordingly. A lawyer for Estrada said that the attorney previously handling the case should have fought the testing, on grounds that the convict was effectively testifying against himself, if not for purposes of guilt then for purposes of sentencing, which also matters.

In other words: Can your insistence on your rights be held against you?

There are other cases where we do allow something of the sort. If you’re stopped while driving and suspected of driving under the influence, and refuse to take certain tests, your license can be taken away. It’s not an exact analogy, since driving is a licensed and limited activity, not a general right, but something of the point remains similar.

There’s also the position of a judge who has to decide what level of danger a convicted person may pose to society. Should we say that a judge shouldn’t consider all relevant factors in trying to make the best decision – but only some of them?

The whole area is an unclear piece of the law. As the AG’s appeal notes, “The Lower Courts Are Divided Between Those Jurisdictions That Allow No Adverse Inferences At Sentencing, Those That Allow Adverse Inferences At Sentencing Except To Show The Facts Of The Underlying Crime, And Those That Pro-
hibit Adverse Inferences That Increase A Sentence But Allow Adverse Inferences In Denying A Decrease Of The Sentence.”

There’s no perfect answer. This is one of those cases where various rights and responsibilities do seem to come into collision. It ought to be a useful piece of work for the high court to undertake.

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Micron TechnologyAthink piece in the current Business Week magazine points out that corporate spending is continuing to grow, but that “just increasingly outside the U.S. A BusinessWeek analysis of financial reports from more than 1,000 large and midsize U.S.-based companies shows that global capital expenditures in the fourth quarter of 2006 were actually up 18.1% over the previous year, a number that includes nonresidential construction as well as info-tech equipment and machinery. The comparable growth for domestic business investment, which is all the government reports each quarter: only 8.9%, without adjusting for inflation.”

Which would be notable but not Northwest-oriented except that one of the handful of corporations the article highlights is Boise-based Micron Technology, on which a large chunk of the Boise-area economy is reliant. And whose CEO, Steve Appleton, is quoted as saying, “I don’t have to hire one more person in the U.S. I don’t have to invest one more dollar here – and we’ll be just fine.”

Back at Boise, where two years ago talk of the town was of a prospective new billion-dollar Micron production operation (not yet materialized), the Idaho Statesman has asked Micron for some further explanation of its growth plans. No response as yet, the paper reports.

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Caldwell’s Curtis Bowers will be the newest Idaho legislator, replacing Representative Robert Ring, who resigned for health reasons.

In choosing Bowers, Governor Butch Otter chose the third-ranked choice of the western Canyon County legislative committee which nominated him along with former state Agriculture Director Pat Takasugi and Caldwell attorney Jim Rice. But both of the others had issues. Takasugi was ousted by Otter on his arrival in the governor’s office; whatever all his reasons were, a Representative Takasugi probably would have been an uncomfortable fit. And Rice had lost a county commission primary.

Bowers has his own back involvement, albeit tangential. In 2006 he announced he was running against Ring, often described as one of the more moderate House members, from the right. Bowers, who owned but by 2005 sold the Boise and Nampa Mona Lisa Fondue restaurants, withdrew from the Ring race early on. Still, indications are that the Ring-Bowers transition is another step n the rightward tilt of the Idaho House.

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Only the foolish make flat predictions, on application release day, about the name of the next appointed justice on the Idaho Supreme Court. The Idaho Judicial Council, which screens for two-to-four applicants (usually four), and the governor, who makes the final selection, have historically proven adept at upending expectations.

Bart Davis
Bart Davis

That said, the early money seems likely to go to the state Senate Majority Leader, Bart Davis, R-Idaho Falls, and for substantial reason.

The opening will result from the retirement of the court’s chief justice, Gerald Schroeder, at the end of July. (He has, as an aside, a remarkable record on the bench. He has been a judge since 1969 and on the Supreme Court for a dozen years, and throughout has been held in broad high regard. In spite of which, neither stiff nor stuffy; he’s low-key, humble and has a sense of humor. One of the region’s lesser-known long-running class acts.)

The court opening, one of the few appointive spots in recent years, drew a pile of applicants: 19 in all. The Idaho Judicial Council (which will interview the candidates) lists them on its site:

DAVIS, BART M. – Idaho State Senator and Lawyer in private practice – Idaho Falls, ID
GABBERT, MYRON DAN – Adams County Prosecutor and Lawyer in private practice – McCall, ID
GILMORE, MICHAEL S. – Deputy Attorney General – Boise, ID
GINES, RALPH J. – Lawyer in private practice – Boise, ID
HORTON, JOEL D. – District Judge of the Fourth Judicial District, Boise, ID
HUNTER, LARRY C. – Lawyer in private practice – Boise, ID
JONES, WARREN E. – Lawyer in private practice – Boise, ID
KRISTENSEN, DEBORA K. – Lawyer in private practice – Boise, ID
LUKER, LYNN M. – Lawyer in private practice – Boise, ID
PETERSON, Jr., CHARLES F. – Lawyer in private practice – Boise, ID
SATTERLEE, KEVIN D. – Assoc. Vice President and General Counsel for Boise State University, Boise, ID
SKINNER, Jr., GARDNER W. – Lawyer in private practice – Boise, ID
SMITH, MARVIN M. – Lawyer in private practice – Idaho Falls, ID
STICKLEN, KATHRYN A. – District Judge of the Fourth Judicial District, Boise, ID
STRONG, CLIVE J. – Division Chief of the Idaho Attorney General – Boise, ID
TORYANSKI, MITCHELL E. – Deputy Attorney General – Boise, ID
WHITE, TERRENCE R. – Lawyer in private practice – Nampa, ID
WOOD, BARRY – District Judge of the Fifth Judicial District, Gooding, ID
YOST III, WILLIAM “BUD” F. – Lawyer in private practice – Nampa, ID

There is on this list a larger-than-usual number of really prominent names. Clive Strong, for example, has been for many years the state’s main man on legal matters that relate to natural resources, especially water; he is so key in that area that many people may not want him to move.

A Supreme Court appointment has to be politically acceptable, and that factor may knock out some of the people on the list.

Former Governor Cecil Andrus generally preferred appointing non-district judges to the high court. Otter’s views on that idea aren’t clear, but after Schroeder (a former DJ himself) leaves, three of the four other justices (Linda Copple Trout, Daniel Eismann, Roger Burdick) still will be former district judges. That may weigh against appointing another one. And among the applicants, the judge with the broadest experience, 5th District Judge Barry Wood (who has gotten strong reviews for his work over the years, and acquitted himself well presiding in the tough Snake River Basin Adjudication), has background and regional experience that may too-closely match that of Burdick, the most recent appointee to the court.

Another frequent consideration is regional. The post-Schroeder high court will have justices with substantial southwest Idaho background (Eismann, Jim Jones), northern Idaho (Trout), and the Magic Valley (Burdick and Jones). The region left out, as it has been for a while, is eastern Idaho. Of the 19 applicants for the opening, 15 hail from the Boise-Nampa area. Of the other four, there’s one from McCall (Myron Dan Gabbert), one from Gooding (Wood), and two private practice attorneys from Idaho Falls – Marvin Smith and Bart Davis. And Davis, besides his various civic pushups, has been active in state Bar activities (mainly in the commercial law area); he’d be a credible appointee from that front, too.

Of course, you never know. Sometimes people interview poorly at the council (and those interviews are open to the public; if someone bombs there, which occasionally happens, everyone knows). Otter’s relationship with Davis would be in play, if Davis makes the short list, and factors there could include a reshuffling of Senate leadership.

At the moment, at least, Davis seems the name to watch.

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Acouple of things came out of the Burley water summit Idaho Governor Butch Otter called for this week. Neither was what he probably was hoping for.

One was a raft of bad headlines for holding the key parts of the conference behind closed doors; the critics included not only newspapers but also the chair of the Senate resource committee, Gary Schroeder, R-Moscow: “I don’t think that my constituents want me involved in any type of situation in which public policy is decided behind closed doors.” And, consequently, he declined to go to Burley.

Otter’s rationale for closure was that deals might be more likely struck if no one had to couch their language in careful, quotable terms; if they could speak freely. Sometimes it works that way; that’s how the massive (and useful) Nez Perce/Snake River deal was crafted. But that was a discussion of private interests and options in the context of a lawsuit; the water summit was intended to address more conventional policy-making about water distribution. In this case, everyone present was prospectively on the opposite side of possible lawsuits or regulatory actions – not the place to let your hair down. On top of that, anyone outside the room was likely to become immediately skeptical about whatever deals were struck inside, which is a bad place to start policy making. (There were also issues about who was and wasn’t in the inner ring of negotiators – for example, Pocatello Mayor Roger Chase, whose city has been an important factor in water law in recent years, was bumped off the central group, in favor of the new mayor of Idaho Falls.)

In the event, the second thing that came of it is that very little did:No sweeping agreements were reached. The governor’s spokesman, who would have the most incentive for spinning any results positively, said that “I think we’ve got a basis for moving forward, but I don’t think I’d call it an agreement.” A basis for moving forward might mean not much more than that no physical violence occurred in the closed room.

In the next round of efforts toward resolution (there never was any way this would get settled all at once), a more open approach – making clear to everyone the varied stakes involved, and that there really aren’t any villains here – could yield more general understanding, which ought to result in some solutions. At least, after Burley, it might be considered as an alternative that could result in no less progress, and certainly in fewer bum headlines.

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