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Otter petition to 9th Circuit: ‘Policy-making masquerading as law’

Oct. 21, 2014 9:35 p.m. - Updated: 9:37 p.m.

It’s been a long day, but now, a bit after 10 p.m. Boise time, Gov. Butch Otter’s petition for an en banc review of the 9th Circuit Court of Appeals ruling in Idaho’s same-sex marriage case finally has been filed. You can read it here. Its conclusion says, “The panel’s decision appears to be judicial policymaking masquerading as law. But it is bad law, conflicting with numerous decisions of this Court, other circuits and the Supreme Court. And it is even worse policy, creating enormous risks to Idaho’s present and future children—including serious risks of increased fatherlessness, reduced parental financial and emotional support, increased crime, and greater psychological problems—with their attendant costs to Idaho and its citizens. For all these reasons, the panel decision merits en banc review.”

Otter had an outside attorney to help with the 83-page filing, Gene Schaerr of Washington, D.C. The argument itself, outside of all tables of content, attachments and so forth, runs 25 pages. Here’s the odd thing: The 9th Circuit’s rules about en banc petitions are very specific, according to its guide to practice for attorneys, which is posted on the 9th Circuit’s website here. The deadline is 14 days after the decision; because the decision was issued Oct. 7, today is the deadline. And, the practice guide says, on Page 79, “Length. A petition for rehearing is limited to 15 pages. Fed. R. App. P. 35(b)(2).”

Does that matter? Might Otter’s petition be disqualified because it exceeds the limit? I don’t know the answers to these questions and it’s too late to ask anyone. But I’ll be interested to find out in the morning.


Idaho schools chief rivals spar over Luna legacy

Oct. 21, 2014 8:17 p.m. - Updated: 8:19 p.m.

Idaho’s current state superintendent of schools – the first non-educator ever to hold the position – loomed large in the debate Tuesday night between the two educators vying to succeed him. “If you liked Tom Luna, you’re going to love Sherri Ybarra,” Democratic candidate Jana Jones said of her GOP opponent. “We can’t afford to have another four years of a superintendent who is well-intended but ill-prepared.”

Ybarra also made some comments critical of Luna, a Republican who proposed a controversial set of school-reform laws that voters rejected in 2012. “Right now, I think that teachers are feeling very disrespected,” Ybarra said, “and I think they feel that the public does not support them and their leader does not support them. It’s important to remember that being on the front lines, I do support them.”

But she also said she’d “take the opportunity that our current leader has given me to transition in and spend two months closely studying” the school budget and the job. You can read my full story here at spokesman.com on tonight’s debate, which was broadcast statewide on Idaho Public Television. It included some agreement - on Idaho Core standards and restoring local control to school districts - but lots of disagreement, particularly on the school budget.


Closing comments from Jones, Ybarra

Oct. 21, 2014 7:14 p.m. - Updated: 7:15 p.m.

In their closing comments:

Jana Jones, Democratic candidate for state schools superintendent, said, “It’s been a great evening, and hopefully you understand the differences between the two of us.” She said. “The office shouldn’t be about politics and partisanship, it should be about doing what’s best for Idaho’s kids. And what I want for our kids is simple: I want safe schools, highly qualified teachers, modern up-to-date classrooms with technology that supports our teachers and our kids, and strong, rigorous stands that help prepare our kids for the future of their choice. My opponent said that she will carry forward Tom Luna’s agenda and walk side by side with the Legislature that has led our schools to the race to the bottom. I believe there’s a better way. It’s time to end the era of the one-size-fits-all top-down approach to educating our kids. My pledge to you is to return local control to our school boards, to our superintendents and our teachers, and to be the kind of superintendent that is inclusive and that will listen, and most importantly, provide leadership you can trust.”

Sherri Ybarra, the Republican candidate, said, “It was my pleasure to talk about one of my most favorite subjects which happen to be education. You really do have a stark difference in choices of candidates for this position. I am a conservative leader with a vision for the future. My opponent has the old tax and spend mentality. I have proven that my vision for Idaho works and that I will be a tireless advocate for our more than 250,000 students in grades K-12. I have a focus on maintaining what our kids need. I have been on the front lines with my sleeves rolled up earning the very respect of the team that I’m going to need to lead forward in education. And I think about our students, and how they deserve a state superintendent of public instruction who has been there for nearly 20 years on the front line, who has not taken a break from education, who has not been working in a business world and making those accusations about our current leader and doing the exact same thing.  I have a focus on our students, I will always maintain a focus on our students.” She then repeated, “I am a conservative leader with a vision for the future.”

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Ybarra on voting history: ‘That’s my plan, is to repay Idaho’ as schools chief

Oct. 21, 2014 7:03 p.m. - Updated: 7:04 p.m.

Asked about her statement at an earlier debate that running for state superintendent is one way she can “repay” Idaho for having not voted in a general election since she moved to the state in 1996, GOP candidate Sherri Ybarra repeated that statement, during the “Idaho Debates” tonight on Idaho Public TV. “I think the questions was asked, what is your voting history, and I had put that right out there from Day 1 that it was pretty inconsistent and that I wanted to pay back Idaho,” Ybarra said. “That’s a civic duty. And if elected, this will be a civic duty that I will repay Idaho through for my lack of having a consistent voting history.”

“And I would be honored to do that,” Ybarra said. “And I think in moving forward, that’s what we do as Idahoans, we don’t focus on the negative and the past, we move forward, we recognize it and we say how can we make it better and what’s your plan. That’s my plan, is to repay Idaho.”

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Schools chief rivals spar over state budget, funding for schools

Oct. 21, 2014 6:46 p.m. - Updated: 8:35 p.m.

Asked about the budget for Idaho’s schools, GOP candidate for state schools superintendent Sherri Ybarra said, “Money has nothing to do with achievement, there’s a lot of research out there about that. It’s better to be low and steady than to be erratic and be all over the map.”

Asked about her statement in an earlier debate that she’s support current Superintendent Tom Luna’s proposed budget for schools for next year, which calls for a 6.9 percent increase, Ybarra said, “That was Mr. Luna’s budget. … I know and understand that I can amend that at any time, and so I’m going to take the opportunity that our current leader has given me to transition in and spend two months closely studying that.” She said, “I do have an idea of a couple of places that I would like to look at that really would give … (control) back to local school districts. Local school districts know what they’re doing.”

Jana Jones, the Democratic candidate, said, “I understand the public school budget currently. … We don’t have time to wait a year for somebody to study and figure out where those things are going before those decisions are made. We need a superintendent that can get in there right now and get to work.” She said school districts are telling her that they don’t have the resources they need now.

Ybarra said the Legislature’s Joint Finance-Appropriations Committee supports her, but Jones said there are lots of members on JFAC and Ybarra hasn’t talked to all of them. “I’m sorry that my opponent is misinformed, and she doesn’t know who JFAC is, but they are listed on my website and they most certainly do support me,” Ybarra said.

Ybarra’s campaign website has been down much of the day, and is down now; while she has in the past listed a few lawmakers among her supporters there - including two members of the joint committee - JFAC has 20 members from both parties.

“I do know what JFAC is, I’ve actually testified in front of JFAC several times,” Jones told Ybarra, “and not every member of JFAC is on your website.”


Rivals for state schools chief debate how to improve student achievement

Oct. 21, 2014 6:32 p.m. - Updated: 8:37 p.m.

In the “Idaho Debates” tonight on Idaho Public TV, Republican Sherri Ybarra and Democrat Jana Jones, the two candidates for Idaho state superintendent of public instruction, have debated questions about student achievement in reading, math and more. Among their responses:

Both Ybarra and Jones, asked how they’d improve student achievement in Idaho so Idaho’s students will be prepared for jobs, pointed to the new Idaho Core standards, saying Idaho needs higher standards for its students. “It’s an opportunity to do things different and improve,” Ybarra said.

Jones said Idaho’s math initiative has fallen short because the “new math” hasn’t been well enough explained to parents. “We need to work with our families a lot better, so that they can support their kids in a much more meaningful way when it comes to the math,” she said.

Jones said the state’s “star” rating system for school achievement isn’t working well, while Ybarra said it is. “You need to have multiple indicators of how a school is doing … not just one assessment,” Jones said. She called for working with school districts around the state to “let them help us define what that star rating should look like, what should be the indicators we use … rather than putting it on hold until we get SBAC results in the spring.”

Ybarra said, “The star rating, that was based on growth, and that fits in nicely with my platform of address the whole child. We all know that each one of our students is different. So the old method before, that was called Adequate Yearly Progress by the government … it fit every one of our students into a box … a certain score on the test. … So we applied for a waiver and we went to the growth model … which worked very well for the schools and they enjoyed it.”


Jones in debate: ‘If you liked Tom Luna, you’re going to love Sherri Ybarra’

Oct. 21, 2014 6:08 p.m. - Updated: 8:07 p.m.

In her opening comments in their live debate tonight, Democratic candidate for state school superintendent Jana Jones said of her GOP opponent, Sherri Ybarra, “She has said that she will carry on and move forward Tom Luna’s recommended budget, as well as move into the office right next door to him the day after the election so he could train her on how to do the job. If you liked Tom Luna, you’re going to love Sherri Ybarra. We can't afford to have another four years of a superintendent who is well-intended but ill-prepared.” Jones said, “I know what needs to be done and more importantly I know how to do it.”

Ybarra said, “I have nearly 20 years of experience on the front lines. … I have taken a team of teachers and students from failing status to four-star status, and that’s exactly what this job is about.”


Monte Stewart no longer represents Otter in same-sex marriage case

Oct. 21, 2014 4:22 p.m. - Updated: 4:23 p.m.

A check of the 9th Circuit docket for Idaho’s same-sex marriage case doesn’t show Gov. Butch Otter’s petition for an en banc review yet, but it does show another filing: Attorney Monte Neil Stewart has withdrawn from representing Otter in the case. Stewart, who argued both Idaho’s and Nevada’s cases at the 9th Circuit, filed a controversial petition for rehearing in Nevada’s case last week claiming that the three-judge panel that heard both states’ cases was intentionally stacked with judges sympathetic to the plaintiffs. The charges, which question the integrity both of the judges who heard the case and the entire 9th Circuit administration for how it assigns judges to cases, raised eyebrows around the country and were highly unusual; the court hasn’t yet acted on Stewart’s petition.

When Stewart filed his petition, Otter’s office had no comment on it.


Idaho updates marriage license certificates in wake of same-sex marriage court ruling

Oct. 21, 2014 3 p.m. - Updated: 3:01 p.m.

The Idaho Board of Health & Welfare met today, and unanimously approved updates to the state’s marriage license certificates, including giving both applicants for a license the option to identify themselves as “bride,” “groom” or “partner.” The form also collects information on the gender of each applicant.

“Costs to implement the change are minimal,” the board said in a news release today. “The forms are generated through automated systems by the county clerks and do not require forms to be printed and provided by the state.” Today’s action came in response to the recent court ruling legalizing same-sex marriages in Idaho. You can see the new form here.


Otter says he’ll file petition for en banc review of 9th Circuit ruling in Idaho’s gay marriage case

Oct. 21, 2014 2:29 p.m. - Updated: 4:09 p.m.

Idaho Gov. Butch Otter announced today that he's filing a petition with the 9th Circuit U.S. Court of Appeals for an en banc re-hearing of Idaho's same-sex marriage case; you can read my full story here at spokesman.com. “I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society,” Otter said in a statement; click below for his full statement. He said his office will file the petition later today.

An en banc review at the 9th Circuit, because the circuit is so large, would mean that a larger 11-judge panel would re-hear the case, after a three-judge panel made the decision earlier. In smaller circuits, an en banc review is a rehearing by the full court. Otter and Idaho Attorney General Lawrence Wasden earlier requested that 9th Circuit assign a full 11-judge panel to hear Idaho's case in the first place, rather than a three-judge panel; that request was denied. Wasden is not joining with Otter in today's petition. However, his spokesman, Todd Dvorak, said today that Wasden does plan to file an appeal to the U.S. Supreme Court in the coming weeks.

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