Idaho officials waste millions of taxpayer dollars by passing unconstitutional laws

On June 8, the U.S. District Court for Idaho ordered the state to — yet again — pay over $320,000 in attorneys’ fee to plaintiffs after it unsuccessfully defended an Idaho law prohibiting individuals from changing the gender markers on their birth certificates.

I was a member of the legal team that successfully challenged that anti-transgender birth certificate law. I am also a native, tax-paying Idahoan.

I am incredibly proud of the result my team achieved for our clients and all those affected by the law. I am also proud of the fees we were awarded, which will help my colleagues at Lambda Legal Defense and Education Fund continue fighting for the rights of LGBTQ individuals. But I am also disheartened to know my family and my neighbors will be the ones to — yet again — pick up the tab for the state’s poor legal decisions.

This is not the first time the state has been ordered to pay a plaintiff’s attorneys’ fees after defending an unconstitutional law.

In 2021, Idaho paid $150,000 in legal fees after the Idaho Supreme Court deemed the state’s ballot initiative unconstitutional.

In 2015, Idaho paid nearly $1 million in attorneys’ fees and interests after defending and losing cases over same-sex marriage, abortion and free speech.

These fees come out of Idaho’s “Constitutional Defense Fund,” which is funded by taxpayer money and which has reportedly paid over $3 million in attorneys’ fees to opponents who successfully challenged Idaho’s unconstitutional laws since it was established in 1995.

And these figures include only the fees paid to opponents; they do not include the state’s own attorneys’ fees and defenses costs, including the Legislature’s retention of its own private attorney to — yet again — unsuccessfully defend its unconstitutional laws.

This most recent fee award is particularly troublesome.

First, the policy the anti-transgender birth certificate law codified — of denying individuals the ability to change the gender markers on their birth certificates — had already been challenged and found unconstitutional by a federal court in 2018.

After it was found unconstitutional, the state paid $75,000 in attorneys’ fees to the plaintiffs who had challenged the practice.

Then, before passing the anti-transgender birth certificate law (House Bill 509) in 2020, the Idaho Attorney General’s Office advised the Legislature not only that the law was unconstitutional, but that the law would be challenged, the state would lose and the defense “will likely result in substantial costs to the state.” Ignoring that direct legal advice, the Legislature passed the bill on party-line votes, Gov. Brad Little signed it in to law, and the Idaho Department of Health and Welfare commenced efforts to implement it. Finally, when my team stepped in to block the law from taking effect, the Attorney General’s Office, going against its own prior advice, defended the law.

I am not alone in my opinion. Every so often, whenever the state receives a new legal bill, Idaho’s government watchdogs sound the alarm. We cannot ignore this alarm. More bills are coming, including the bill to cover the cost to challenge Idaho’s transgender sports ban.

Before Idahoans go to the ballot box this November, we should be asking our candidates whether they are going to force taxpayers to continue to pay millions of dollars in attorneys’ fees by passing manifestly unconstitutional laws and then defending those laws, particularly after being specifically advised that a law they are considering is unconstitutional, and, if passed, it will be challenged and found unconstitutional, and the taxpayers will have to pick up the bill.