House says ITD land sale was improper, accuses “collusion” in lawsuit

This file photo of the Idaho Transportation Department's old State Street headquarters in Boise was taken March 21, 2021, before the building flooded. (Otto Kitsinger for Idaho Capital Sun)

The Idaho Transportation Department campus in Boise was never properly put up for sale, House Speaker Mike Moyle argues in new court filings this week that also indirectly accuse Gov. Brad Little of colluding to undermine the Attorney General and the Legislature in the high-profile lawsuit.

Earlier this year, lawmakers used language in two budget bills to revoke authority from ITD and the Department of Administration to dispose of the 44-acre campus. The developers who sought to purchase the land then filed suit, calling the budgets unconstitutional.

Now, the Legislature says that the state should never have put the property on the market in the first place, arguing the Idaho Transportation Board did not properly follow the surplus property statute that is central to the whole legal conflagration.

The May 29th filing alleges that sale of the State Street campus was based on real estate market conditions and long-term strategic planning, not on the usefulness of the land as required by law.

The Idaho Transportation Department vacated its historic Boise headquarters in January 2022, in a move that was accelerated after a flood damaged all three floors of the main building. The Idaho Transportation Board, a separate entity that oversees ITD, passed a resolution declaring the campus as surplus property in August 2022. The Board of Examiners then automatically took possession of the site, and the Department of Administration began disposal and sale procedures.

“Contrary to the requirements of [the statute], the ITD Board’s resolution contained no declaration that the State Street Property was not needed or that it was unsuitable for its purposes. The resolution merely included an observation that one building on the extensive property required renovation,” Moyle’s attorneys argue on behalf of the Legislature.

Divided legal representation

The Speaker of the House and the Senate President Pro Tempore have individual authority to intervene on behalf of the entire Legislature when a case involves the constitutionality of a bill.

Those arguments are different than those of two other attorneys who have already weighed in.

In a separate filing on behalf of the state and the Board of Examiners, Attorney General Raúl Labrador argued that the property was rendered no longer surplus upon passage of the budgets.

Meanwhile, Little has appointed a private attorney to represent ITD and the Department of Administration.

“The role of the Attorney General is to faithfully and competently defend the laws of Idaho, passed by the people’s elected representatives. And the role of the Governor is to make sure Idaho’s laws are properly executed. That’s where our jobs start and stop,” Labrador’s office said in a statement Thursday. “Regardless of the Governor’s reasons, the Attorney General refuses to play games with this litigation and will continue to defend Idaho’s laws in this case on behalf of the State.”

Joan Callahan, the private attorney hired by Little, argues the agencies need “clarity and direction” from the court on whether surplus property sales are subject to review through the Legislature’s appropriation process, as well as whether ITD has authority to move forward with its budget directive to rehabilitate the headquarters building.

Undermining in the executive branch

In its filing, the Legislature objects to the Idaho Supreme Court possibly stepping into the policymaking arena via court cases coming from the executive branch.

“This Court does not exist to provide direction. This Court exists to render judgments,” the filing states.

The filing specifically points to a case from last year in which the State Athletic Commission and the Division of Occupational and Professional Licenses challenged lawmakers’ changes to the administrative rules process as an unconstitutional separation of powers violation. The court upheld the Legislature’s updated rulemaking procedures in that case.

“This is the second case to come before the Court in less than a year that the House suspects is a feigned or collusive action involving parties in the executive branch,” the Legislature’s attorneys say.

The Legislature also objects to any potential withdrawal of Labrador’s filings on behalf of the state and the Board of Examiners.

“Likewise, the House objects to any effort to remove the Attorney General and his staff as attorneys for the State in this case,” the filing states.

The Board of Examiners – made up of the Governor, Secretary of State, and Attorney General, with the State Controller acting as a non-voting board secretary – hasn’t yet taken a public vote or announced any decisions concerning the lawsuit.

Secretary of State Phil McGrane hopes the Board of Examiners will be removed from the lawsuit, a spokesperson said in a statement to BoiseDev.

The Idaho Supreme Court intends to set oral arguments for late August during its regular fall term.

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