University of Idaho College of Law

Steinberg, Michele

Housewright, Meghan

English

Addressing Vacant Property in the Wildland Urban Interface

Santos, Jaime A.

The Perils of Engaging on Social Media for Women Lawyers: Are the Benefits Worth the Risks?

Rose, Katrina C.

After R.M.A. v. Blue Springs, Can All Trans Birth Certificate Statutes Finally Mean Something More?

Yenne, Catherine

Special Session Elections Legislation
Issue Summary
Catherine Yenne
Idaho Law Review
Idaho legislators convened in person at the Statehouse in August 2020 for an
Extraordinary Legislative Session to discuss bills related to the 2020 election and COVID
liability measures.1 One such bill, HB 1, called for the requirement of a physical polling place
during each election, regardless of a state of emergency2—a direct response to Governor Little’s
emergency declaration and the subsequent all-mail election that occurred in May.3 The bill
amended Section 34-1006 of the Idaho Code, which requires county clerks to provide “the
opportunity to vote in person”4 notwithstanding future emergency declarations.5 However, the
bill did not mandate that the polling place be in a convenient location for the public – just that it
exists in the county.6 The fiscal impact of this requirement is unknown and will likely vary
throughout the state.7 The bill did not alter the standard mail-in voting process for precincts with
fewer than one hundred forty registered voters.8
Representative Priscilla Giddings sponsored HB 1 after hearing constituent concerns
regarding troubles receiving their mail-in ballots or subsequent findings that their vote was never
recorded.9 She also stated that her constituents asked her “to oppose universal vote by mail.”10
This was echoed in the testimony to both the House and Senate State Affairs Committees where
members of the public expressed fear of voter fraud11 and said “it is unsafe to do it any other
way.”12
12 Relating to Elections: Hearing on H.B. 1 before the H. State Affairs Comm., supra note 11, (statement of Monica
McKinley).  It is worth noting that fears of voter fraud leading up to the November 2020 election were not realized
11 Relating to Elections: Hearing on H.B. 1 before the H. State Affairs Comm., 65th Leg., 1st Extraordinary Sess.
(Idaho 2020) (statements of Monica McKinley and Wendy Blanton); Relating to Elections: Hearing on H.B. 1
before the S. State Affairs Comm., 65th Leg., 1st Extraordinary Sess. (Idaho 2020) (statement of Nikki Schumacher).
10 Rauzi, supra note 5.
9 Rauzi, supra note 5.
8 IDAHO CODE § 34-308 (2019); H.B. 1.
7 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., 65th Leg., 1st Extraordinary Sess.
(Idaho 2020) (statement of Rep. Giddings).
6 Id.; Idaho Legislature wraps up special session, sends 3 bills to governor’s desk, KTVB (Aug. 26, 2020, 9:45 PM),
https://www.ktvb.com/article/news/local/capitol-watch/idaho-legislature-wraps-up-special-session-sends-three-bills-
to-governors-desk/277-56793cb0-922b-4a8a-bee7-f89fd01d27d0.
5 David Rauzi, HB1 a ‘voter’s insurance policy’ says Rep. Giddings, IDAHO COUNTY FREE PRESS (Sept. 16, 2020),
https://www.idahocountyfreepress.com/news/hb1-a-voter-s-insurance-policy-says-rep-giddings/article_baeb6f76-f7d
0-11ea-80b3-3b40c8a3e2cc.html.
4 H.B. 1.
3 Betsy Z. Russell, Governor signs HB 1 on in-person voting, IDAHO PRESS (Sept. 1, 2020),
https://www.idahopress.com/news/local/governor-signs-hb-1-on-in-person-voting/article_24ce2c61-2783-5027-a105
-01e6e83d56de.html.
2 H.B. 1, 65th Leg., 1st Extraordinary Sess. (Idaho 2020).
1 Ruth Brown, COVID-19 precautions scarce as lawmakers open special session for election, liability issues, IDAHO
STATESMAN (Aug. 24, 2020, 3:52 PM),
https://www.idahostatesman.com/news/politics-government/state-politics/article245194280.html.
1
1
Yenne: Special Session Elections Legislation (Issue Summary)
Published by Digital Commons @ UIdaho Law, 2021
In her testimony to the Senate State Affairs Committee, Representative Giddings
explained that Sections 46-1008 and 46-601 of the Idaho Code empower Governor Little to
suspend certain statutes and regulations during states of emergency, unless otherwise provided in
the statute or regulation.13 The purpose of the bill was to so provide. Generally, the governor may
suspend certain procedural regulations that “prevent, hinder, or delay necessary action” when
dealing with an emergency,14 which he did when he required an all-mail election.15
Representative Giddings further explained, “we really value in-person voting,” and the bill is
necessary to “uphold our traditional voting practices.”16
Committee member Senator Souza distinguished between requesting an absentee ballot
(which would still be permitted after the passage of this bill) and universal mail-in voting (which
is not allowed in Idaho).17 Other states, like Washington and Oregon, automatically mail ballots
to all registered voters,18 eliminating the need for in-person polling places and to request an
absentee ballot from the Secretary of State’s Office.19 The only other comment came from
Senator Stennett who asked what would happen if a polling place was flooded or otherwise
unusable.20 Representative Giddings explained that the response would depend on the
emergency, and there may be another polling place that the voter could use.21
21 Relating to Elections: Hearing on H.B.1 before the S. State Affairs Comm., supra note 11, (statement of Rep.
Giddings).
20 Relating to Elections: Hearing on H.B.1 before the S. State Affairs Comm., supra note 11, (statement of Sen.
Stennett).
19 Absentee Voter Information, IDAHO VOTES, https://idahovotes.gov/absentee-voter-information/ (last visited Feb. 12,
2021).
18 Michael D. Hernandez, All-Mail Elections, NAT’L CONF. OF STATE LEGISLATURES (Sept. 2014),
https://www.ncsl.org/research/elections-and-campaigns/all-mail-elections635457869.aspx.
17 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11, (statement of Sen.
Souza). She, and constituents who testified, also suggested that the bill was presented in response to events around
the country and the strong need to maintain in-person voting. Id.; Relating to Elections: Hearing on H.B.1 before the
S. State Affairs Comm., supra note 11 (statements of Charity Majors and Nikki Schumacher); Relating to Elections:
Hearing on H.B.1 before the H. State Affairs Comm., supra note 11 (statement of Wendy Blanton); Joey Prechtl,
Don’t expect Idaho to move to mail-in-only voting after May primary, KTVB (June 3, 2020, 8:06 PM),
https://www.ktvb.com/article/news/politics/elections/dont-expect-idaho-to-move-to-mail-in-absentee-voting-after-m
ay-primary-november-election/277-aa043579-f326-42c7-a759-54ecce7c1f44 (explaining that regardless of the
record turnout in the all-mail May 2020 election, there is only “a slim chance ... that the state will move to
all-absentee voting in the future”) due to Idaho’s traditional tendencies).
16 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11, (statement of Rep.
Giddings).
15 Idaho’s primary election to remain on May 19, will be conducted by mail, OFFICE OF THE GOVERNOR (Mar. 30,
2020), https://gov.idaho.gov/pressrelease/idahos-primary-election-to-remain-on-may-19-will-be-conducted-by-mail/.
14 IDAHO CODE § 46-1008(5)(a) (2016). Section 46-601 is a similar provision, but governs exclusively the governor’s
authority to enact martial law during states of emergency. IDAHO CODE § 46-601 (2009).
13 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11, (statement of Rep.
Giddings).
in Idaho where the Secretary of State’s Office reported after the election “14 or 15 reports of potential fraud,” nearly
all of which “will end up not being fraudulent.” Election Official: Barely a hint of voting fraud in Idaho, KTVB
(Nov. 25, 2020, 7:07 AM),
https://www.ktvb.com/article/news/politics/elections/voter-fraud-idaho-ballots-election-officials/277-74003229-396
3-4bf6-8769-11553ed7ccc3. This figure is from a total of 880,000 ballots cast, making questionable .00001705% of
ballots. Id.
2
2
Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 5, Art. 1
https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss5/1
The bill passed through both State Affairs Committees without further discussion and
both released the bill to the Legislature with a do-pass recommendation.22 It received 67
affirmative votes in the House and 33 affirmative votes in the Senate.23
Judicial overturn of the bill appears unlikely. Though COVID-related litigation is
anything but settled, courts have been fairly deferential to legislative bodies to determine their
local responses to COVID-19.24 And, HB 1 conflicts neither with the governor’s ability to
declare states of emergency25 nor the Idaho Constitution’s broad allowance for the Legislature’s
prescription of “qualifications, limitations, and conditions for the right of suffrage.”26 And, as
Senator Souza clarified, voters may continue to request absentee ballots if they do not wish to
vote in-person.27
27 Relating to Elections: Hearing on H.B. 1 before the S. Comm. on State Affairs, supra note 11, (statement of
Senator Souza).
26 IDAHO CONST. art. VI, § 4.
25 Compare H.B. 1, with Idaho Code § 46-1008.
24 E.g., Little v. Reclaim Idaho, 140 S. Ct. 2616 (2020); Robert Barnes, Supreme Court again splits on
coronavirus-related election issue, WASH. POST (July 30, 2020, 6:02 PM),
https://www.washingtonpost.com/politics/courts_law/supreme-court-reform-idaho-november-election/2020/07/30/e1
568da4-d2a9-11ea-9038-af089b63ac21_story.html.
23 2020 Extraordinary Session Legislation: House Bill 1, IDAHO LEGISLATURE,
https://legislature.idaho.gov/sessioninfo/2020spcl/legislation/h0001/ (last visited Feb. 2, 2021).
22 Relating to Elections: Hearing on H.B.1 before the H. State Affairs Comm., supra note 11; Relating to Elections:
Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11.
3
3
Yenne: Special Session Elections Legislation (Issue Summary)
Published by Digital Commons @ UIdaho Law, 2021


Special Session Elections Legislation (Issue Summary)

Rumel, John

Eller v. ISP and the State of Whistleblower Protections in Idaho
Practitioner Comment
By John Rumel
Professor, University of Idaho College of Law
When esteemed employee-side attorney and Plaintiff Brandon Eller’s lawyer Erika Birch
asked me if I would be willing to prepare an amicus curiae brief for the National Whistleblower
Center supporting Idaho State Police Officer Eller’s appeal to the Idaho Supreme Court, I was
delighted to do so. Prior to becoming a full-time law professor, I had worked for many years
representing Idaho public employees—specifically, teachers and other educators—in litigation
and appeals as General Counsel for the Idaho Education Association, Idaho’s statewide teachers’
union.  In addition, I was fortunate to continue to teach and publish in the areas that were
germane to Mr. Eller’s appeal—Workplace Law, with a fair amount of focus on public sector
employment, and Remedies.  Indeed, the issue that the National Whistleblower Center asked me
to address—whether a public sector employee who proves liability under the Idaho Protection of
Public Employees Act (“Whistleblower Act” or “Act”), Idaho Code Section 6-2101 and
following, is entitled to recover non-economic damages, i.e. damages for emotional distress or
pain and suffering, from his public employer under the damages provisions of the Act—was at
the intersection of two areas of law about which I have an abiding interest.
The above-described issue was simultaneously narrow and broad. The issue was narrow
in that it raised a discrete issue of Idaho public sector employment law and represented only one
of several major issues posed by Mr. Eller and his former employer, the Idaho State Police, on
the appeal.  The issue was broad, however, in that, for purposes of the amicus brief, which was
designed to complement the fine work done by Mr. Eller’s attorneys in briefing his case, it
required a survey and analysis of the law nationally concerning a whistleblower plaintiff’s right
to recover non-economic damages, as well as a policy-driven view concerning the reasons why a
plaintiff should be entitled to recover emotional distress and pain and suffering damages when
proven in a whistleblower case.
As it turned out, Idaho’s Whistleblower Act supported Mr. Eller’s and other plaintiffs’
right to recover non-economic damages from public sector employers upon proof of liability
under the Act and proof of non-economic harm caused by the violation. In addition, the case law
interpreting whistleblower statutes across the United States almost uniformly views such statutes
as remedial provisions, construes those statutes broadly to further their remedial purposes, and
awards non-economic damages to plaintiffs as well.
The Idaho Supreme Court’s decisions in Eller and Smith v. Glenns Ferry Highway
District are important for reasons beyond the mere application of the Whistleblower Act itself.
Prior to decisions by the United States and Idaho Supreme Courts in the past few years, Idaho
public employees pursuing Whistleblower Act claims also could assert claims for violation of
freedom of speech rights under First Amendment and claims for wrongful discharge in
1
Rumel: Eller v. ISP and the State of Whistleblower Protections in Idaho
Published by Digital Commons @ UIdaho Law, 2021
contravention of public policy under state law.  However, in Garcetti v. Ceballos, 547 U.S. 410
(2006), the United States Supreme Court held that public employees who speak on matters of
public concern are not protected under the First Amendment from retaliation by their employers
if the speech is part of their official job duties. In addition, in Van v. Portneuf Medical Center,
147 Idaho 552, 212 P.3d 982 (2009), the case relied upon by Idaho Supreme Court in Eller to
hold that Whistleblower Act claims supplant claims by public employees for negligent infliction
of emotional distress, the Idaho high court held that the Whistleblower Act supplants common
claims by those same public employees for wrongful discharge in contravention of public policy.
As such, given these relatively recent judicial limitations on alternative legal claims by public
employees suffering retaliation at the hands of public employers, the Idaho Supreme Court’s
recognition that the Whistleblower Act provides public employees, like Mr. Eller and Ms. Smith,
with the full panoply of remedies was even more imperative.
But what of the Idaho Legislature’s decision in House Bill 583 to immediately impose
caps on non-economic damages recovery under the Whistleblower Act in the wake of the Idaho
Supreme Court’s decision in Eller?  More to the point, is that recent legislative enactment subject
to viable constitutional challenge?
Certainly, the Legislature’s decision to impose caps on non-economic damages recovery
under the Idaho Tort Claims Act (“ITCA”) has withstood state constitutional challenges based on
right to jury trial, impermissible special legislation, and separation of powers grounds. Kirkland
v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115 (2000). However, it remains to be
seen whether the Legislature’s extension of those ITCA caps to limit non-economic damages
recovery under the Whistleblower Act, which discriminates against public employee plaintiffs
who receive higher, rather than lower, non-economic damages awards, will survive intermediate
scrutiny under the state equal protection clause. See Jones v. State Board of Medicine, 97 Idaho
859, 555 P.2d 399 (1976) (remanding matter to trial court to apply intermediate scrutiny to equal
protection challenge to caps on non-economic damages in medical malpractice actions).
At the very least, though, it is ironic that the Legislature originally enacted the
Whistleblower Act for the purpose, among other things, of protecting public employees who
report “waste of public funds, property or manpower,” Idaho Code § 6-2104(1), but was quick to
enact an amendment to the Act which disincentivizes public employees and their attorneys from
pursuing Whistleblower Act cases by limiting non-economic damages recoveries on the grounds
that capping non-economic damages in those cases “may present a positive fiscal impact.” HB
583, Statement of Purpose/Fiscal Note.
Thus, although the Idaho Supreme Court laudably concluded in Eller that non-economic
damages are recoverable by Whistleblower Act plaintiffs, legislative fiat limited the full effect of
the court’s decision.  Time will tell whether the Legislature’s questionable policy reaction to the
Eller decision will be subject to successful constitutional challenge in Idaho courts.
2
Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 6, Art. 3
https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss6/3


Eller v. ISP and the State of Whistleblower Protections in Idaho (Practitioner Comment)

Stark, Paul J.

Idaho’s Coronavirus Limited Immunity Act
Practitioner Comment1
by Paul Stark
General Counsel, Idaho Education Association
During the debate on the bill that would become the Coronavirus Limited Immunity
Act, the proponents of the bill argued the need for broad liability protection from tort liability
related to the transmission of coronavirus.  Much of the testimony in favor of immunity from
civil liability predicted a massive number of lawsuits heading to the courts and the dire need
for protection.  What we have learned, however, is that the need for such immunity never
came to fruition.  In fact, most experts report a surprising lack of lawsuits related to
coronavirus nationwide.
According to the American Bar Association, the number of tort claims filed in relation to
coronavirus in 2020 were far less than was predicted. “Despite predictions made in the early
months of the coronavirus pandemic, lawsuits alleging that COVID-19 caused physical or
economic harm were limited in 2020.”2 According to Lex Machina’s annual report, “Out of
the 173 torts cases caused by COVID-19 filed through 2020 Q3, most are negligence cases
against cruise lines.”3 It is important to note here that the Lex Machina report was through
the third quarter of 2020, or September.  This means that even before legislation such as the
Coronavirus Limited Immunity Act, the nation was not seeing the tort lawsuits as predicted.
According to Law.com, “Lawsuits alleging that COVID-19 caused harm, both economically
and physically, did not reach the stratospheric proportions once predicted at the start of the
pandemic.”4 Even the Idaho Freedom Foundation’s prediction about increased lawsuits if the
bill was passed was dead wrong. “Legislation will be introduced during the upcoming special
session that supporters say will protect businesses from Covid-19 lawsuits. Supporters are
wrong: If anything, the legislation will invite lawsuits, especially those aimed at small
businesses.”5
In short, the fear of coronavirus-related lawsuits emphatically argued during the
extraordinary session of August 2020 was just that: fear.  Now after many months of data and
Idaho showing some of the highest numbers of coronavirus cases since the beginning of the
pandemic, we are still not seeing the lawsuits that were predicted in August.
What we have seen, however, is that once the Coronavirus Limited Immunity Act was
enacted, several school districts throughout Idaho immediately reduced efforts to protect
students and staff by the downgrading safety protocols and procedures.  Upon passage of this
immunity legislation, several school districts changed their reopening plans with reduced
5 Wayne Hoffman, COVID-19 Immunity Legislation Will Produce Lots of Lawsuits, Idaho Freedom Foundation
(Aug. 21, 2020), https://idahofreedom.org/covid-19-immunity-legislation-will-produce-lots-of-lawsuits/
4 See Amanda Bronstad, Lawsuits Filed in 2020 over COVID-19 Were Diverse, but Limited, LAW.COM (Dec. 29,
2020, 3:49 PM),
https://www.law.com/2020/12/29/lawsuits-filed-in-2020-over-covid-19-were-diverse-but-limited/.
3 Lex Machina, supra note 2.
2 Amanda Robert, What Types of Lawsuits Were Filed over COVID-19 in 2020?, ABA JOURNAL (Jan. 4, 2021,
1:15 PM),
https://www.abajournal.com/news/article/law-firms-schools-identify-lawsuits-filed-over-covid-19-in-2020; see
also Lex Machina, Lex Machina Releases 2020 Torts Litigation Report, CISION PR NEWSWIRE (Nov. 19, 2020,
11:00 AM),
https://www.prnewswire.com/news-releases/lex-machina-releases-2020-torts-litigation-report-301177161.html?t
c=eml_cleartime.
1 The text of this comment is taken from a letter written by Paul Stark to the Idaho House Judiciary, Rules &
Administration Committee on Jan. 27, 2021, as written testimony regarding the Coronavirus Limited Immunity
Act, which the Idaho Legislature passed during its August 2020 extraordinary session.
1
Stark: Idaho’s Coronavirus Limited Immunity Act (Practitioner Comment)
Published by Digital Commons @ UIdaho Law, 2021
safety procedures.  The Idaho State Department of Education worked with all interested
parties to develop the Idaho Back to School Framework as a tool for reopening and safety
measures.  After the passage of the Coronavirus Limited Immunity Act, however, we
witnessed many school districts throughout the state disregard the Back to School
Framework.
Most Idaho school teachers signed a contract in late spring and early summer for teaching
in the 2020-2021 school year.  These teachers, when signing their individual contracts, relied
upon the promises made by school districts to have fidelity with the adopted reopening plans
in place at the time of the signing those contracts. Indeed, those reopening plans like all local
board policies are incorporated and made part of the individual teacher contracts.  Many
educators then witnessed those reopening plans (upon which they relied) be quickly
disregarded once the Coronavirus Limited Immunity Act was passed.  Safety measures in
some locations took a backseat, once legal accountability was reduced through this grant of
immunity.  Under this law, only in the most extreme of situations would a school district ever
be liable, which consequently gave license to put individual students and staff at risk.  We
have heard reports of numerous educators contracting the virus because of the reduced safety
measures, as well as deaths.
It should be noted that this is not true in every school district.  Indeed, a great number of
school districts have done the right thing by their students and staff.  We applaud those school
districts where responsible actions have continued despite the granting of broad immunity. It
is unfortunate, however, to see some educators risking the health of themselves and their
families as a result of this legislation.
On behalf of the thousands of educators represented by the Idaho Education Association,
we ask that the Coronavirus Limited Immunity Act be allowed to expire on July 1, 2021.  The
basis for the immunity in the first place has not materialized.  The negative effects of reduced
accountability has, in fact, materialized in some locations.  With the increased availability of
several vaccine options becoming more and more available every day, there is simply no
reason to continue with this harmful legislation.
2
Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 3, Art. 3
https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss3/3


Idaho’s Coronavirus Limited Immunity Act (Practitioner Comment)

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9283/thumbnail.jp

State v. McDermott Clerk\u27s Record 1 Dckt. 47642

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9289/thumbnail.jp

State v. Amstutz  Appellant\u27s Reply Brief Dckt. 47695

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9354/thumbnail.jp

Byrd v. Idaho State Board of Land Commissioners Appellant\u27s Reply Brief Dckt. 48042

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9358/thumbnail.jp

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Addressing Vacant Property in the Wildland Urban Interface

The Perils of Engaging on Social Media for Women Lawyers: Are the Benefits Worth the Risks?

After R.M.A. v. Blue Springs, Can All Trans Birth Certificate Statutes Finally Mean Something More?

Special Session Elections Legislation (Issue Summary)

Eller v. ISP and the State of Whistleblower Protections in Idaho (Practitioner Comment)

Idaho’s Coronavirus Limited Immunity Act (Practitioner Comment)

State v. McDermott Clerk\u27s Record 1 Dckt. 47642

State v. Amstutz Appellant\u27s Reply Brief Dckt. 47695

Byrd v. Idaho State Board of Land Commissioners Appellant\u27s Reply Brief Dckt. 48042

State v. Casper Amended Appellant\u27s Brief Dckt. 48068

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