University of Idaho College of Law

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
12-20-2021 
State v. Walsh Respondent's Brief Dckt. 48888 
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Recommended Citation 
"State v. Walsh Respondent's Brief Dckt. 48888" (2021). Not Reported. 7325. 
https://digitalcommons.law.uidaho.edu/not_reported/7325 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, ID  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
THOMAS WALSH 
 
 Defendant-Appellant. 
 
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) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48888-2021 
 
Ada County 
Case No. CR01-20-24782 
 
 
RESPONDENT’S BRIEF 
 
 Has Thomas Walsh failed to show that the district court abused its sentencing discretion 
when it imposed a sentence of ten years with four years determinate upon his conviction for felony 
DUI? 
 
ARGUMENT 
Walsh Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Following a traffic stop, a Boise police deputy observed a “strong odor of an alcoholic 
beverage emanating from the vehicle” driven by Thomas Walsh.  (PSI, pp. 1, 73.)  Upon asking 
for his driver’s license, Walsh volunteered, “I’ll tell you straight up I had a drink or two.”  (PSI, p. 
76.)  The deputy asked if the aluminum can he had previously seen Walsh drinking from contained 
Electronically Filed
12/20/2021 8:41 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
alcohol and Walsh confirmed it did.  (PSI, p. 76.)  The deputy observed Walsh’s “eyes were 
droopy, glassy and bloodshot,” and “his speech was slightly slurred.”  (PSI, pp. 1, 72-73, 78.)  The 
deputy asked Walsh to participate in Standardized Field Sobriety Tests, which he failed.  (PSI, pp. 
1-2, 74, 76-78.)  The deputy arrested Walsh and acquired a breath sample to measure his Breath 
Alcohol Content, which registered at .206/.196.  (PSI, pp. 2, 78-80.)  Previously convicted of 
felony DUI, police transported Walsh to jail where he was booked, again, for felony DUI.  (PSI, 
p. 2.) 
 The state charged Walsh with felony DUI with a persistent violator enhancement.  (R., pp. 
31-32, 38-39.)  Pursuant to a plea agreement, Walsh pleaded guilty to felony DUI and the state 
dismissed the persistent violator charge.  (R., pp. 50-62.)  The district court imposed a sentence of 
ten years, four fixed, to run concurrently with Walsh’s 2006 sentences for felony DUI and leaving 
the scene of an injury accident (hereafter DUI/Injury Convictions). (R., pp. 71-73.) 
 Walsh filed a timely notice of appeal.  (R., pp. 78-80.) 
 Walsh challenges the district court’s decision to sentence him to an aggregate ten year 
sentence with four years determinate.  Walsh has failed to show an abuse of discretion. 
    
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 
201, 159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 
38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In 
evaluating whether a lower court abused its discretion, the appellate court conducts a four-part 
3 
 
inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of discretion; 
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal 
standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) 
(citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
    
C. Walsh Has Shown No Abuse of the Court’s Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
 The district court’s factual finding and reasoning for its sentence show no abuse of 
discretion.  At the sentencing hearing, the district court considered protection of the community 
(Tr., p. 26, Ls. 21-22), deterrence (Tr., p. 26, Ls. 9-20), and punishment (Tr., p. 26, Ls. 4-8).  The 
district court stated its purpose was not to “get [Walsh] off booze” but to make sure he understood 
4 
 
he “can’t get behind the wheel of a car after [he’d] been drinking.”  (Tr., p. 27, Ls. 4-7.)  The 
district court imposed the fixed portion recommended by the state but considered the 
recommendation “generous” in regards to deterrence and punishment.  (Tr., p. 28, Ls. 15-19.)   
Walsh, the district court found, knew he could go back to prison “for a lot longer than four years.  
And, yet, [he] chose to [drive drunk] anyway.  Spending another four years in prison will hopefully 
get it through [his] head that there are consequences to [his] decisions even when [he’s] drunk 
when [he] make[s] them.”  (Tr., p. 28, Ls. 20-25.)   
 Walsh claims the district court should have retained jurisdiction or imposed a more lenient 
fixed term in light of mitigating factors including his long history of substance abuse, “remorse 
and acceptance of responsibility, his support from family and friends, and his ability to maintain 
gainful employment.”  (Appellant’s Brief, p. 4.)  Walsh’s claims are unpersuasive.   
Walsh asserts he “has never had trouble maintaining steady employment.”  (Appellant’s 
Brief, p. 5.)  The record, however, shows Walsh’s drinking cost him his job.  In late 2018, Recovery 
4 Life informed Walsh’s parole officer that Walsh had received treatment for approximately one 
month from Recovery 4 Life, an outpatient alcohol treatment program, “to prove to [his] employer 
that he is getting assistance.”  (PSI, pp. 4, 53-57.)  Though Walsh told the presentence investigator 
he left his job of ten years “voluntarily because he wanted a change,” it was in fact his problematic 
drinking which his employer said “ultimately … cost him his position.”  (PSI, p. 4.)  His IDOC 
Education Summary shows a nearly six month gap between jobs.  (PSI, p. 65.)   
Appellant also states he “has stayed out of trouble since his release from prison in 2009.”  
(Appellant’s brief, p. 6.)  The record reflects otherwise.  The “cracks in the façade” of Walsh’s 
“successful” time on parole began to show years prior when law enforcement observed Walsh 
intoxicated at a bar in 2014, had contact with him in 2016 while intoxicated, and arrested him in 
5 
 
2018 for disorderly conduct when he drunkenly pounded on the door of a woman’s home at two 
in the morning.  (PSI, pp. 3, 5, 53, 57, 67-68.)  In that event, Walsh ultimately received an infraction 
for trespassing.  (iCourt CR01-18-40564, State v. Walsh; PSI, pp. 4, 53, 55, 57.)  His parole officer 
summarized the incident, stating “Walsh was so intoxicated he could not understand why [Boise 
Police Department] was arresting him or the explanation of what he was doing was frightening the 
woman of the house he was pounding on the door at 2am in the morning!!!”  (PSI, pp. 4, 57.) 
Now  Walsh has committed crimes fueled by his alcohol addiction since he was a 
teenager.  (PSI, pp. 1-3, 8-9, 13-17, 22-25.)  In the 2006 PSI report, Walsh’s mother thought the 
DUI/Injury convictions case had “been a ‘wake-up’ call for her son” yet acknowledged he had 
already “been given multiple chances in the past.”  (PSI, p. 10.)  Fifteen years later, Walsh’s mother 
would write to a judge again, explaining Walsh is “tired of poor choices and … is ready to make 
positive and responsible changes in his life,” pleading for “new treatment programing” for her son.  
(PSI, p. 47.)  Sadly, in the 2002 PSI report, she likewise pleaded that the “consequences of [the 
2001 DUI case], will [e]ffect the financial status and lives of” Walsh’s wife and their new baby.  
(PSI, pp. 18-19.)  “If [Walsh] goes to jail for a period of time, not only can I not afford our house 
all be myself, I’d have to figure out how to get to daycare without a car,” Walsh’s wife told the 
court.  “[Our baby] is also very close to her dad and would surely have a rough time adjusting to 
his absence.”  (PSI, p. 19.)  Twenty years later, in the present case, Walsh’s current romantic 
partner wrote “our children and myself included, rely on [Walsh] as father and spouse for … the 
basic necessities.”  (PSI, p. 48.)  Knowing the consequences of his actions, Walsh continues to 
drink and drive, putting the community at risk and destabilizing his family again and again.   
The present case is Walsh’s fifth felony conviction, three of which are for driving while 
under the influence of alcohol.  (PSI, pp. 2-3, 8-9, 13.)  His other felonies stem from leaving the 
6 
 
scene of an injury accident and grand theft, in which he attempted to steal skis after “drinking a 
couple of beers.”  (PSI, pp. 3, 8, 22.)  His DUI/Injury convictions – in which Walsh drove while 
intoxicated, caused an accident with another vehicle, and fled the scene – resulted in “great bodily 
harm and/or permanent disfigurement” of a mother who was driving with her  son 
and the infant child of a friend.  (PSI, pp. 8-9.)  The victim in that case described Walsh “exiting 
his vehicle and screaming at her,” which was “extremely upsetting to her son.”  (PSI, p. 9.)  The 
infant subsequently experienced seizures, frequent vomiting, and excess fluid on the brain.  (PSI, 
p. 9.)  The infant’s mother could not, at the time, definitively state that her infant’s symptoms were 
related to the collision, but “expressed anger and dismay that anyone with [Walsh’s] extensive 
record would have been driving or had a license.”  (PSI, p. 9.)  Walsh had nearly completed his 
term on parole in that case when he was arrested for the present offense.  (PSI, p. 3.)     
Since entering the criminal justice system, Walsh has been ordered to attend alcohol abuse 
programs, alcohol intervention services, DUI educational classes, numerous mental health 
programs, and a substance abuse treatment program while serving a retained jurisdiction.  (PSI, 
pp. 5, 17, 19, 30-31, 33.)  After his release on parole in 2009, Walsh completed two outpatient 
treatment programs and one inpatient treatment program through the Idaho Department of 
Corrections, outpatient treatment through Easter Seals-Goodwill, and attended Alcoholics 
Anonymous meetings.  (PSI, p. 4-5.)  He asked for, and was denied, the opportunity for another 
retained jurisdiction after his DUI/Injury convictions, and contends the district court should have 
granted a retained jurisdiction in the present case.  (PSI, p. 10; Appellant’s Brief, pp. 1, 4, 6.)  
During the sentencing hearing, Walsh asked the district court for the opportunity for a retained 
jurisdiction as “that one last chance.”  (Tr., p. 25, Ls. 19-21.)  The district court acknowledged 
Walsh’s request and noted it was “unfortunate” Walsh didn’t think about his opportunities when 
7 
 
he was drinking alcohol on what the district court presumed “to be a fairly regular basis between 
at least 2014 and when [Walsh] got caught for [the present] offense.”  (Tr., p. 30, Ls. 8-13.)  
Treatment has always been available to Walsh, but time after time he has chosen to return to 
alcohol to “soothe” himself in times of stress.  (PSI, p. 5; Tr., p. 25, Ls. 11-13.) 
For decades, Walsh has put the public at risk by continuing to drink and get behind the 
wheel of a vehicle.  The loss of his job, family, and freedom has yet to convince Walsh that 
sustained sobriety is his only option to lead a productive, law-abiding life.  Treatment programs 
for alcohol addiction are available for anyone who seeks them, but time after time Walsh has 
decided to drink and drive, putting himself, his family, and his community at risk.  In consideration 
of the need to protect society from his dangerous behavior and the need for punishment and 
deterrence, the district court acted reasonably and upheld its responsibilities when it imposed a ten 
year sentence, four years fixed, upon Walsh.   
    
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 20th day of December, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
  
8 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 20th day of December, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


English

State v. Walsh Respondent\u27s Brief Dckt. 48888

https://digitalcommons.law.uidaho.edu/not_reported/8328/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
11-9-2021 
State v. Laub Respondent's Brief Dckt. 48893 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Laub Respondent's Brief Dckt. 48893" (2021). Not Reported. 7329. 
https://digitalcommons.law.uidaho.edu/not_reported/7329 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, ID  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
SARA MARIE LAUB 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48893-2021 & 48894-2021 
 
Twin Falls County 
Case Nos. CR42-20-8812 & CR42-20-8813 
 
 
RESPONDENT’S BRIEF 
  
Has Sara Marie Laub failed to show that the district court abused its sentencing discretion 
when it imposed aggregate sentences totaling 10 years with four years determinate upon her 
convictions for two counts of accessory to aggravated battery? 
 
ARGUMENT 
Laub Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Sara Marie Laub accompanied her sister as she drove two men to a parking lot.  (PSI, pp. 
2-3.)  The men walked to a nearby house and shot into it, severely wounding a man inside.  (PSI, 
pp. 2-5.)  The men ran back to the car, and Laub and her sister drove them from the scene to a gas 
Electronically Filed
11/9/2021 8:41 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
 
station.  (PSI, pp. 2-3.)  Laub then drove the two males back to their separate residences.  (PSI, pp. 
2-3.)   
 Three days later, another friend named Tyler Parsons texted Laub to come “save him” after 
he shot a mutual friend in the head.  (PSI, pp. 3-4.)  Parsons told Laub that police were conducting 
a raid and that he had outstanding felony warrants and needed help escaping the trailer park where 
he was hiding.  (PSI, p. 4.)  Laub found Parsons during her second attempt to locate him and told 
him to get in her car.  (PSI, p. 4.)  Parsons spent the night at Laub’s residence and the two were 
arrested the following morning.  (PSI, p. 4.)  Despite the gunshot to his head, the victim survived 
his injuries after being life-flighted to a hospital.  (PSI, pp. 3-4). 
 The state charged Laub with accessory to aggravated battery in the first shooting (R., pp. 
43-44) and accessory to aggravated battery in the second shooting (R., pp. 141-42).  Laub pleaded 
guilty.  (R., pp. 77, 170.)  The district court imposed a sentence of five years with four fixed in the 
first case and a consecutive sentence of five years indeterminate in the second case.  (Sent. Tr., 
p.19, Ls. 11-19; R., pp.87-01, 180-83.) 
 Laub filed timely notices of appeal.  (R., pp. 96-97, 184-85.)  Laub also filed a Criminal 
Rule 35 motion in each case and is awaiting the district court’s ruling.  (See iCourt Portal, State v. 
Sara Marie Laub, Twin Falls County No. CR42-20-8812; iCourt Portal, State v. Sara Marie Laub, 
Twin Falls County No. CR42-20-8813.) 
 Laub challenges the district court’s decision to sentence her to five years with four fixed 
for the first charge of accessory to aggravated battery, and five years indeterminate for the second 
charge of aggravated battery, to run consecutively, citing her substance abuse, mental health, 
criminal history, and stated acceptance of responsibility.  (Appellant’s brief, pp. 4-7.)  Laub has 
failed to show an abuse of discretion. 
3 
 
    
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 
201, 159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 
38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In 
evaluating whether a lower court abused its discretion, the appellate court conducts a four-part 
inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of discretion; 
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal 
standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) 
(citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
    
C. Laub Has Shown No Abuse of the Court’s Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
4 
 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
 At the sentencing hearing, the district court recognized the Toohill1 factors, including 
punishment, deterrence, rehabilitation, and “the overall protection of society.”  (Sent. Tr., p. 18, 
Ls. 16-19; p. 19, Ls. 1-8.)  Although Laub did not pull a trigger, the district court acknowledged 
her culpability:  “You were involved.  You were there.  You knew exactly what was going on, and 
you didn’t turn [the gunmen] in.  You pretended like you didn’t know what was going on.  Not 
acceptable at all.”  (Sent. Tr., p. 18, Ls. 11-14.) 
 Laub argues her substance abuse, mental health issues, lack of a serious criminal record, 
and claimed remorse for her actions should have led the district court to order a retained 
jurisdiction or lesser sentence.  (Appellant’s brief, pp. 5-8).  The district court considered these 
factors and did not find them persuasive.  “You can’t go out and get high and hang out with people 
that you know are going to be violent or utilizing guns or making threats to people and then say, 
‘Oh, it wasn’t my fault.  I didn’t know.  I was using drugs.’”  (Sent. Tr., p. 17, L. 24 – p. 18, L. 3.)  
The district court continued, “[Y]ou don’t have a big record, Ms. Laub.  … You’re clearly in need 
of rehabilitative treatment for not only your utilization of controlled substances, but also cognitive 
thinking errors ….”  (Sent. Tr., p. 18, Ls. 15-19.)  During sentencing, Laub took issue with the PSI 
and claimed she took “full responsibility for [her] part in the offenses” and had “sincere empathy 
for the victims.”  (Sent. Tr., p. 2, L. 20 – p. 3, L. 9.)  At the time of the interview, the PSI 
                                            
1 State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).   
5 
 
investigator indicated the opposite and stated Laub “did not take responsibility for her part in the 
crimes and did not express concern for the victims or their families.”  (PSI, pp. 7, 12.)  The district 
court concluded, Laub needed deterrence for “hiding people that are involved in crimes of 
violence, lying to the police about it when asked,” and that “the overall protection of society 
demands a period of incarceration.  I don’t think a rider is the appropriate answer despite the fact 
that you don’t have a large record.”  (Sent. Tr., p. 19, Ls. 3-10.)   
 Despite her young age, Laub is in the “high” risk category to reoffend.  (PSI, p. 5.)  Laub’s 
score is the result, in large part, of her choice of companions and her attitude of indifference.  (PSI, 
pp. 5-7.)  Twice over the course of less than one week, Laub chose to involve herself with seriously 
dangerous people who committed seriously dangerous, violent crimes.  After the first shooting, 
Laub said the shooting “was none of her business,” socialized with the gunmen at a gas station, 
and drove them both home.  (PSI, p. 3.)  After the second shooting, Laub twice attempted to “save” 
Parsons from police detection after she knew he had shot her “friend.”  (PSI, p. 4.)  After 
successfully helping him elude police, Laub returned home with Parsons where they “did laundry 
[and] went to bed.”  (PSI, p. 5.)       
 Laub exhibited callous indifference to the victims and their suffering, one of whom she 
considered her friend.  The sentence imposed on Laub by the district court is within statutory 
limits, reasonable, and supported by the record.  The seriousness and violence of the shootings 
require a message of deterrence to both Laub and the community in general.  Society must be 
protected by such indifference shown to the suffering of innocent victims.        
    
  
6 
 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 9th day of November, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 9th day of November, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Laub Respondent\u27s Brief Dckt. 48893

https://digitalcommons.law.uidaho.edu/not_reported/8329/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
10-26-2021 
State v. Alvarez Respondent's Brief Dckt. 48918 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Alvarez Respondent's Brief Dckt. 48918" (2021). Not Reported. 7330. 
https://digitalcommons.law.uidaho.edu/not_reported/7330 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
MARIO ALBERTO ALVAREZ 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48918-2021 
 
Ada County 
Case No. CR01-20-5746 
 
 
RESPONDENT’S BRIEF 
 
 Has Mario Alberto Alvarez failed to show that the district court abused its sentencing 
discretion when it imposed a unified sentence of 14 years, with four fixed, upon his conviction for 
grand theft by receiving, possessing and/or obtaining control over stolen property? 
 
ARGUMENT 
Alvarez Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Someone stole Steven Vicuna’s driver’s license, Social Security card, and two blank 
checks out of his pickup.  (PSI, pp. 1, 340-42; Tr., p. 104, L. 14 – p. 105, L. 2.) Alvarez used one 
of the stolen blank checks to deposit $1200 into his account.  (PSI, pp. 1-2, 343-46; Tr., p. 105, 
Ls. 2-10; p. 106, L. 20 – p. 107, L. 24.)  Alvarez admitted to depositing the check but told police 
Electronically Filed
10/26/2021 9:06 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
Chancellor Threatt had given him check, which Threatt confirmed.  (PSI, 346-47, 395.)  Alvarez 
and Chancellor were together when Alvarez deposited the check.  (PSI, p. 347.)   
 The state charged Alvarez with grand theft by receiving, possessing, and/or obtaining 
control over stolen property.  (R., pp. 26-27.)  A jury found Alvarez guilty.  (R., p. 107.)  The 
district court imposed a sentence of 14 years with four years fixed.  (R., pp. 134-36.)  Alvarez filed 
a timely notice of appeal. (R., pp. 138-39.) 
 Alvarez challenges the district court’s decision to impose a unified sentence of 14 years, 
with four fixed.  Alvarez has failed to show an abuse of discretion. 
    
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 
201, 159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 
38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  In 
evaluating whether a lower court abused its discretion, the appellate court conducts a four-part 
inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of discretion; 
(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal 
standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) 
(citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
    
  
3 
 
C. Alvarez Has Shown No Abuse of the Court’s Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
 The district court imposed a reasonable sentence, considering the goals of deterrence, 
rehabilitation, punishment, with the protection of society as the most salient in consideration of 
Alvarez.  (Tr., p. 226, L. 23 – p. 227, L. 3.)  The present case is Alvarez’s seventh felony conviction 
in Idaho for crimes of forgery and theft, creating “one victim after another, after another.”  (Tr., p. 
227, Ls. 2-18; PSI, pp. 3-4 (stating this was Alvarez’s sixth felony with a seventh pending)).  The 
district court found it “necessary at this point to construct a sentence that will give society as much 
protection as it can get.”  (Tr., p. 227, Ls. 18-21.) 
 Alvarez argues that mitigating factors including his long history of drug abuse and desire 
for treatment, his mental illness, and his remorse should have moved the court to impose a lesser 
4 
 
sentence.  (Appellant’s brief, pp. 4-5).  Alvarez’s argument is not persuasive.  The district court 
noted, “There have been a number of attempts at rehabilitative measures, and they don’t seem to 
have worked.”  (Tr., p. 228, Ls. 2-5.)  The district court found that the promises and aspirations 
Alvarez made before the district court were promises he had made before other courts.  (Tr., p. 
228, Ls. 5-9.)  The record shows similar promises and stated desire to rehabilitate from 2001 (PSI, 
pp. 154, 170), 2002 (PSI, pp. 74, 82), 2007 (PSI, pp. 8, 14), and 2009 (PSI, pp. 173, 181).  
Continuing, the district court noted that Alvarez has “had opportunities to avail [him]self of the 
kinds of services that [Alvarez is] now asking [the district court] to provide.”  (Tr., p. 228, Ls. 9-
11.)  The district court found Alvarez not a candidate for probation.  (Tr., p. 228, Ls. 12-14.)  
 Alvarez has an extensive criminal history.  Since 1999, he has been charged criminally in 
Idaho dozens of times (PSI, pp. 3-4, 10-11, 76-77, 160-62, 171) with dozens more charges from 
the state of Arizona between 1990 and 1998 (PSI, pp. 78-79, 156-60, 171).  The charges include, 
amongst others, assault, burglary, possession of paraphernalia and controlled substances, failure 
to appear, trespass, theft, and forgery.  (PSI, p. 76-79, 156-61.)  His younger brother – who Alvarez 
described as his “pastor, mentor, best friend,” attempted to help Alvarez multiple times by 
providing him a home, employment, schooling, and support – told a presentence investigator that 
Alvarez considers jail and prison “cake walks,” will brag about how many times he’s been to jail, 
and hoped “the judge understands that [Alvarez] does not respect the law.” (PSI, pp. 96-97, 162-
63, 177, 190.)  He said, “I hold no malice toward [Alvarez], and I love him, but he is unwilling to 
take advantage of the help I have offered him” and that Alvarez had “never faced the consequences 
of his actions.”  (PSI, p. 163)  
 Alvarez has cycled through a revolving door of arrest, prison time, and release, only to be 
arrested months later for new crimes.  In 2007, placed on parole following prison time for his 
5 
 
conviction of possession of a controlled substance, the state charged Alvarez with possession of 
methamphetamine less than two months after his release into the community.  (PSI, p. 8.)  Placed 
on parole in 2008 following prison time for the previous charge, the state charged Alvarez with 
forgery four months after his release into the community.  (PSI, pp. 173, 182.)  In Idaho Dept. of 
Corrections custody until 2014, Alvarez transferred to Arizona under the interstate compact and 
absconded less than a year later, only to be taken into custody in 2015 where he remained in 
continuous IDOC custody until late 2018.  (PSI, p. 4.)  Alvarez committed the present offence less 
than three months following his release.  (PSI, p. 4.)  In the months before his arrest for the present 
offense, Alvarez accrued separate charges of aid/abet petit theft, attempted petit theft, petit theft, 
and grand theft.  (PSI, p. 3-4.)  Unsurprisingly, Alvarez LSI-R score is "high” at 42.  (PSI, p. 2.)         
 Despite the classes, certificates, and multiple resources devoted to his improvement, 
Alvarez has not made changes or taken responsibility for the crimes he has committed.  (PSI, pp. 
62-73, 177, 193-96.)  A presentence investigator wrote Alvarez is “not at all willing to accept 
responsibility for his actions and own up to his behavior. (PSI, p. 16.)  Alvarez’s brother told a 
presentence investigator that Alvarez “has ‘always viewed himself as a victim, whatever happens 
is somebody else’s fault.’”  (PSI, p. 163.)  Alvarez’s parole officer said Alvarez “did not take any 
responsibility at all for his possession / use of drugs.”  (PSI, p. 14.)  Alvarez has not attempted to 
modify his behavior while in jail, either.  Between September 2020 and March 2021, Alvarez had 
ten incident reports while in Ada County custody including assaultive behavior, refusal to comply 
with orders, disrespectfulness, disruptiveness, and fighting.  (PSI, pp. 4, 267-69, 271-73, 275, 279, 
283, 291, 298, 317, 322.)  
 The community is at risk when Alvarez is out of state custody.  He is unable or unwilling 
to modify his behavior to conform to acceptable, legal standards.  Undeterred by the threat of 
6 
 
punishment or in consideration of the harm he causes other, Alvarez continues to create more 
victims.  The district court used proper discretion and considered the totality of all relevant facts 
and circumstances when it imposed sentence.    
    
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 26th day of October, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 26th day of October, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
ELIZABETH ANN ALLRED  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Alvarez Respondent\u27s Brief Dckt. 48918

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/9226/thumbnail.jp

Tenny v. Loomis Armored US, LLC Respondent\u27s Brief Dckt. 48100

Seamon, Richard Henry

UIdaho Law 
Digital Commons @ UIdaho Law 
Articles Faculty Works 
2021 
How the U.S. Constitution Connects with COVID-19 
Richard Henry Seamon 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarship 
 Part of the Constitutional Law Commons 
20 th
e Advocate • September 2021
How the U.S. Constitution Connects with COVID-19
Richard H. Seamon 
very semester, I tell the students in 
my course on constitutional law at 
the University of Idaho College of 
Law that it is a great time to be taking con-
stitutional law. And every semester that 
proves to be true. Recent events during the 
COVID-19 pandemic have raised many 
issues of constitutional law useful for class 
discussion. In the following, I discuss one 
such event: the federal residential eviction 
moratorium. he moratorium arguably 
exceeds the federal government’s statutory 
and constitutional powers. In the follow-
ing discussion of the moratorium’s legal 
vulnerability, you will encounter cases 
that you might remember from your own 
law school course in constitutional law. I 
hope the discussion shows the continuing 
vitality and central relevance of the U.S. 
Constitution to the challenges that con-
front our country today.
Introducing the CDC’s  
eviction moratorium
In the pandemic-relief law known 
as the “CARES Act,” Congress put a six-
month moratorium on certain residential 
evictions.1 Ater that moratorium expired 
in July 2020, Congress did not renew it. 
Instead, a new eviction moratorium was 
put in place by the Centers for Disease 
Control and Prevention (CDC), a federal 
agency within the U.S. Department of 
Health and Human Services.2 he CDC’s 
eviction moratorium expired on July 31, 
2021, despite last minute pressure on the 
White House and Congress to extend it.3 
In light of the looming expiration, the 
Idaho Judicial Branch started a pilot pro-
gram in Ada County that invites landlords 
and tenants in eviction suits to negotiate 
settlement agreements through an online 
portal.4
he CDC eviction moratorium ap-
plied to all residential housing in the 
United States. To get protection under the 
moratorium, a tenant had to show that he 
or she had fallen behind in rent because 
of job loss, a cut in working hours, or ex-
traordinary medical expenses. he tenant 
also had to show that he or she could not 
ind alternative housing other than “con-
gregate” housing like a homeless shelter. A 
landlord who evicted a tenant in violation 
of the moratorium faced up to one year in 
prison and a ine of up to $250,000.5 
he CDC issued the moratorium un-
der the Public Health Service Act. hat 
federal law authorizes the CDC to issue 
“such regulations as in [its] judgment are 
necessary to prevent the introduction, 
transmission, or spread of communicable 
diseases .  .  . from one State .  .  . into any 
other State.”6 he CDC explained that 
the eviction moratorium could limit the 
spread of COVID-19 in three ways. It 
E
th
e Advocate • September 2021 21
he implied powers, in efect, enlarge the  
enumerated powers. his enlargement has been most 
signiicant as applied to Congress’s power to ‘regulate 
Commerce . . . among the several States.’12
“
”
could facilitate self-isolation by people 
who get COVID-19. It could help States 
and local governments implement stay-
at-home orders. Finally, it could prevent 
people from ending up on the street or 
in homeless shelters, where COVID-19 is 
more easily spread.7 
hus, the CDC justiied its eviction 
moratorium as a public health measure. 
hat is important because the U.S. Con-
stitution does not expressly authorize the 
federal government to issue public health 
measures. And so, a student of the U.S. 
because the Constitution gives implied 
(as well as express) powers to Congress. 
he Court based this conclusion partly on 
the Constitution’s Necessary and Proper 
Clause, which the Court interpreted to 
recognize Congress’s power to enact all 
measures that are reasonably necessary to 
execute the enumerated powers.10 
he McCulloch Court held that the cre-
ation of a national bank fell within Con-
gress’s implied powers, as relected in the 
Necessary and Proper Clause. he Court 
reasoned that the bank was a reasonably 
of implied powers combines with Con-
gress’s power to regulate interstate com-
merce and (2) how the Court’s delegation 
doctrine allows Congress to transfer huge 
hunks of its Commerce power to federal 
executive-branch agencies.
Congress’s commerce power
he implied powers of Congress rec-
ognized in McCulloch and relected in 
the Necessary and Proper Clause can be 
exercised only in connection with Con-
gress’s execution of its expressly enumer-
ated powers. he implied powers, in ef-
fect, enlarge the enumerated powers. his 
enlargement has been most signiicant as 
applied to Congress’s power to “regulate 
Commerce . . . among the several States.”12
As enlarged by implied powers, Con-
gress’s Commerce power was held in Unit-
ed States v. Lopez to authorize Congress to 
regulate three categories of activity:
“First, Congress may regulate the use 
of the channels of interstate commerce. 
Second, Congress [may] .  .  . regulate and 
protect the instrumentalities of interstate 
commerce, or persons or things in inter-
state commerce. [.  .  .] Finally, Congress 
[may] . . .  regulate . . . those activities that 
substantially afect interstate commerce.”13
he third category is reachable by 
Congress largely because of its implied 
powers. he classic case illustrating this 
is Wickard v. Filburn.14 here, the fed-
eral government ined Roscoe Filburn for 
growing more wheat than allowed under a 
federal statute. Mr. Filburn consumed all 
of this excess wheat on his own farm. he 
Court upheld Congress’s power to regu-
late a farmer’s growing his own wheat for 
his own on-farm consumption. he Court 
reasoned, in part, that regulation of this 
type of activity was necessary to protect 
Congress’s ability to regulate interstate 
commerce in wheat. It was thus justiied 
as a means that was reasonably necessary 
to executing the Commerce power over 
the commodity. To support this conclu-
sion, the Wickard Court cited McCulloch 
v. Maryland.15
Today, we would say that Congress 
could regulate Farmer Filburn’s growing 
of “excess wheat” for his own use because 
that activity—when considered in the ag-
gregate—substantially afected interstate 
Constitution naturally wonders whether 
it authorizes the CDC’s eviction morato-
rium. his question of the federal govern-
ment’s power involves three issues that are 
covered in a law school course on consti-
tutional law and are discussed as follows: 
the limited powers of the federal govern-
ment; Congress’s power over interstate 
commerce; and the delegation doctrine.
The limited powers of  
the federal government
he U.S. Constitution creates a fed-
eral government of limited powers. But to 
grasp this point fully, law students must 
learn that the limited powers granted by 
the Constitution can include implied pow-
ers under the U.S. Supreme Court’s deci-
sion in McCulloch v. Maryland.8 
In McCulloch, the Court held that 
Congress had the power to create a na-
tional bank. he Court acknowledged 
that “[a]mong the enumerated powers, we 
do not ind that of establishing a bank.”9 
hat was not fatal, the Court concluded, 
necessary way for Congress to execute 
various enumerated powers. hose pow-
ers included the powers to lay and collect 
taxes (with the national bank serving as 
a depository of those taxes); to borrow 
money (with the bank serving as the fed-
eral government’s lender); and to regulate 
commerce (with the bank’s notes serving 
as a form of national currency). And so, 
ater all, the national bank was a “neces-
sary and proper” way of executing several 
enumerated powers.
he McCulloch Court’s recognition 
of “implied powers” underlay the federal 
government’s expansion in the twentieth 
century. As one website says, “Ultimately, 
McCulloch v. Maryland made possible 
the rise of . . . ‘the administrative state,’ in 
which the government employs oicials 
to oversee many aspects of American life, 
from environmental issues to labor dis-
putes.”11 his conclusion is incomplete, 
though. To appreciate the connection be-
tween McCulloch and today’s “administra-
tive state,” the student of constitutional law 
must learn (1) how McCulloch’s concept 
22 th
e Advocate • September 2021
commerce in wheat and thus fell within 
Congress’s Commerce power (as enlarged 
by the implied powers relected in the 
Necessary and Proper Clause). he Com-
merce power, as ampliied by the Neces-
sary and Proper Clause, underlies most 
federal statutes on the books today, in-
cluding federal anti-discrimination laws, 
environmental protection laws, and, most 
relevant here, public health laws.
So far, we’ve established Congress’s 
power to regulate activity that substan-
tially afects interstate commerce. We still 
must connect that power of Congress to 
federal executive-branch agencies like the 
CDC. he connection lies in the delega-
tion doctrine.
The delegation doctrine
he delegation doctrine allows Con-
gress to authorize federal agencies to 
make rules that have the “force and efect 
of law.”16 hese rules are called “legislative 
rules” to indicate that their legal efect is 
tantamount to that of federal statutes. 
Early on, the U.S. Supreme Court re-
jected the argument that, by allowing 
federal agencies to make legislative rules, 
Congress was abdicating its duty to exer-
cise “[a]ll legislative Powers” vested in it 
by the U.S. Constitution.17 he Court takes 
the position that federal agencies exercise 
only a “quasi-legislative,” not a purely leg-
islative power.18 he Court insists, how-
ever, that in granting this power, Congress 
must prescribe an “intelligible principle” 
for the agency to follow when making leg-
islative rules. hus, the federal statute that 
grants rulemaking power must put com-
prehensible (“intelligible”) restrictions on 
that power.
In applying the “intelligible principle” 
standard, the Court has upheld exception-
ally broad grants of rulemaking power to 
federal agencies. For example, the Court 
upheld the federal statute that allows the 
Occupational Safety and Health Adminis-
tration (OSHA) to make workplace safety 
rules. he statute requires the rules to be 
“reasonably necessary or appropriate to 
provide safe or healthful employment 
[which] most adequately assure[], to the 
extent feasible, on the basis of the best 
available evidence, that no employee will 
sufer material impairment of health.”19 
It does not matter that this statute is 
full of fuzzy wiggle words like “reasonably 
necessary or appropriate,” “adequately as-
sure,” “to the extent feasible,” and “materi-
al impairment.” Nor does it matter that the 
rules cover all businesses that are engaged 
in interstate commerce or whose activities 
substantially afect interstate commerce. 
Under the Court’s delegation doctrine, 
OSHA can prescribe national workplace 
safety policy for almost the entire private 
sector.
Revisiting the CDC’s  
eviction moratorium
At this point, we can fully analyze the 
CDC’s power to issue the eviction morato-
rium. Analysis entails three questions:
1. Does the nationwide eviction mora-
torium fall within the CDC’s power under 
the Public Health Service Act? If so, two 
further questions arise:
2. Does the Act violate the delegation 
doctrine?
3. Does the Act fall within Congress’s 
power?
Only questions two and three are 
questions of constitutional law. Question 
one involves statutory interpretation, but 
it is inluenced by constitutional concerns, 
as shown in a recent decision by the U.S. 
Court of Appeals for the Sixth Circuit, Ti-
ger Lily, LLC v. U.S. Dep’t of Housing and 
Urban Development.20
he court in Tiger Lily held that the 
CDC’s eviction moratorium was not au-
thorized by the Public Health Service Act. 
he court relied partly on its belief that the 
Act “could raise a nondelegation problem” 
if it were interpreted to authorize the mor-
atorium. he court explained that such an 
interpretation “would grant the CDC di-
rector near-dictatorial power for the du-
ration of the pandemic.”21 he apparently 
limitless scope of power entailed by the 
CDC’s favored interpretation would mean 
that the statute necessarily lacks an “intel-
ligible principle” restraining agency dis-
cretion. As such, the statute would violate 
the nondelegation doctrine if the CDC’s 
interpretation were adopted.
he Tiger Lilly court also believed that 
an expansive interpretation of the Act 
urged by the CDC would “push the limit 
of congressional authority” and for that 
reason, too, must be avoided.22 he “con-
gressional authority” that the court had in 
mind was Congress’s authority under the 
Commerce Clause. Although the CDC 
argued that the moratorium regulated ac-
tivity that substantially afects interstate 
commerce, the argument was a stretch in 
the court’s view. hat was so for three rea-
sons.
First, the eviction moratorium did not 
regulate a commercial transaction like the 
rental of housing. Indeed, it didn’t alter 
tenants’ contractual obligation to pay rent. 
It just restricted a legal remedy—one that 
usually would be sought in a state court—
for nonpayment. Nor was the moratorium 
a reasonably necessary part of a broader 
federal scheme for regulating the real es-
tate market.
Second, the connection between the 
eviction moratorium and the interstate 
movement of people was highly attenu-
ated. he Texas court found that, while 
about 15% of residential moves are inter-
state, only a small percentage of residen-
tial moves result from evictions. Marital 
breakups account for 10 times as many 
residential moves as do evictions, and yet 
it’s doubtful that the federal government 
can regulate divorce, as family law is an 
area of traditional state concern.23 
hird, a federal eviction moratorium 
is unprecedented. In the past, eviction 
moratoria have been thought to fall with-
in the States’ police power.24 he federal 
government’s failure to exercise a power 
that would be so appealing in response to 
events like the Spanish Flu of 1919-1920 
and the Great Depression tends to suggest 
that the power does not exist.
hus, the Sixth Circuit’s decision in 
Tiger Lily implies that the moratorium’s 
constitutionality is dubious because of the 
nondelegation doctrine and the limits on 
Congress’s Commerce power.
he D.C. Circuit, however, came to 
opposite conclusions in Alabama Ass’n of 
Realtors v. U.S. Dep’t of Health and Hu-
man Services.25 he D.C. Circuit’s decision 
has limited precedential value, as it was a 
short per curiam opinion issued on ap-
peal from a district court’s grant of a stay 
pending appeal. Even so, the decision is 
signiicant because of its conclusions that 
the eviction moratorium (1) “falls within 
the plain text” of the Public Health Service 
th
e Advocate • September 2021 23
Act; (2) the Act, in turn, falls within Con-
gress’s “well-established authority to regu-
late rental housing transactions because 
they substantially afect interstate com-
merce;” and (3) the Act complies with the 
nondelegation doctrine because it “pro-
vides an intelligible principle that guides 
the [CDC’s] authority.”26 hese quotations 
from the D.C. Circuit’s opinion make clear 
that it does not see eye-to-eye with the 
Sixth Circuit when it comes to the validity, 
including the constitutionality of the evic-
tion moratorium.
his disagreement between the cir-
cuits is unlikely to be resolved by the U.S. 
Supreme Court in the near term. he ex-
piration of the CDC eviction moratorium 
probably renders pending legal challenges 
to it moot. But the federal government’s 
power under the U.S. Constitution to im-
pose such a moratorium remains an im-
portant issue that could ultimately draw 
the Court’s attention. And the issue could 
arise again if COVID-19 lares up or some 
other crisis causes the federal government 
to reinstitute a moratorium.
Conclusion
Even if we consider only the federal 
government’s power to issue the residen-
tial mortgage moratorium, we delve into 
topics that consume several weeks of the 
constitutional law course. And this article 
has not even addressed the question of 
whether that exercise of power violates in-
dividual constitutional rights, such as the 
right to just compensation for takings of 
private property.27 I hope this article none-
theless suices to show that the U.S. Con-
stitution remains at the center of matters 
of vital public interest, and that the law 
school course on constitutional law begins 
to equip students to analyze those matters.
Richard H. Seamon is a 
professor at the University 
of Idaho College of Law who 
teaches constitutional law 
and other subjects. He wel-
comes your feedback at rich-
ard@uidaho.edu. 
Endnotes
1. Coronavirus Aid, Relief, and Economic Security Act, 
Pub. L. No. 116-136, § 4024, 134 Stat. 281, 492–93 
(2020).
2. Temporary Halt in Residential Evictions to Prevent 
the Further Spread of COVID-19, 85 Fed. Reg. 55,292 
(Sept. 4, 2020).
3. CDC, Temporary Halt in Residential Evictions to Pre-
vent the Further Spread of COVID-19 (updated June 
29, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/covid-eviction-declaration.html; Andrew Ack-
erman & Siobhan Hughes, House Adjourns Without 
Extending Covid-19 Eviction Moratorium, Wall St. 
J., July 30, 2021, https://www.wsj.com/articles/
house-adjourns-without-extending-covid-19-eviction-
moratorium-11627684248?mod=searchresults_
pos1&page=1. 
4. State of Idaho Judicial Branch, Press Release: New 
Tool Allows Landlord, Tenants to Resolve Eviction Cas-
es Online (July 7, 2021), https://www.google.com/url
?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2a
hUKEwjqteXk_YvyAhVSqJ4KHQ8OBgsQFjACegQIBx
AD&url=https%3A%2F%2Fisc.idaho.gov%2Fsites%
2Fdefault%2Files%2Fpress-release-documents%2F
20210707%2520New%2520Tool%2520Allows%252
0Landlords%252C%2520Tenants%2520to%2520R
esolve%2520Eviction%2520Cases%2520Online.pdf
&usg=AOvVaw3tclM8I5CVbyLQVqpvA0Xc 
5. Id. at 55,296–97.
6. 42 U.S.C. § 264(a). The statute grants rulemaking 
power to the Surgeon General, but that power has 
been transferred to the CDC. Ala. Ass’n of Realtors 
v. U.S. Dep’t of Health & Human Servs., No. 21-5093, 
2021 WL 2221646, at *1 n.1 (D.C. Cir. June 2, 2021).
7. 85 Fed. Reg. at 55,292.
8. 17 U.S. (4 Wheat.) 316 (1819).
9. Id. at 406.
10. U.S. Const. art, I, § 8, cl. 18.
11. History.com Editors, McCulloch v. Maryland, histo-
ry.com (updated June 1, 2021), https://www.history.
com/topics/united-states-constitution/mcculloch-v-
maryland. 
12. U.S. Const. art. I, § 8, cl. 3.
13. 514 U.S. 549, 558 (1995).
14. 317 U.S. 111 (1942).
15. Wickard, 317 U.S. at 129 n.29.
16. E.g., PDR Network, LLC v. Carlton & Harris Chiro-
practic, Inc., 139 S. Ct. 2051, 2055 (2019).
17. U.S. Const. art. I, § 1.
18. E.g., Chrysler Corp. v. Brown, 441 U.S. 281, 302 
(1979).
19. Industrial Union v. American Petroleum Institute, 
448 U.S. 607, 612 (1980) (quoting statute).
20. No. 21-5256, 2021 WL 3121373 (6th Cir. July 23, 
2021).
21. Id. at *4.
22. Id.
23. Terkel, 2021 WL 742877, at *10.
24. E.g., Home Bldg. Ass’n v. Blaisdell, 290 U.S. 398, 
437 (1934).
25. No. 21-5093, 2021 WL 2221646 (June 2, 2021).
26. Id. at *3.
27. U.S. Const., amend. V.
his disagreement  
between the circuits is  
unlikely to be resolved by 
the U.S. Supreme Court  
in the near term.
“
”


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