From the August 2000 Idaho Observer:

Note: The following story about a court hearing regarding a citizens' lawsuit against Kootenai county over the Machiavellian passage of an ordinance that creates an oppressive and unconstitutional tax represents the culmination of efforts between a citizens group and The Idaho Observer. Our activities are paying off and we believe that we are on the verge of reversing a bad law that was passed to collect taxes that would fund a jail expansion project the people of Kootenai county already voted down in 1999.

Though we have produced and distributed thousands of four-page inserts to county residents in an effort to create the critical mass of public opinion necessary to reverse a bad law, we have also distributed them as pages 11-14 in the May and August edition of The Idaho Observer. If you would like to see the template for creating an environment of effective civil disobedience through accurate news reporting, please contact The Idaho Observer at: 208-255-2307. For $2 each we will send copies of the May and August editions and will be available to explain how we have managed to build the machinery to effect positive change in Kootenai county.

LOCAL AND SPECIAL LAWS PROHIBITED. The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say [among 31 other things]: For the collection of taxes. Article III, Section 19, Idaho State Constitution

Molenaar argues county into indefensible corner

COEUR D'ALENE, August 10, 2000 -- After repeatedly rolling his eyes over arguments Kootenai County Civil Attorney Dennis Molenaar presented on behalf of the county in answer to citizen claims that the Resort County Local Option Sales Tax is unconstitutional, District Judge Charles Hosack said he would take the matter under advisement and “think about it for a week or two.”

Judge Hosack was unclear as to whether he would render a written opinion or bring counsel back to court on short notice to give an oral decision.

The Resort County Local Option Sales Tax, which was sold to the voters as a property tax relief bill that would also fund the Kootenai County Board of Commissioners' controversial jail expansion project, was signed into law June 13 after being narrowly approved by voters last May 23.

County Commissioners announced August 11 that they would raise property taxes 6.5 percent regardless of Hosack's decision regarding the sales tax.

This lawsuit “is not an effort to stop construction of the jail (though many people would like to see that happen), it is not meant to challenge the integrity of the commissioners or the outcome of the election,” explained Coeur d'Alene Attorney Scott Reed at an August 10 hearing in the Kootenai County Justice Building. The hearing was convened to argue motions for summary judgment submitted by both the county and Concerned Taxpayers of Kootenai County, the plaintiffs in this civil action.

Reed went on to explain that the purpose of the lawsuit was to challenge the constitutionality of the resort county tax which he sees as a “delegation of taxing authority without adequate standards.”

Reed also argued that the tax is a local and special law that is prohibited under Article III, Section 19 of the Idaho State Constitution (see above). Passed by the legislature after a successful lobbying effort by Hagadone Hospitality and Post Falls Attorney Chuck Lempesis in 1995, Reed and the eight complainants whom he represents believe that “even if 95 percent of the people approve of something that is illegal, it is still illegal.”

Molenaar's arguments in support of the county's Motion for Summary Judgement were that the complainants had no standing and that the law was upheld by a similar case heard in Sun Valley.

“I'm not terribly impressed with the standing argument,” Judge Hosack stated after Molenaar cited a supreme court decision which ruled that for victims to have standing in a case such as this they must be able to prove “separate and distinct harm.”

Molenaar argued that complainant Sims, for example, has no standing because she has an auto dealership that is exempted from the tax -- an apparent admission that the sales tax is a local and special law prohibited by the Constitution.

The county's other argument with regard to the legislative intent of the law also challenged Judge Hosack's patience. “I am having a real hard time..following your tagging along on the Sun Valley case and 80,000 population,” he said.

Molenaar was hard to follow as he attempted to justify the levying of the resort county tax, supported by the Sun Valley city case, as not being a local and special law. Judge Hosack observed that Kootenai county is the only county that qualifies due to the requirement that the county boast a population in excess of 79,999.

“The rationale of Sun Valley does not work for Kootenai county and the county is basing its claims on Sun Valley,” Judge Hosack told Molenaar and the nearly 40 people in the courtroom.

Molenaar cautioned the judge that he should not “question the wisdom of the legislature.”

Judge Hosack clearly took exception to both of the county's arguments in support of summary judgment. Though Molenaar argued the county into what would appear to be a legally indefensible position, Judge Hosack is clearly torn as to how he should rule -- in favor of the Idaho State Constitution and the people of Kootenai county, or in favor of an obviously unconstitutional law and the county government which intends to enforce it.

Contact Judge Hosack at: 666-8371 to help him make a decision as to how he should rule in this matter.

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