[Vision2020] [Bulk] Re: Weitz Lawsuit: A Challenge

jeanlivingston jeanlivingston at turbonet.com
Sun May 13 07:40:06 PDT 2007

JFord asks:

> What about asking for a "judicial opinion" or judicial review" of
the facts 
> as presented by the interested parties? Does Idaho have such an
option or 
> would a judge(s) be willing to do this? How about the AG looking at
> "facts" and issuing an opinion? If those come back negatively
> wouldn't that at least be a "warning" to other potential filers?

The Weitz lawsuit is styled as one seeking a "declaratory judgment and
injunctive relief."  The declaratory judgment portion of the lawsuit
asks the judge to do precisely what you suggest.  That is what is

One may seek an opinion on the merits of an issue of Idaho law from
the Attorney General, but this is only "authority" in support of
whatever position the A.G. decides is the correct outcome under the
law,and not "precedent."  A judge, and the ultimate arbiters of state
law questions, the Idaho Supreme Court, would be free to decide this
case differently from the opinon issued by the Attorney General, and
the court system's answer would be the final say.

As authority but not precedent, an Attorney General opinion will
suggest an answer but it could be "wrong" in the eyes of a later
reviewing judge.  I suppose an A.G. Opinion could "warn" of a
probable outcome, but it will not carry any weight in terms of forcing
those, who might bring a lawsuit that suggests an answer different
from the A.G. Opinion, to face any additional consequences for doing
so than already exists under existing law.  

I suppose the upshot of this is that the declaratory judgment action
is designed to get to an official statement of what the law is.  An
A.G. Opinion or Idaho Tax Commission ruling will merely suggest what
the law possibly/probably is. 

BJ Swanson has suggested that the parties mediate and agree to abide
by the answers suggested by the Attorney General and the Idaho Tax
Commission.  As I think about this, a potential problem arises, one
raised by Gary Crabtree and Sue Hovey already, i.e., the lack of
binding effect on non-parties.  Entering into such an agreement would
bind the MSD and Dr. Weitz from contesting the decisions of the
government agencies, but other concerned citizens could still contest
the validity or invalidity of the outcome reached in the proposed
mediation decision.

Until thinking the process through in writing this answer, I had been
initially receptive to BJ Swanson's mediation suggestion, but
the lack of a decisive answer that could come from mediation gives me
pause.  On the other hand, a year (or three or five) of operating the
Moscow Schools without the significant portion of the money (a fifth,
a quarter, a third?) that is provided by the indefinite,
permanentsupplemental levy, will be so harmful to our children,
schools, and this town as a whole  that I hate to contemplate it.
What alternatives do others see?

Moscow's attractiveness to business and prospects for growth with
people that value and support public schools would seem to be damaged
significantly in the near term by this lawsuit.  I think that Dr.
Weitz is hoping, somehow, to help the schools in the long run
with his lawsuit by forcing a re-vote ultimately of money for the
schools and hoping to see money allocated for his pet projects. 
However, it seems unlikely to me that there is much hope for that
prospect to amount to much for a very long time, no matter how
favorable the outcome from Dr. Weitz's perspective, given the short
term damage.  

That is why I think his approach was misguided and unhelpful, no
matter how much I support Dr. Weitz's desire to increase
professional technical education ("PTE") offerings for our childrenin
the Moscow public schools.  I fear the backlash against his approach
will damage the long-term prospects for needed PTE offerings in which
the Moscow schools indisputably are lacking.  (Assuming that
Dr.Weitz's lawsuit had not been filed, I note that some new PTE
programs that came out of November's MCA forum were being put into
place at the alternative school.  I hope that still happens.  Those
courses need to be made available to the kids at the high school,
too, and not be stigmatized as "just" alternative school offerings,
but I am willing to get there with smaller steps that will allow some
experimentation and time to establish a track record of success.)

I fear that the only folks unharmed by this lawsuit are those to whom
the public schools are unimportant, because the the lawsuit will not
damage their thoughts about whether Moscow is a good place to live or
establish a business.  For the rest of us, the day this lawsuit was
filedremains a dark day.  

Bruce Livingston
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