Does your prosecutor work for you
or for the money interests?
by John Poland
Separation of powers is a basic concept in American government. At the federal, state and local levels the authority and responsibilities are divided among several different branches of government. The intent is to prevent tyranny by dividing government power into separate offices. Citizens elect the public officials representing each branch of government.
There have been continual efforts to undermine this system in America, from the federal level down to the local level. Much attention recently came to the efforts of Kootenai County Commissioners to change the Sheriff from an elected position to a selected one. The obvious conflict of interest has kept this from happening so far, but they are still pushing the idea. A Sheriff beholden to the Commissioners is not one who will listen to the needs of the people.
What is not widely known is that the office of County Prosecutor has already been compromised in exactly the same way. The Prosecutor is responsible for carrying out the laws and regulations at the county level including deciding when criminal charges are to be brought against alleged violators. Obviously, this is an important position which is why the Prosecutor is directly elected by the people.
In most counties in Idaho the Commissioners have hired โdeputyโ prosecutors to handle civil law cases, such as zoning law, property development, infrastructure development and even financial matters. The elected County Prosecutor is effectively blocked from dealing with anything except criminal matters.
Is this legal? Well, actually no. The county prosecutor is an elected position, per Idaho Statute Title 34 Chapter 6. Here is the section of the applicable Idaho state law governing the duties of the prosecutor:
Title 31 โ Counties and County Law, Chapter 26 โ Prosecuting Attorney
31-2604. Duties of Prosecuting Attorney. It is the duty of the prosecuting attorney:
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* To prosecute or defend all actions, applications or motions, civil or criminal, in the district court of his county in which the people, or the state, or the county, are interested, or are a party; and when the place of trial is changed in any such action or proceeding to another county, he must prosecute or defend the same in such other county.
* To prosecute all felony criminal actions, irrespective of whom the arresting officer is; to prosecute all misdemeanor or infraction actions for violation of all state laws or county ordinances when the arresting or charging officer is a state or county employee; to conduct preliminary criminal examinations which may be had before magistrates; to prosecute or defend all civil actions in which the county or state is interested.
If the County Commissioners directly hire a โdeputy prosecutorโ who is that official beholden to? Wouldnโt there be a great incentive to โbend the rules a littleโ to favor the Commissioners preferences? Would you expect that a prosecutor hired by the commissioners would even be able to act against them in any real fashion if they are acting unethically?
Note that the elected prosecutor is directly responsible for all matters of law, both criminal and civil, affecting the county. So how do the various commissioners justify directly hiring โcivilโ prosecutors? They do this by abusing a section of Idaho code that is intended to apply only during times of genuine need for prosecutorial assistance:
Title 59 โ Public Officers in General, Chapter 9 โ Resignations and Vacancies
59-907. Prosecuting Attorney โ Vacancy โ Residency โ Contracting with another Prosecuting Attorney
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* In the event a vacancy exists and there are three (3) or fewer resident attorneys in the county who are willing and qualified to perform the functions of prosecuting attorney as set forth in chapter 26, title 31, Idaho Code, the board of county commissioners may appoint and/or contract with an attorney from outside the county to perform the duties of prosecuting attorney for the balance of the unexpired term or such shorter period as the board of county commissioners shall determine.
* A county may contract for prosecutorial services with another prosecuting attorney provided that: (a) The circumstances of subsection (1) of this section have occurred; (b) The boards of county commissioners of both affected counties adopt resolutions so authorizing the prosecutor to fill the vacancy or appointment and/or contract; and (c) The length of the term of appointment or contract complies with subsection (1) of this section.
* Subsection (2) of this section shall operate as a limited exception to that portion of section 31-2601, Idaho Code, that prohibits a prosecuting attorney from holding any other county office.
Note that the intent of this provision is to allow counties to fill a vacancy with another county prosecutor, until the vacancy can be properly filled by election. It is not intended to allow commissioners to hire their own personal prosecuting attorney.
Several county prosecutors have challenged the hiring of โcivilโ prosecutors in their counties, and at least one had a ruling from the Idaho Supreme Court stating that the commissioners acted inappropriately. The โcivilโ attorney was promptly dismissed and the elected prosecutor was restored to full authority over civil and criminal matters.
Despite this ruling and the clear lack of authority to hire their own Prosecutors, Commissioners continue to do so all over Idaho. It is certainly the situation in Boundary County Idaho. A recent conversation with the newly-elected County Prosecutor revealed that she had no interest in civil matters and was quite content to allow the โChief Deputy Prosecuting Attorneyโ, to handle all of the civil cases. The โdeputyโ prosecutor has been re-hired over and over again for many years to handle โcivilโ matters. He is an unelected bureaucrat, beholden only to the Commissioners themselves.
Boundary County is notorious for shading the law to favor certain interests. Gravel mining operations in violation of local zoning laws, sand pit operations by the county in residential areas, establishment of โretreatsโ in violation of zoning and against the will of local residents, encouragement of illegal junkyards all over the county โ the list goes on. The โcivilโ prosecutor does not have anything to say about any of this, other than โthe laws are a little vagueโ, or โI donโt see a problem hereโ, or โhow about you work with Planning and Zoning to rewrite the laws if you donโt like them?โ Apparently it is all perfectly legal, as long as you โinterpretโ the laws properly. โProperlyโ most likely meaning โwhatever the Commissioners wantโ.
If we donโt push back against these abuses they become entrenched and we all begin to say โOh well, thatโs just the way it isโ. It doesnโt need to be that way. Stand up for the rule of law, and replace all government employees and officials that refuse to. If the law is unconstitutional, change it, but donโt allow your elected officials to decide for themselves what rules they will follow, at your expense.
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