Narrator: Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettiss family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the Corporation for Public Broadcasting.

Melissa Davlin: The Legislature's budgeting committee made some big changes this year to how they appropriate your taxpayer dollars.

But on Friday, the committee reconsidered some budgets.

It had already passed.

We get an update on how that might impact the session ahead.

I'm Melissa Davlin.

Idaho Reports starts now.

Hello and welcome to Idaho Reports.

This week we bring you up to speed on the legislature's new budgeting process, including a surprise move on Friday to revisit some budgets the committee had already passed.

Producer Ruth Brown discusses an update on a pending execution and a new death penalty bill.

And Kevin Richert of Idaho Education News gives us an update on the open meeting lawsuit against the state Board of Education.

But first, let's get you caught up on the week.

Over the last few years, Idahoans and Utahns had high hopes for funding to restore a passenger rail link between Salt Lake City and Boise.

In December, the US Department of Transportation announced a list of rail corridors across the country that will receive funds to study Amtrak's service reintroduction and Boise to Salt Lake wasn't on the list.

This week, BoiseDEV reported that the Idaho Transportation Department mistakenly submitted the application to the wrong grant program.

ITD told BoiseDEV that, quote, It was an honest mistake.

We all make mistakes, end quote.

The city of Boise tells BoiseDEV they hope the state can go for another round of funding for a study in the future.

Idaho's longest serving death row inmate, Thomas Creech has a new scheduled execution date after the Commission of Pardons and Paroles rejected a request for commutation earlier this week.

Idaho Reports producer Ruth Brown was the pool reporter for that commutation hearing, and she joins me now to discuss what's next.

Ruth, this was a split decision from the commission.

Can you walk me through what was on their minds as they were making their vote, their votes?

Ruth Brown: Sure.

It was a 3-3 split because one of the commissioners recused himself.

A tie vote means that it fails.

The commissioners who supported commutation said that Mr. Creech was not worthy of mercy.

That's not why they were granting it.

They were factoring in his age, how long it had been since the time of his crime, as well as the fact that the judge who sentenced him now believes that Mr. Creech should not be executed.

He's been incarcerated for so long that at this point the judge argued that it would just be vengeance, that life in prison is punishment enough.

Davlin: And for those who aren't familiar with Thomas Creech, he's currently on death row for killing a fellow inmate in the early eighties, but he had been incarcerated since the late seventies.

Brown: Correct.

At the time he, so he's sentenced to death for the death of David Jensen.

He was already incarcerated for two murders of individuals in Valley County.

He also has a murder conviction out of Oregon and a murder conviction in Oregon.

Davlin: And one of the factors in the, those who opposed commutation was that Creech had previously admitted to being involved in many, many more homicides.

Brown: Yeah.

In conversations with law enforcement, Mr. Creech has confessed to, the number varies on which police report you read, but we think as many as 26 homicides.

The defense though, would urge you to focus only on the convictions, he's been convicted of five.

But in conversations with police, he's admitted to more than five.

Davlin: And in the commutation hearing, he couldn't or wouldn't say how many he had actually been involved in and whether he himself had inflated those numbers.

Brown: Correct.

One of the commissioners tried to push him on how many people have you indeed murdered?

And he either couldn't or wouldn't name a specific number.

Davlin: The commutation denial isn't the last step.

What's next?

Brown: On Monday, Mr. Creech has a hearing before the Idaho Supreme Court that will go over multiple aspects of his case.

So first of, first and foremost, the defense attorneys are asking for a stay of execution.

His current execution is set for February 28th.

Obviously, they want to put that on hold.

There will also be arguments around claims that Mr. Creech had, in effect, ineffective assistance to counsel in prior hearings.

As well as a focus on the fact that the law has changed in Idaho regarding how an individual may be sentenced to death.

The last time he was sentenced to death in 1995, a district judge was allowed to impose the death penalty.

Today in Idaho, a jury must be involved in choosing whether a crime should be punishable by death.

Davlin: And briefly, before we move on, the state does still have drugs to execute Mr. Creech, if it does advance to that execution date, right?

Brown: Yes, The Department of Correction confirmed that.

Davlin: All right.

Thanks so much, Ruth.

The death penalty also came up this week in a House Judiciary Rules and Administration Committee discussion over whether to make lewd conduct or sexual abuse with children younger than age 12 punishable by death.

Rep. Bruce Skaug: If a child who suffers these crimes, they are forever injured.

In my opinion, you're taking more than their life at these young, tender years when it's the particularly heinous type.

Rape of a two year old, or multiple victims, or things that are even hard to mention here from this podium.

But they do happen.

And there's a history where these crimes were capital punishment offenses at different places in the country.

Rep. Chris Mathias: And now what we would be doing is we would be adding an additional layer of complexity that will feel like weight on these kids.

Not only will the perpetrators go to these kids and say, hey, don't tell on me.

Normally they'd say, just don't tell me I'll get in trouble.

Now they're going to say, Don't tell on me or the state will kill me.

I will be executed.

So I think this is going to create a chilling effect on the willingness of these children to come forward.

Davlin: The committee ultimately voted to hold that bill at the call of the chair, meaning it could return later in the session.

Ruth Brown has been following this closely and joins me again to discuss.

Ruth, the US Supreme Court already has two decisions that kind of pertain to this question of whether people who have been convicted of committing lewd and lascivious conduct with children can be executed.

Brown: Currently, in 2008, in Kennedy versus Louisiana, the United States Supreme Court determined that it is unconstitutional to execute a person for anything other than homicide or crimes against the state, which would be things like terrorism or espionage, and that specifically sexual abuse of a child, you cannot execute a person for that.

It's a violation of the Constitution.

As well as a 2004 case involving Roper versus Simmons that affects juveniles.

Under Representative Skaug's bill that was held.

It does not specifically rule out the potential if a juvenile commits a crime, lewd conduct with a child younger than the age of 12, if the prosecutor waives them from juvenile court to adult court, they could potentially pursue the death penalty.

Now, that's a stretch, we don't know that prosecutors are going to do that.

But currently there is a Supreme Court ruling saying that you could not do that constitutionally.

Davlin: And the bill, as written does not rule that out.

Brown: Correct.

Davlin: Did this come up in the hearing?

Brown: Yes.

So it did come up and Representative Skaug acknowledges that currently it is unconstitutional to execute a person for rape of a child, in this case, lewd conduct of a child.

He wanted, he tried to stress though, that the Supreme Court ruling involving those justices, the justices that supported it, are no longer on the bench.

And because there is a similar Florida case, there's some litigation happening that could essentially be a test case.

So.

Davlin: In other words, he wants this to be overturned.

Brown: Correct.

Davlin: Got it, ok.

Thanks so much, Ruth.

You can find more of her reporting online at IdahoReports.org On Monday, the House passed a bill that would add mandatory minimum prison sentences to people found guilty of trafficking fentanyl.

The bill also includes a section establishing drug induced homicide where a person could be criminally charged if they distribute a drug that later kills someone.

The vote came after a lengthy floor debate about how deadly fentanyl is and whether the legislation is the right way to address it.

A similar bill failed to make it out of the House committee last year, the bill now heads to the Senate.

After months of some lawmakers expressing concern over last year's $4 billion Medicaid budget, the House Health and Welfare Committee discussed a bill Thursday that would have added work requirements for able bodied individuals enrolled in expanded Medicaid coverage, as well as several other cost containing measures, such as capping enrollment.

That could have resulted in repealing expanded Medicaid coverage if those conditions were not met.

Rep. Jordan Redman: As you know, right now, able bodied adults in our Medicaid expansion population are not required to work, train or volunteer, even part time, as a condition to enrollment.

There's also no limit on the amount that they can collect in the lifetime benefit.

When Idaho expanded to Medicaid to the able bodied adults under Obamacare, we were told that only 62,000 would enrollwith a role in reality we know it's much higher than that today.

Rep. Josh Wheeler: I understand that there may be at least one other state that does have an enrollment cap, but they implemented it before they implemented Medicaid expansion, so they never had to cut people who were already on the program off.

So walk me through logisticly, how do, how will those people be removed?

I mean, if we have, I asked it in the print hearing, but if we have people who are equally qualified for the program, how do we determine which of them stay and which of them go?

Dr. Loren Colson: The stipulations to continue Medicaid expansion, as laid out in this bill, are unreasonable and unattainable.

There are parts of this bill that simply can't be done by July 2025.

There are other parts that are clearly discriminatory.

If Medicaid expansion is repealed, those Idahoans who are on it will still need health care when they get sick.

But now, without insurance, our health care system will be forced to absorb the costs.

Rep. Ilana Rubel: I have serious concerns about the fallout of kicking hundreds of thousands that we would still have to kick thousands, hundreds of thousands off of Medicaid to hit the cap.

So I think it would ultimately wreak untold grief upon the people of Idaho.

And I think, yes, it's a conditional repeal, but ultimately, the condition is like saying, you know, unless you can produce a unicorn that dances the tango, you will be repealing Medicaid expansion.

So effectively repealing Medicaid expansion with this bill.

Davlin: The committee killed that bill in an 8 to 5 vote.

Idaho reports will continue following debates over Medicaid costs throughout the session.

For the last several weeks, we've been telling you about changes to the budget setting process and the Joint Finance Appropriations Committee, including passing baseline maintenance budgets at the beginning of the session and considering additions to those budgets on an individual basis.

The Budget Committee passed those maintenance budgets in the second week of session with billions of dollars going through the committee in a single day.

This morning, on Friday, in a surprise move, the Joint Finance Appropriations Committee reconsidered those budgets.

Joining me to discuss the move is Senator Janie Ward-Engleking.

Thank you so much for joining us.

Did I get that right?

The committee didn't pull back any existing budgets, but you passed new ones that you had already gone through for agencies.

Sen. Janie Ward-Engleking: Right.

No, you got that right.

And no, we actually passed new budgets that are a complete maintenance budget and they'll they'll replace the previous ones that were done.

It became obvious to a lot of the members that when we say maintenance, Idahoans were thinking that's what we needed to keep the government running and the programs in place and realized that we really needed to give a clearer picture of what really needs to be in the maintenance budget.

Davlin: So to be more clear, those first budgets that you passed in the second week of session didn't include things like ongoing appropriations for critical infrastructure projects, certain employee compensation packages, that sort of thing.

Is that was one of the things that was driving your concerns?

Ward-Engleking: Right.

And I was concerned right away when I saw the budgets because things like non-discretionary items were left out.

Re-appropriation for some of our continuing contracts, especially in transportation and water resources.

And so I was worried and even our military budget, you know, they need re-appropriation to continue some of the projects they have under contract.

So I was concerned about that and I think other members of JFAC started worrying that it was sending the wrong message to the people of Idaho when they were being called maintenance budgets.

So today the majority of the members on JFAC decided we needed to do what we called complete maintenance budgets.

And we used the budget, it's basically a budget procedural manual that was put into place, and it's under the code, which is Chapter 37, Title six, I mean, sorry, Chapter 35, Title 67 in code.

And it tells what should be in our budgets and how to set, how to do the budgeting process.

And so we went through and looked at what is under maintenance, and that's what we included along with anything that's in code that we're obligated to fund.

Davlin: And you know this, but just for our viewers sake, initially we were going to have the co-chairs of the Joint Finance Appropriations Committee join us on the show.

Senator Scott Grow and Representative Wendy Horman.

They they both had to cancel.

And we also tried to get a Republican member of the committee to join you to talk about his opposition to what the majority did today.

And again, he had to cancel last minute.

But for the record, the co-chairs have said that they would go back and revisit those those line items, that they would address the concerns that you and your colleagues had about picking up those other appropriations in separate bills.

Ward-Engleking: And, you know, we I was hopeful that would happen, but there wasn't a guarantee that it would happen.

And the reality is, Idahoans, when they hear maintenance, they think that, okay, this is what we need to continue to run government in Idaho and to continue the programs that are in place.

And that, those weren't funded.

They weren't.

To give you an example, launch, which is in code and statute was passed last year, it wasn't funded in those maintenance budgets.

Davlin: And that's the program that gives up to $8,000 in grants to graduating Idaho high school seniors pursuing in-demand careers.

Ward-Engleking: Right.

And the change in Employee Compensation Committee's recommendation wasn't in the original maintenance budgets.

It was a placeholder.

And so that wasn't included.

Non-discretionary funds, those, they're called nondiscretionary for a reason.

We don't have any discretion.

We have to put those in.

Davlin: And for those who don't understand the budgeting process, what is a non-discretionary fund.

Ward-Engleking: An example would be in the public school budget.

It's the money that goes out in support units.

To run a classroom.

Davlin: Got it.

Got it.

You know, this is a major piece of the change to the budgeting process, but it's not the only piece.

Was Friday's pushback specific to just the change on passing maintenance budgets or do you have other concerns as well?

Ward-Engleking: I think we can work through the other change.

I think this was the major concern.

The one that everybody was starting to realize was problematic.

It was, we had lots of people who said, Oh great, my goodness, that's quite a cut in the budgets from last year.

And they were, I guess, wondering why we, why there was such a huge cut.

And so this is, this can explain that.

We hadn't put everything in that we were required to put in.

Davlin: You know, the two committees, the House and the Senate committees, haven't yet pulled back the original budgets that you passed.

So now you have two competing budgets on the House and Senate floors, potentially.

Ward-Engleking: Potentially.

I think we today there were competing motions and.

Davlin: Which isn't uncommon.

Ward-Engleking: Which is not uncommon.

And one of them dealt with just adding some items into the maintenance budgets that had been passed the second week of session.

And those were voted down.

So these will go in their place.

And so I, it's unusual, kind of, to have some budgets on the floor that haven't been pulled back to committee yet, but I believe they will be.

Davlin: The the chair of the committee, Senator Grow, was one of the people who opposed what you did today.

He was in the minority voting bloc.

All of the votes were 12 to 7 and Representative Horman was absent, but I think it's easy to assume that she would have been there with her co-chair, Senator Grow.

How are tensions between the co-chairs and the rest of the committee who have been opposing this move on the maintenance budgets?

Ward-Engleking: Well, you know, in committee, we really do want to work with our chairs.

It's really important that we keep a good working relationship.

And I don't think anybody did this lightly.

I think they had to look carefully at what the ramifications were and whether we were sending the wrong message to Idahoans.

I know there was a lot of discussion before we did this with the co-chairs.

And so I, I feel like they they knew people were unhappy with the budgets we'd passed in such a hurry.

I mean, really, we got those budgets on a Friday.

We didn't have JFAC on Monday because of the snow, and we passed them on Tuesday.

And there were nearly 100 budgets and we only got 10 votes.

Just to give you an example, under general government, there were 21 budgets, and you could either vote it yay or nay.

And that's not very transparent.

We've never done that before, and it doesn't give somebody the chance to say, Well, I'm not happy with this one budget, but I, you know, I'm fine with the rest.

We didn't have that option.

It was either yes or no.

Davlin: At the end of the day, how do you think this will affect the timeline for the rest of the legislative session?

Ward-Engleking: I think we'll be right about where we've always been.

We'll have our budgets done by March and we should be able to get out of here sometime, you know, mid-March, probably.

I don't think it's going to, we're still hearing all the agencies, you know, what they want, and we're on schedule there.

So it's just a matter of passing budgets.

And this is actually a little earlier than we normally do.

We usually start setting budgets in February.

Davlin: All right, Senator Janie Ward-Engleking, thanks so much for joining me.

Thank you.

And joining me to give his impressions of the week is Kevin Richert of Idaho Education News.

Kevin, you were at the Joint Budget Committee for the last half of it this morning.

What is your take on what went down?

Richert: That was wild.

I don't think we've seen anything quite like that in in JFAC, in the time I've been watching JFAC all these years.

It was a, it was a revolt.

I mean, basically, you had the rank and file members of JFAC push back against leadership of that committee about how are budgets are going to be put together, how are they going to be presented on the floor, and who knows what happens now.

Because what you basically have are two competing budget bills.

The ones that passed today are in conflict with the quote unquote maintenance budgets that were passed out of that committee on January 16th.

So the bills are in competition.

I, who knows which bills are going to be presented, how those bills are going to be treated on the House or Senate floor when it gets to that point.

We've never really seen anything quite like this.

I mean, we knew JFAC was trying to rewrite its budget process.

We knew going into the session that were are going to be a lot of changes.

We could have expected that there'd be some turbulence along the way.

This went beyond turbulence.

I mean, this was, you know, like I said, I mean, basically a revolt within the committee and, you know, definitely push back against leadership of JFAC and to some degree, leadership in the legislature at large.

Davlin: It sounds like wonky insider baseball.

And to be clear, it is, but we're also dealing with billions of dollars in taxpayer money and programs that directly impact Idahoans across the state.

Richert: And what happens with these budget bills and how these budget bills are presented.

These were relatively small agency budgets.

I'm not trying to diminish the work that these agencies do, but we haven't gotten into the big ones yet.

We haven't gotten into K-12, haven't gotten into higher education.

We haven't gotten into health and welfare.

You know, those are the budgets that really affect Idahoans and have huge impacts on Idahoans.

And we haven't gotten into any of the really big line item requests that we expect to see in K-12 or in any other really Department of State government.

So this could be a prelude for what we see unfold the rest of this legislative session on these budget bills.

Davlin: Well I'm certainly sending some good thoughts to the legislative services budget writers who have to deal with all of this on the fly in these in these hearings and behind the scenes.

Richert: They looked harried.

And they are some of the hardest working people in the state house anyway.

And it's pretty early in the session for them to look as frazzled as they did today.

But yeah, they're they're going to have their work cut out for them.

Davlin: Certainly.

More so than usual.

Richert: Yes.

Davlin: This week also, we saw a decision handed down on the state board lawsuit over the alleged open meeting violation.

What did we learn?

Richert: Well, what we learned was that the judge was not very impressed with Attorney General Raul Labrador's argument.

You know, I've read enough of these court decisions and I took another look at this one today because, you know, I read it on deadline on Wednesday when I wrote about it.

I wanted to take another look, the judge, there was no language in this ruling that you sometimes see in a ruling where a judge says there are points that are being made on the other side that are that are valid, that are worthy of consideration, but, I'm going to side the way I'm going to side.

I didn't read any of that in this decision.

It was a pretty, pretty resounding decision in terms of siding with the state Board of Education and, you know, going against Attorney General Labrador's lawsuit.

Davlin: And so that means that from this angle, the move to purchase University of Phoenix or to acquire University of Phoenix isn't in jeopardy, but there are still more steps to go.

Richert: There are still more steps.

And legally, we're not necessarily done yet.

Labrador made it clear that he's exploring avenues of appeal.

He didn't really say what those avenues would be.

Haven't heard anything to this point about whether an appeal has been filed or will be filed, but definitely left that door open.

Even if you take the legal issues off of the table, you still have, you still have the question of accreditation, U of I's accreditors still have to sign on to this deal.

You still have to finance this deal, a $685 million purchase.

The U of I's nonprofit has to go out into the bond market and get this thing financed.

And you know, you've got legislators still who would like to have a say in this decision, in this purchase.

So a lot of hurdles still to clear even if the legal avenues have been taken care of.

Davlin: And as a reminder for viewers, what's the proposed timeline on this acquisition?

Richert: The date to watch is May 31st.

That is kind of a soft opt out date.

If the deal is not completed on May 31st, either the U of I or Phoenix could walk away.

They don't have to walk away, but they could.

Davlin: This week in the House Revenue and Taxation Committee, we saw a tax credit bill show up that would allow families to get tax credits if they send their students to private school instead of public school.

Can you walk me through that legislation?

Richert: It's basically the legislation that we'd heard about before the session.

It would provide tax credits of up to $5,000 for parents who want to move their kids into private school.

It is a capped program.

The spending the first year is supposed to be a $50 million.

And that raises a whole lot of questions, because you know, supporters will say, well, there's a cap.

It's only $50 million.

Opponents will say, we've seen this play out in other states where caps are removed, caps are lifted, caps are softened.

And all of a sudden programs that started out at X dollars become a lot more of an expensive program.

And you know, this is one of those defining issues of this session, because if the legislature goes down this road and starts to put private money, public money into private education, that's something we've never done in the state.

It would be historic.

Davlin: And this is a little bit different than some other proposals we've seen in the past.

The governor has made it clear that he's willing to consider proposals that don't divert money from the public education funding stream.

Do you think, looking at this, that that passes that muster?

Richert: Well, but he also made clear that he didn't you know, he didn't put any money in the budget for any kind of a vehicle like this.

I mean, he made his budget priorities very clear on day one of the session.

He wants a bunch of money to go into state support for school facilities, which also would be historic, because historically, for over a century, the legislature has delegated that to the local level.

They have expected local school districts to figure it out, work with their local taxpayers, and come up with a way to pay for new schools or to pay for building maintenance.

So the governor has made very clear that he wants to take a historic step to involve the state much more in the construction and the repair of local school facilities.

So you've got you know, budgets aren't always binary decisions, but this is getting to be where it gets pretty close to a binary decision, where you've got the tension between a historic tax credit and a historic move to fund local schools with state dollars.

Davlin: We have about 30 seconds left.

The guns in schools bill has passed the House.

It is in the Senate hands, a ton of opposition from Idaho Education Association.

Richert: Right.

And they really stepped up their opposition on Thursday, the day after this bill passed the House.

IEA leadership, about 30 IEA leaders, cosigned a letter that went to senators urging them to vote no.

So next move is in the Senate.

We'll watch and see what happens.

Davlin: All right.

Kevin Richert, Idaho Education News, thanks so much for joining us.

And thank you for watching.

We have so much more online, including on the Idaho Reports podcast, which you can find on your favorite podcasting platform.

Be sure to check out our online work throughout the week at IdahoReports.org Thanks so much for watching and we'll see you next week.

Narrator: Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettis family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the Corporation for Public Broadcasting.