Smoky Davis is gone, but the legal battle over eminent domain between the iconic smoked-meat store’s owners and the Ada County Highway District carries on.
And as of July 18, ACHD has been charged $273,072.39 to fight the case by Holland & Hart, a Denver law firm with a Boise office.
Holland & Hart has billed ACHD for the case every month since November 2017 with the exception of November 2018. The highest costs came in January 2019, when Holland & Hart billed ACHD $130,938.73.
Those amounts come from copies of legal bills released last week by Holland & Hart in response to a lawsuit a Boise man filed against ACHD after the highway district refused to release them voluntarily. Almost all of the bills, including hourly billing charges, are blacked out. Only the totals of each monthly bill are not.
Natalie Shaver, an ACHD spokeswoman, said Wednesday that Holland & Hart charges the agency a government rate of about $250 an hour. The rate can vary based on the person or work involved. That hourly rate suggests that the law firm billed ACHD for about 1,100 hours on the Smoky Davis case since November 2017.
The Smoky Davis lawsuit, which is separate from the Boise man’s records lawsuit, is a battle involving eminent domain — the government’s right to take private property, with payment, for public use.
ACHD demolished the smoked meat store in 2017 as part of the intersection expansion at State Street, Veterans Memorial Parkway and 36th Street. The store at 3914 W. State was owned by Gary and Dee Davis. The building had been in the Davis family since Gary’s grandfather, Del, bought it in 1953.
ACHD offered the Davises $248,260 in just compensation. The Davises rejected that amount. ACHD sued.
The Davises told the Idaho Statesman in March that ACHD contends it needs to pay only for the approximately one-eighth of an acre it took as part of the expansion, plus moving costs. The Davises say ACHD should replace the building on the remaining land.
Earlier this year, a judge ruled that the Davises can move forward with their claim. The Davises’ attorney, Walter Bithell, told the Statesman on Wednesday that the couple would likely explore an agreement but that no settlement has been reached yet. If the Davises and ACHD do not settle, the case will go to a jury trial scheduled for February.
ACHD has not been forthcoming with information on how much it has spent to pursue the case. A Statesman records request to ACHD on April 3 was denied. ACHD also denied those records to several other people, including Boise lawyer Nate Peterson, who was not a party in the case but wanted to find out how much ACHD was paying to pursue it.
After his denial, Peterson put a call out on Facebook: If anyone else requested the records and were denied, he would file a suit on their behalf. Cassidy, a friend of Peterson’s in Boise, volunteered.
ACHD denied Cassidy’s request too, and Peterson sued. The denial, signed by Mary V. York of Holland & Hart and dated May 8, said the records pertained to pending litigation and were “outside the scope” of Idaho’s Public Records Act. The act says in part, “Every person has a right to examine and take a copy of any public record of this state and there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”
Cassidy’s petition argued that denial is “both erroneous and frivolous” because legal fees and costs are not protected under attorney-client privilege or work-product doctrines, two permissible exceptions to the public records law.
After suing, Peterson and Cassidy negotiated with ACHD’s legal counsel and Holland & Hart. ACHD and the law firm agreed to release the records after redacting information they deemed subject to attorney-client privilege.
“I believe that anyone requesting those records should have had them simply provided to them, albeit I recognize and respect attorney-client privilege,” Peterson said Wednesday in an interview. “Ultimately whether or not the redactions would fall in that, I don’t know, but I believe the public always has the right to know what the government is spending.”
Peterson said it was “absurd” that any government agency would deny disclosing what it paid a contractor.
He shared the records he and Cassidy received with the Statesman. Peterson told the Statesman that the hours billed probably are not privileged communication, but the description of the work could be.
He also said he was not shocked to see that ACHD had been billed more than $270,000 for the case, as domain cases can be expensive and the Smoky Davis suit is “far from over.”
It was not immediately clear if ACHD had paid the full amount, but the records do not indicate an outstanding balance beyond the $114 billed in July.
Shaver, the ACHD spokeswoman, declined to comment on either the records suit or the Smoky Davis case, citing a policy to not comment on open cases.
Bithell, the Davises’ lawyer, noted that ACHD had spent more on the case than it offered to the Davises, but he also declined to comment on it.
“The Davises are still anticipating that they’ll get reopened at some point,” Bithell said. “This whole thing is kind of an ordeal for them.”