State Politics

Trespassing bill may violate Constitution, conflict with Idaho law, analysis says

A contentious new proposal would overhaul Idaho’s trespassing laws.
A contentious new proposal would overhaul Idaho’s trespassing laws.

A bill to overhaul Idaho’s various trespassing laws conflicts with a number of other parts of state code and may violate the U.S. Constitution, according to a new analysis by the Attorney General’s Office.

House Agricultural Affairs Committee members on Feb. 14 voted 14-1 to send HB 536 to the House floor. The one committee member who voted no, House Minority Leader Mat Erpelding, D-Boise, had some concerns about the bill’s legality. He asked the AG’s Office for an analysis of the bill, including any “constitutional concerns.”

“(The bill), as written, appears to be overly broad as it proscribes a great amount of lawful conduct and runs afoul of First Amendment and Fourteenth Amendment protections,” wrote Deputy Attorney General Paul Panther in his seven-page response released Tuesday.

The bill’s sponsor is Rep. Judy Boyle, R-Midvale and the committee’s chair. She said last week she wants to make Idaho’s “patchwork” of trespassing violations consistent, and streamline them in the process. Property posting requirements and penalties currently depend on whether the action is criminal, civil or recreational trespass.

Boyle, a rancher, said the bill is aimed more toward repeat offenders, not people who get lost or accidentally trespass. It includes a three-strikes clause — if within a 10-year period someone is convicted of two trespassing charges, the third offense is charged as a felony. And it relaxes some property posting requirements.

Lobbyists for the Idaho Sheriff’s Association, Idaho Association of Counties and Idaho Prosecuting Attorneys Association told the committee last week they had serious concerns about the bill’s wording. Michael Kane, representing the sheriffs and counties, said the bill might be indefensible in court and was possibly unconstitutional. He said it could also have unintended consequences — unintentionally criminalizing actions beyond what its authors intended.

Gary Allen, a property-rights attorney assisting Boyle and representing the Idaho Property Rights Coalition, told the lawmakers he disagreed with those characterizations.

“The Girl Scouts are not going to become trespassers or felons,” he said, referring to committee concerns that anyone who sets foot on private property without permission will become a felon.

The AG’s Office found otherwise: “In reviewing the proposed language, it becomes clear that many innocent acts would be considered criminal,” Panther wrote. “Three quick examples come to mind: a neighbor who sees a runaway pet and opens a fence or gate to approach the residence of the pet’s owner runs afoul … a child at a city park who picks up a handful of rocks, places them in his pocket and takes them home … a tired driver who pulls off a two-lane highway to take a nap alongside a cultivated field.”

The three-strikes provision is consistent with Idaho criminal law, Panther wrote. But a passage that would allow a civil penalty in criminal cases of “up to treble the damage caused” may violate the Eighth Amendment, he wrote.

You can read Panther’s full letter here.

Cynthia Sewell: 208-377-6428, @CynthiaSewell

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