Judge disqualifies attorney general from Idaho State Board of Education lawsuit

This story was originally posted on IdahoEdNews.org on Aug. 28, 2023.

Idaho Attorney General Raúl Labrador has been disqualified from his open meetings lawsuit against the State Board of Education, according to a Friday ruling from Judge Jason D. Scott.

The order came just one day after a court hearing on the board’s motion to disqualify.

Labrador has until Sept. 5 to find new counsel.

On June 20, the attorney general sued the State Board, claiming the board violated open meetings law when it discussed the University of Idaho’s proposed acquisition of the University of Phoenix in closed executive session.

In response, State Board lawyer Trudy Fouser filed a motion to disqualify Labrador from the case, citing a June 20 phone call in which Labrador (accompanied by Solicitor General Theodore Wold) allegedly sought privileged information from State Board Executive Director Matt Freeman before announcing his plan to file a lawsuit.

Just hours after that phone call took place, Labrador filed the lawsuit.

Judge lists several reason for Labrador’s disqualification from State Board lawsuit

In his ruling, Scott listed several reasons for disqualification — a legal move that is typically disfavored when brought on by an opponent.

The first pertains to Labrador deputy Jenifer Marcus, who was assigned to the State Board. According to court documents, Marcus advised the State Board that its executive session was appropriate, and reviewed the board’s meeting materials.

But the primary conflict of interest lies in the June 20 phone call, court documents read. The courts received two “distinctly different” explanations of the phone call — one from Freeman, and another from Wold.

According to his written testimony, Freeman spoke candidly with Labrador during the call, believing he was speaking to the attorney general in his capacity as attorney for the State Board. Freeman claims Labrador and Wold asked “probing” questions about the executive session before announcing the intent to file a complaint against the board at the end of the call.

If he knew about Labrador’s plan to sue, he wouldn’t have spoken so openly, Freeman wrote.

But Wold disputes that claim, arguing instead that Labrador announced his plan to sue at the beginning of the call.

Neither Labrador nor Marcus submitted a written account of the phone call.

The judge found Freeman’s account “more plausible.”

“He says he spoke freely,” Scott wrote in his ruling. “A person in his position would be expected to clam up in response to an announced intention to file suit.” And the chance that Labrador received privileged information during the call is “highly likely,” considering he’s the statutory attorney for the board and asked allegedly probing questions, Scott continued.

The judge partially granted the board’s motion: Labrador must find alternative representation — either outside counsel, or an in-house lawyer from Labrador’s office, as long as the attorney is not privy to information obtained during the phone call.

Friday’s ruling also disqualified Wold and Deputy Attorney General Timothy Longfield from the case.

Labrador has a Sept. 5 deadline to find new counsel.