A legislative sticking point: ‘civil cause’

BOISE — The 2023 Idaho legislative session was dominated by discussions about property tax relief and libraries — but there was also something that kept coming up in public hearings and floor debate: the civil cause of action.

The enforcement mechanism, which gives people the right to sue an entity in civil court, showed up in around a dozen bills — including some of the most controversial ones, such as the vetoed “harmful materials” in libraries bill.

The author of that bill, as well as the “bathroom bill” that passed, Idaho Family Policy Center President Blaine Conzatti, said it’s not unusual to use the civil cause of action, and he was surprised it was such a talking point throughout the session.

The policy center is a “conservative Christian policy research and educational organization,” according to its website, and the origin of recent laws such as the state’s “fetal heartbeat” bill and the Texas-style abortion ban, allowing doctors to be sued for providing abortions after six weeks.

Conzatti said he felt a lot of the concern came out of legislators’ misunderstanding of “basic legal concepts.”

“There’s nothing new about using civil causes of action to allow victims to recover damages for the harm they suffered as a result of the unlawful activity of the perpetrator,” Conzatti said.

Conzatti studied theology, government and economics at Liberty University, in Virginia, according to the policy center website. He told the Idaho Press he didn’t finish law school.

He said the mechanism was appropriate for the bills he included them in.

“From my perspective, as we’re drafting this legislation, we’re always trying to determine what the most effective enforcement mechanism is and what enforcement mechanism is most suited to the type of legislation, from a constitutional and historical and social standpoint,” Conzatti said.

Sen. James Ruchti, D-Pocatello, an attorney and former president of the Idaho Trial Lawyers Association, said he found it unusual how many bills had the civil penalty attached to them this year. He highlighted HB 314, which would’ve allowed people to sue library boards or school districts if a minor obtained “harmful materials.” Ruchti said there’s already processes and mechanisms in place to handle these situations, such as filing complaints about particular books or voting out library or school board members.

“My biggest concern with these sorts of enforcement mechanisms is it forces the rest of us to live by the standards of a minority of our state,” Ruchti said.

Sen. Geoff Schroeder, R-Mountain Home, said the way the civil cause of action was crafted, especially in the library bill, is unusual in his experience as the city attorney for several cities and as a county prosecuting attorney. He said in particular he took issue with a specific dollar amount of relief being included in the bill, in addition to other damages and attorney fees.

He said if the person prevails in court, it doesn’t give the judge discretion to not award the fees or allow the school or library to avoid paying if it corrects the issue, regardless of the circumstances.

“My beef with that private cause of action is it incentives people to bring these things forward when a discerning eye of a prosecutor or a library board or a librarian has already said no,” Schroeder said. “So it’s a cash bounty and that’s my issue with it.”

Schroeder had proposed an amendment to the bill that would have allowed a prosecutor to seek injunctive relief, which would mean the school or library would have to cease making available whatever material is considered harmful.

“What my proposed amendment would have done is take the bounty, the incentive out, so that there isn’t this monetary reward for engaging the library in relentless litigation,” he said.

Ruchti thinks the civil cause of action method began being applied to other legislation after the Texas-style abortion bill passed last year; it allows family members of a fetus aborted after six weeks to sue the abortion provider for a minimum of $20,000.

“These private causes of action were very anti-local government, and they were heavy-handed, meaning the government has come in and used its power to place the heavy hand of government on the scales and against families making decisions for themselves,” Ruchti said, highlighting books that their children read or health care decisions. “...This is the government intervening in a very new way, but effective way, to prevent families from being able to make those decisions for themselves.”

Ruchti said the abortion laws are already having a significant effect, citing the two Idaho hospitals that recently announced they were ending labor and delivery services — one in Emmett and one in Sandpoint. The northern Idaho clinic said the political and legal climate doctors face has contributed to the difficulty recruiting and retaining staff; Idaho’s abortion laws have criminal and civil penalties.

Conzatti said he believes people started taking notice more of the civil enforcement mechanism after the abortion law passed in 2022 because of the “unique legal dynamics” there.

Someone can only sue if the law specifically gives them the right to do so under their particular circumstances. For instance, many of the laws that grant the right to sue are anti-discrimination statutes.

Conzatti noted the bathroom bill, SB 1100, which requires schools to enforce that students use the bathroom that corresponds to their biological sex and that they make reasonable accommodations for those who can’t or won’t comply.

“If a biological girl encounters a biological male in the girls’ high school bathroom, she could not sue the school,” Conzatti said, noting the law doesn’t go into effect until July 1. “There’s no cause of action she could sue under, because there’s nothing in state law that defines a duty of care for schools to maintain separate facilities for boys and girls unless we create that, which we do with Senate Bill 1100.”

Sen. Ben Adams, R-Nampa, sponsored SB 1100, and said he felt the civil cause of action was needed because it is “empowering the citizens.”

“I just think of it more as, ‘Hey, we’re going put that power in your hands,’” Adams said.

He said the Texas-style abortion law is the first time he noticed the strong effect of the civil penalty.

“It clearly had a chilling effect on people conducting abortions in the state,” he said. “…I think the incentive for all parties is to make sure that they’re following the law. It just adds that extra incentive.”

One of the areas where the civil cause of action met the most resistance, from both Democrats and a number of Republicans, this session was the library bill, HB 314.

Rep. Greg Lanting, R-Twin Falls, is a former school administrator and was a vocal opponent of most of the bills that included the civil cause of action, especially the library bill. He said $2,500 might represent the book budget for a year for a small library.

“I think it’s also governance by intimidation,” Lanting said, “you’re forcing people to make changes that aren’t really necessary, but they feel like they have to just to stay out of litigation.”

An earlier version of the library bill narrowly died in the House Education Committee, with a number of the members opposing the civil penalty, which was originally for at least $10,000. The bill, with a lowered penalty, later passed through the House State Affairs Committee.

Lanting said he also opposed the language included in the civil cause of action that allowed those bringing the lawsuit to recover attorney fees if they prevail in court but not providing the same requirement for the attorney costs of the entity being sued.

When Gov. Brad Little vetoed it, he wrote in his veto letter that the $2,500 would create a “library bounty system that will only increase the costs local libraries incur.”

Conzatti said he objected to the term “bounty” being used to describe the civil actions because the bill is only allowing the victims to sue, which in the library and bathroom bills would be the minors affected or their parents or guardians.

In a Feb. 16 YouTube video, Conzatti spoke to a group of lawmakers about the original version of the bill, which would have allowed $10,000 to be recovered per incident in addition to any damages for psychological harm.

“So we’re talking about lawsuits that can be very, very expensive, lots of civil liability for the schools and for the libraries, and it’s our belief that this is the most effective way to enforce this policy,” Conzatti said in the video.

He also talked about how the insurance companies for libraries and schools would create policies that would cause the entities to change their behavior.

“Insurance companies don’t want to pay out damages, they don’t want to defend their clients, and so what they’ll do, is they will change their policies,” Conzatti said in the video. “The policies that the schools or the libraries are required to abide by if they’re going to be insured by the carrier, and those policies are going to say, ‘Hey, you’re going to have to remove these books.’… And here’s what’s going to happen, if a school or a library keeps making this material available to kids, they’re going to lose their insurance coverage.”

Conzatti said this would only apply to obscene books, and it wouldn’t create a chilling effect on constitutionally protected materials. Obscenity isn’t protected under the First Amendment.

Schroeder highlighted Conzatti’s presentation in which he stated the insurers would alter behavior.

“The way you alter behavior of a government is you persuade the people who are running it or you run for those offices,” Schroeder said. “... This is a far worse scheme, if there was actual harm somebody was receiving there’s nothing precluding Mr. and Mrs. Smith from seeking a tort claim against the library from harming their child from some objectionable material.”

However, the kinds of materials some people are trying to get removed from libraries are not always “obscene,” Lanting said. He said he looked at a list of books that residents had requested be removed from libraries in Twin Falls, and he thought they were either not harmful or they were already found in the adult section. He noted that HB 314 included in its definition of sexual conduct any act of homosexuality.

Lanting said depending on how the bill was read, libraries could have thought they needed to remove any books that included two moms or two dads.

“I hate to use the word censoring, but I think that’s probably what it is,” Lanting said.

Schroeder said if a similar version of the library bill passes, it “absolutely will have a chilling effect.”

“Make no mistake that the targets of these things ... these are viewpoint- and content-based objections,” he said, which poses First Amendment concerns.

Conzatti said the civil enforcement was a “lighter touch” than criminal charges. Last year, he helped draft HB 666, which would have criminalized librarians who checked out materials deemed harmful to minors. This bill passed the House but died in the Senate.

“Oftentimes that’s our goal, we want to hold these wrongdoers accountable for their actions, but we recognize that criminal culpability might not necessarily be the best way to do that,” Conzatti said.

He said he felt that a lot of the opposition to the civil cause of action was more because he authored the bills rather than the mechanism itself.

“I think a lot of the opposition was insincere, frankly, and a lot of the opposition is because I wrote the bills,” he said. “I don’t think that people would be taking issue with civil causes of action if someone else were putting them into legislation ... dozens and dozens of bills my whole time I’ve been here have included civil causes of action.”

Conzatti said he’s been working on legislation in Idaho for about four years; before that, he was at the Family Policy Institute of Washington, in Lynnwood, Wash.

He said the mechanism will likely keep being included in legislation.

Adams said he expects to see it in future legislation depending on the topic, but it will depend on how it goes with the laws that include it that did pass.

“A lot of it will depend on if this proves to be effective,” Adams said. “... The one thing I do know, is the intent of the bill sponsors is good. ... We’ll see how the implementation part plays out.”

Schroeder said he’ll evaluate his stance on the civil causes of action on a case-by-case basis as they’re proposed, but the consequences and intention behind them will play a role in his decision. He said in matters where “actual harm” has occurred, there are already legal remedies under the tort claim act.

“This remedy has been available forever,” he said. “That’s one of the reasons why the private cause of action needs extra scrutiny to see what’s really going on.”

Ruchti said that having a lot of freshman legislators in the Statehouse this session may have contributed to some of these bills advancing. Nearly half the lawmakers were new to their positions.

“But I think (civil causes of action) were so new, and you had a bunch of new legislators who, they didn’t know this was like the first year that legislation had contained so many private causes of action,” Ruchti said, “so it was kind of a perfect storm, and we’re going to see what the consequences are.”

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.