The governor has hired his own lawyer in the lawsuit challenging the Idaho Legislature’s move to tank a planned sale of the vacant Idaho Transportation Department campus.

The move withdraws representation from Attorney General Raúl Labrador, who last week filed a response brief on behalf of the Board of Examiners without the board’s approval, BoiseDev reported.

The governor’s attorney and attorney general are both tasked with defending the state but are coming at the case from different perspectives.

After learning that Labrador submitted the brief, which was meant to represent the Board of Examiners, Gov. Brad Little used an Idaho law that allows him to decide that the attorney general’s office — which is the default lawyer to represent the state — would not “effectively advocate or pursue the policies of the governor” to hire outside counsel.

The highest bidders in a planned surplus sale of the State Street campus brought the lawsuit, arguing that the budget bills for the agencies that included intent language revoking the sale violated the state constitutional requirement that legislation address only a single subject.

The developers — Hawkins Companies, Pacific Companies, and FJ Management — are asking the state Supreme Court to declare the bills unconstitutional and to require the state to go through with the sale.​​

The House of Representatives, at the request of House Speaker Mike Moyle, had asked and were allowed by the court to intervene in the case.

Each of the groups representing the state are taking somewhat different approaches.

Labrador’s office submitted a response May 15. In it, he argued the developers lacked standing to bring the case because there was no signed contract, and that the state can’t be forced to go through with a sale.

The response doesn’t weigh in on the constitutionality of the bills, but instead argues there’s nothing in existing law that would allow for the court to impose the remedy sought by the developers.

But the governor said the brief was filed without the knowledge or approval of the Board of Examiners, which examines claims against the state. Its members are Little, Secretary of State Phil McGrane and Labrador. State Controller Brandon Woolf serves as a nonvoting secretary of the board.

Little’s press secretary, Madison Hardy, wrote in an emailed statement, “The Governor has learned that a brief and answer were filed on behalf of the Board of Examiners in the lawsuit before the Idaho Supreme Court. The filings were neither presented to nor approved by the Board prior to filing.”

Labrador’s office has said his filing was necessary because there was a two-week deadline imposed by the court by which the office needed to reply and that Little had been kept apprised of the office’s efforts.

“The Governor was aware of this deadline from day one,” Attorney General’s Office spokesperson Dan Estes wrote in an email.

“He was informed of our legal strategy at least one week before the brief was due. As the chair of the Board of Examiners, the Governor had ample opportunity to call a special meeting but failed to do so.

“Similarly, he could have vetoed the legislation that triggered the lawsuit. It’s curious that his office is trying to blame the Office of the Attorney General for the Governor’s failure to act promptly on his desired policy outcomes.”

Former Attorney General David Leroy, who had supported Labrador’s campaign for attorney general, said that it is Labrador’s duty as the attorney to keep his client apprised of what’s going on.

But he said when the client is a board or commission, that doesn’t necessarily require a meeting to approve action. Leroy said that communication can be through one contact with the board. The attorney general’s “verified answer” court filing was signed by Brian Benjamin, who serves as deputy chief of staff for the state controller.

Leroy said that, given the short timeline for submitting a response, it made sense that the office did so without a meeting from the board. He also said the board, as the client, has the ability to ask that the response be revised or withdrawn if members do not feel it appropriately represented their position.

There is a closed-door executive session meeting scheduled for the board this morning to discuss “the legal ramifications of and legal options for pending litigation or controversies not yet being litigated but imminently likely to be litigated,” according to the meeting agenda.

When the ITD budgets were passed, Little did express concerns about the bills — which had been the center of heated debate at the end of the session — and decided to allow them to go into effect without his signature.

“I did not sign these bills because the intent language unwinds statutory policy language about how the state handles surplus properties and it increases overhead for office space needs across the state,” Little wrote in his transmittal letter. “In addition, it unfairly cancels an agreed upon sales process, causing future reputational risk for the state of Idaho.”

Little later told reporters that he didn’t veto the bill because he didn’t want to endanger the $592 million transportation budget.

Little’s outside lawyer, Joan Callahan of the Boise law firm Naylor and Hales, also doesn’t argue against the constitutionality challenge in her filing.

She writes that the agencies need guidance from the court because of the Idaho code on how to handle surplus property, which was followed during the process of planning to sell the campus, and the intent language in the budget bills are in conflict with each other.

“Ultimately, it is necessary for this Court to rule on the constitutionality of the Challenged Provisions and whether they impact the prescriptions in the Surplus Statute regarding the various interests that comprise the bundle of sticks of the ITD Campus property rights,” the filing said. “Without such a determination, Respondents are left to contend with uncertain, incongruous, and revolving legal mandates.”

In the documents, Callahan also argues that if the court does find a constitutional problem, it should be able to sever the intent language from the rest of the budget. If the entire budget is found to be unconstitutional, that could endanger millions in funding for infrastructure.

She also argues that there is nothing in the law that would obligate the state to complete the sale. The Surplus Statute outlines requirements for beginning the process of selling property, but it doesn’t include requirements that those transactions be finalized.

The agencies are seeking instruction from the court regarding their authorities over the ITD campus and the planned sale.

The Legislature’s attorneys have not filed their briefing yet, which is likely to defend the constitutionality of the case.

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 X @EyeOnBoiseGuido.