Navigating Restrictive Covenants in a Mobile Workforce

Paper plane on blue background, Business competition concept.

Savannah G. Ward

Published June/July 2022

We can all agree that 2020 and 2021 were crazy years for everyone, but labor & employment lawyers were dealt a particularly interesting hand.  From the uncertainty of mask and vaccine mandates,[1] a switch from one administration to the next, and the Biden Administration’s push toward employee-friendly policies in several areas of the law, employment lawyers have been staying busy.  We are halfway through 2022, and, aside from new laws predicated on the COVID pandemic, there is significant activity throughout the country regarding restrictive covenants—specifically, non-compete agreements.  For several decades, companies across the U.S. (outside California and a handful of other states) have utilized non-compete agreements in an effort to protect their “playbook for success” from getting into the hands of a competitor.  Over the years, and more recently this past year, non-compete agreements have been scrutinized for their tendency to unfairly restrict workers from leaving their current employer to go work for another within the industry.  As of last year, the Biden Administration has made it clear that it wants to ban or limit non-compete agreements, as “[i]nadequate competition holds back economic growth and innovation.”[2]

The world of non-competes is especially relevant considering the most significant recent trend in the job market: the mobile employee and the ability to work remotely.  If the pandemic has taught us anything, it is that (1) there are many industries where employees have the ability to efficiently and effectively work remotely, and (2) employees have lots of options, as people and their skills are needed in just about every industry/sector of the job market.  This mobility gives workers the option to look for other higher-paying opportunities elsewhere and increases aggressive headhunting expeditions to find the best candidate already trained in the industry. 

Increased employee mobility creates tension with an employer’s incentive to invest resources in an employee.  As a general rule, employers invest time, training, and resources in their employees, while giving some employees access to competitively sensitive business information such as customer and employee lists, internal business practices/models, marketing strategies, financial information, product information, etc.  With the potential for non-competes to become nonexistent, employers are now tasked with balancing the need to protect their investment in their “key” employees—along with the sensitive business information to which they have access—while also accommodating the employee mobility and flexibility that comes with “at-will” employment (should the employer wish to have an “at-will” relationship with their employees).  

Whether you represent a small business or large company, or your legal practice somehow intersects with employers or employees alike, this article examines the role restrictive covenants play in the workplace, challenges to enforcement, and best practices to account for a mobile workplace society.

The Idaho Code

While there is an uncertain future of non-competes in federal law and other states, Idaho currently follows a statutory framework from 2008 that expressly permits non-compete agreements.[3]  Idaho allows an employer to enter into a non-compete agreement with a “key employee or independent contractor,” which prevents the employee or contractor from engaging in employment after termination that is in “direct competition with the employer’s business” in order to protect the “employer’s legitimate business interests.”[4]  An agreement is enforceable as long as it is “reasonable as to its duration, geographical area, type of employment or line of business, and does not impose a greater restraint than is reasonably necessary to protect the employer’s legitimate business interests.”[5] 

The statute sets out four important rebuttable presumptions that must be taken into account: (1) a non-compete’s time limit of 18 months or less is considered presumptively reasonable; (2) a non-compete’s geographical limitation is presumptively reasonable if it is restricted to areas where the key employee/independent contractor “provided services or had a significant presence or influence”; (3) an agreement that limits subsequent employment to the same “type of employment or line of business” performed while working for the employer is presumptively reasonable; and (4) an employee is presumptively “key” if they are paid in the top 5% of the employer’s employees.[6]  Non-compete agreements that fall within all four of these presumptions shift the burden on the former employee to show that the agreement is unreasonable.

There is very little case law in Idaho interpreting this statute.[7]  While the statute itself explicitly provides Idaho employers the ability to enter into such agreements, Idaho courts have tended to approach those agreements with a certain amount of caution and skepticism.  That, coupled with the fervent air of change surrounding enforceable non-compete agreements, may lead Idaho to become yet another state to further restrict the reasonableness of non-competes.  For the moment, they are permissible, but to be sure, any reasonable and enforceable non-compete agreement in Idaho must be meticulously drafted within the realm of the presumptive reasonableness laid out by the statute.   

“While the statute itself explicitly provides Idaho employers the ability to enter into such agreements, Idaho courts have tended to approach those agreements with a certain amount of caution and skepticism.”

Other restrictive covenant tools

Non-competes, while effective when executed properly, are but one tool available.  Similar to non-competes, non-solicitation agreements typically prohibit both current and departing employees or independent contractors from soliciting the employer’s customers/vendors/etc. and the employer’s remaining employees.  These types of agreements are typically used for those who work closely with customers/vendors, have been in a supervisory position, or have specific knowledge about other employees.  At the moment, it is unclear if non-solicitation agreements are limited to “key” employees like with non-compete agreements.[8]

Additionally, confidentiality (or non-disclosure) agreements are suitable for all employees/independent contractors who have access to business information that is confidential, proprietary, and/or trade secrets.  Confidentiality agreements can and should be addressed throughout an employee handbook and various policies that may touch on related subject matter, i.e., policies specifically related to non-disclosure and proprietary company information, social media, and IT. 

Finally, the Idaho Trade Secret Act prohibits the misappropriation of a trade secret.[9]  A trade secret is information that “(a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use” and “(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”[10]  Misappropriation is defined as the improper acquisition of a trade secret, or unauthorized disclosure or use of a trade secret by someone who improperly “acquire[d] knowledge of the trade secret,” or who “[a]t the time of disclosure or use, knew or had reason to know that [his/her] knowledge of the trade secret was” due to the information having been acquired improperly, through a breach of duty, or by accident or mistake.[11] 

Although the trend throughout the country is to move away from competitive restrictions, and even if Idaho joins the trend, Idaho employers can protect their interests through the use of non-solicitation agreements and confidentiality agreements, and by pursuing statutory and common law claims when appropriate.  These include claims for tortious interference and claims under the Idaho Trade Secrets Act, which are unlikely to be affected by the potential risk of non-competes falling out of favor.

The shifting landscape of non-competes at the Federal and State levels

In July 2021, President Biden signed an executive order (the “Order”) directing the Federal Trade Commission (“FTC”) “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”[12]  While the Order itself does not ban non-competes, it encourages the FTC to create employee-friendly laws and regulations in an effort to stimulate movement and competition in the American workforce.  

Before the Order, the Freedom to Compete Act (the “Act”) was first introduced to the Senate in 2019 to amend the Fair Labor Standards Act (“FLSA”).[13]  The Act prohibits an employer from enforcing, or threatening to enforce, non-compete agreements for entry level, lower wage workers, but it was stalled in the Senate Committee on Small Business and Entrepreneurship.[14]  After President Biden’s Order was announced, the Act was reintroduced to the Senate on July 15, 2021 and is still under review by the Senate Committee on Health, Education, Labor, and Pensions.[15]  It is unclear what actions the Committee plans to take with this Act. 

The FTC has yet to officially respond to President Biden’s Order, but it is hard to ignore the obvious trend toward legislative reform.  The legislative groundwork attempted so far in 2021 could well lead to action in 2022.  If the FTC chooses to implement a “freedom to compete” rule, we can expect many legal and political challenges to the FTC’s authority to promulgate such a rule, including whether it exceeds constitutional authority, as the enforcement and regulation of non-competes has usually been handled by individual states.  Even so, if President Biden’s Order gains momentum, this power could potentially be transferred from states to federal legislators. 

This raises the question of what would happen to Idaho’s statutory non-compete framework—would it be rendered null and void?  Would Idaho’s case law addressing non-competes both before and after Idaho’s non-compete statute was enacted be superfluous?  The procedure it would take to accomplish the Order’s request for FTC intervention is confusing at best, and, should the FTC be able to regulate non-compete agreements, would have very broad implications going forward. 

Additionally, several states have begun to amend their non-compete statutes to impose stricter requirements for enforceability and to limit rebuttable presumptions.  Oregon recently enacted rules that restrict the time limit of non-competes to one year.[16]  Other states have amended their laws in order to protect low-wage earners.  For example, Nevada now specifically prohibits non-competes for employees who are paid hourly, exclusive of any tips or gratuities.[17] In Washington state, a non-compete is enforceable only as to employees whose annual earnings exceed $107,301.04 and to contractors whose annual earnings exceed $268,252.59.[18]  Additionally, a non-compete agreement signed by a Washington-based employee or independent contractor is void and unenforceable if the agreement’s choice of law provision requires the worker to adjudicate the agreement outside of Washington (assuming Washington law is deemed to apply).[19]

Currently, California has the strictest law regarding non-competes: the state doesn’t just prohibit non-compete agreements, it outright voids any contract that restrains an employee from engaging in any lawful employment.[20]  Similarly, the District of Columbia is attempting to ban both the use of non-compete agreements and any policy or agreement that prohibits employees from simultaneously working for other employers.[21]  This law would impact those entities whose key employees are valuable mainly because their services are not available to competitors.  The proposed law was set to go into effect on April 1, 2022, but was extended to October 1, 2022, in order for the Council of the District of Columbia’s Committee on Labor and Workforce Development to continue consulting with the D.C. business community.[22]

The Great Resignation

Before the pandemic, no one could have contemplated just how many employees would begin working from home so rapidly and abruptly.  Now, whether it be a positive or a negative, the American people have spoken: the option to work remotely is staying.  According to researchers at Ladders, a career site for jobs that pay $100,000 or more annually, 25% of all professional jobs that pay $100,000 or more in North America will be remote by the end of 2022, and that percentage will increase through 2023.[23]  Among North America’s largest 50,000 employers that offer high-paying professional jobs, the availability of remote opportunities jumped from under 4% before the pandemic, to about 9% at the end of 2020, and to more than 15% by the end of 2021.[24] 

Of the full-time remote workers surveyed from another study conducted by Owl Labs in 2021, 90% reported they were equally or more productive working remotely than when they were in the office; notably, 84% reported they were happier, with some saying they would be willing to take a pay cut for the opportunity, and 74% reported improvements to their mental health.[25] 

In the world of restrictive covenants, an employer’s protected information is more vulnerable than ever given the increased fluidity of the remote workforce, with no plateau in sight. 

Even before the increased prevalence of remote work, many companies faced difficulties with establishing and maintaining confidentiality protections, and it is all too easy to fail to properly retrieve company information from departing employees.  Common enforcement challenges include poorly drafted or outdated non-compete agreements, lack of solid employment policies, and poor enforcement of policies and protocols designed to protect confidential information.  In the agreements themselves, the restrictive period set is either unreasonable, or an employer waits too long to enforce the non-compete, resulting in failed legal attempts to enforce the agreement.

With a mobile society, employers could face problems not fully anticipated before the pandemic.  For instance, choice of law provisions could come into play if an employee works remotely in a state with different non-compete agreement laws than the state where the employer is located.  Consider the employee who lives in Idaho but works for a New York employer.  Does the law of New York or Idaho govern?  This is a difficult analysis and makes for extra confusion for employers.  Also, an employee could be working from home for one employer while doing the same thing for another employer.[26] Additionally, employees could be using their own personal devices while working from home and/or downloading and storing information on a USB device or external hard drive, with limited or no monitoring of their activity.

Employers need to now shift their focus to take proactive measures to inhibit the outbound flow of protected information before any violation occurs.  This year, the best practices companies should follow in a state where non-competes are still allowed include:

  • updating employee policies to properly define their expectations regarding what is considered confidential, proprietary, and trade secret information and that it is not to be disclosed;
  • require employees to acknowledge the policies;
  • make sure employees signing a non-compete are “key” employees, and that the competitive restriction is sufficiently narrow to protect legitimate business interests;
  • have an on-boarding process when first hiring employees;
  • clear choice of law provisions within the non-compete; and
  • an exit process when employees leave to retrieve any company devices or information immediately and remind outgoing employees of any post-separation obligations. 

For remote workers, companies could install some sort of software that prohibits non-company USB or storage device use or encrypt certain information that can only be accessed by authorized users.  If remote workers use their own devices while working from home, then there could be a policy or agreement wherein the employee gives their consent to allow the employer to recover its data at the time of separation, although employee privacy concerns may be implicated by this approach.

Conclusion

To sum up, in 2022 and moving forward, the tenuous applicability of non-compete agreements is questionable.  Even so, businesses and practitioners can no longer afford to be reactive.  Proactive approaches—updating policies, having on-boarding and exiting processes, and IT procedures to prevent unauthorized or inappropriate access to protected information—are essential. 

While Idaho provides for non-compete agreements, an enforceable non-compete agreement will be the carefully drafted one which restrains only what is necessary to protect an employer’s legitimate business interests and is consistent with the presumptive reasonableness standards outlined in the statute.  Using these and the other tools discussed above will go a long way to protecting employers’ interests even if the trend of disfavoring or disallowing non-competition restrictions spreads and continues. 


Savannah Ward is an attorney in Boise, where her practice is mainly focused on employment law. Previously, Savannah clerked for Judge Amanda K. Brailsford at the Idaho Court of Appeals.

[1] Aria Bendix et al., CDC mask mandate for planes, trains no longer in effect after judge rules it ‘unlawful’, NBC News(Apr. 18, 2022, 10:25 PM) https://www.nbcnews.com/news/us-news/florida-court-overturns-cdc-travel-mask-mandate-unlawful-rcna24853 (last visited May 1, 2022).

[2] The White House, FACT SHEET: Executive Order on Promoting Competition in the American Economy (Jul. 9, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/ [hereinafter Executive Order] (last visited Apr. 13, 2022). 

[3] Idaho’s non-compete statute—while substantively identical to its 2008 version—was briefly amended in 2016 to add a “rebuttable presumption of irreparable harm” paragraph that imposed defendants to “show that the key employee . . . has no ability to adversely affect the employer’s legitimate business interests.”  This amendment caused great criticism throughout the state and was subsequently repealed in 2018.

[4] Idaho Code Ann. § 44-2701 (West 2008).  

[5] Id. 

[6] Id. at § 44-2704(2)-(5).

[7] See Bybee v. Isaac, 145 Idaho 251, 256 178 P.3d 616, 621 (Idaho 2008) (holding that Idaho “courts are less strict in construing the reasonableness of such covenants ancillary to the sale of a business.”); Brand Makers Promotional Prods., LLC v. Archibald, No. 44926, 2018 WL 5076135, at *1 (Idaho Ct. App. Oct. 18, 2018) (holding that based on the statute, the non-compete agreement imposed more restraint on employee than reasonably necessary to protect the employer’s interests).

[8] See Melaleuca, Inc. v. Bartholomew, 2012 WL 1677449, at *12 (D. Idaho May 14, 2012) (holding that a non-solicitation agreement “is similar enough to a non-compete agreement that it is appropriate to apply the same legal standard for determining its enforceability.”).  However, due to settlement outside of the court, the district court ruled that its “May 14, 2012 Memorandum Decision and Order . . . is hereby vacated in its entirety and is of no effect for any purpose.”  Melaleuca, Inc. v. Bartholomew, 2013 WL 1459149, at *1 (D. Idaho Feb. 27, 2013) (emphasis added).   

[9] I.C. § 48-801 et seq.

[10] Id. at § 48-801(5).  See also Basic Am., Inc. v. Shatila, 133 Idaho 726, 734, 992 P.2d 175, 183 (1999) (citing Restatement of Torts sec. 757 cmt. b (1939)) (wherein the Idaho Supreme Court adopted the six factors identified by the Restatement of Torts to help establish whether a trade secret exists). 

[11] I.C. § 48-801(2).

[12] Executive Order, supra note 1. 

[13] Freedom to Compete Act of 2019, S.124, 116th Cong. (1st Sess. 2019).

[14] See id.

[15] Freedom to Compete Act of 2021, S.2375, 117th Cong. (1st Sess. 2021). 

[16] Or. Rev. Stat. § 653.295 (2022).

[17] Nev. Rev. Stat. § 613.195(3) (2021).

[18] Wash. Rev. Code § 49.62.040 (2020) (requiring the Department of Labor & Industries to adjust salary thresholds annually).

[19] Id. at § 49.62.050.

[20] Cal. Bus. & Prof. Code § 16600 (West 2022). 

[21] Ban on Non-Compete Agreements Amendment Act of 2020, 2020 D.C. Sess. L. 23-209 (West).

[22] Ban on Non-Compete Agreements Applicability Emergency Amendment Act of 2022, § 2 (D.C. Act 24-350, Mar. 28, 2022, 69 DCR 2622).

[23] Ladders, 25% of all professional jobs in North America will be remote by end of next year (Dec. 7, 2021), https://www.theladders.com/press/25-of-all-professional-jobs-in-north-america-will-be-remote-by-end-of-next-year (last visited Apr. 13, 2022). 

[24] Id.

[25] Bryan Robinson, Ph.D., Remote Work Is Here To Stay And Will Increase Into 2023, Experts Say, Forbes(Feb. 1, 2022, 6:24 AM) https://www.forbes.com/sites/bryanrobinson/2022/02/01/remote-work-is-here-to-stay-and-will-increase-into-2023-experts-say/?sh=7234cfdf20a6 (last visited Apr. 13, 2022).

[26] But see D.C.’s proposed legislation that would prohibit an employee from working simultaneous jobs.

Consistency and Change Can Comfortably Coexist

Isometric blocks of various colours forming arrow. Family, teamwork, assimilation, development and variety concept. Flat design. EPS 8 vector illustration, no transparency, no gradients

Kurt D. Holzer

President

Fourth District

Published June/July 2022

“Be well, do good work, and keep in touch”

-Garrison Keillor

It is a bit daunting trying to produce something insightful/pithy/entertaining/useful for this, the last President’s column I get to write. Thanking all who have made the experience great is, of course, essential. So, to my fellow Commissioners, the Idaho State Bar staff, the volunteers, and all the lawyers the Commission has interacted with over the past three years – thank you.

Three years of service passed in a flash. Serving in this role, as has been the comment of every current and former Commissioner I’ve spoken to, is a satisfying and invigorating experience. 

A feeling of the inevitability of change permeated the years I’ve served.  The Bar and its members have been engaged in important discussions about behavioral norms and the role of the Bar in ensuring the sense of belonging, safety, and inclusion all its members deserve. That is in part reflected in the ongoing conversations about proposed Rule 8.4(g). 

Other change, like the exploration of legal regulatory reform and expansion of who can deliver legal services remains a work in progress.  The Idaho State Bar (ISB) saw a very concrete change in the retirement of Brad Andrews as Bar Counsel and the start of the era of Bar Counsel Joe Pirtle. Another substantial pending change is the work on the upcoming “Next Gen Bar Exam” which will await students who matriculate in 2023.

The most significant change on the horizon for the ISB is that sometime too soon we will say farewell to the incredible, steady, insightful, and beyond competent leadership of Executive Director Diane Minnich. 

But some things stay steady. Spending time with the volunteer bar graders in Lewiston recently, the Commissioners got to see the hands-on commitment of Idaho lawyers from across the state to upholding the quality of the profession in Idaho.  Seeing, speaking to, and speaking with this generation of lawyers who took that test is itself quite uplifting.  The steady reality of newly-minted lawyers going forth to change their lives and the lives of others remains a constant.

So, I will wrap this up with a reminder of things real and aspirational about being an Idaho lawyer that shouldn’t change.  

Keeping honesty as a touchstone.

We need to remain cognizant of our own limitations and avoid making promises to judges, attorneys, or clients we cannot keep.  Telling the truth is always the only policy to follow in practice even when doing so is difficult.

Real Idaho lawyers make sure we don’t misrepresent facts to anyone.

We also admit our mistakes when they come, and they do come.  Nobody is perfect, neither our adversaries nor clients really expect us to be.

Maintaining respect for our clients.

Taking the time to listen and understand our clients’ goals and what they need is an essential act. Those needs are sometimes divergent from our lawyerly perspective. Clients often encounter us at times of crisis when life is presenting them with pain, frustration, or loss. They too are imperfect. They can carry unrealistic expectations to our relationship. We get hired to be on their side.  Even when we deliver bad news or uncomfortable truths, we need to be doing it with an understanding of the client.

Respect manifests when we get our client’s tasks done in a timely manner. Delay, or perceptions thereof, are a big source of client frustration and dissatisfaction. Call them back, answer their letters, reply to their emails, and keep them informed.

Assessing our client’s problem with an objective mind reflects respect as well. The job is to help solve these problems. We can do that best when we remain objective.  We can be committed to their ends without losing sight of the real playing field.

Showing respect for our adversaries.

Often inter-lawyer conflict or incivility has a foundation in “otherness” or a lack of familiarity. The more broadly we know our professional colleagues, the less likely we are to be unprofessional. As our Bar gets larger, it becomes harder to have the same relationships that have traditionally defined practice in Idaho. Don’t let another lawyer’s unprofessional conduct result in a tit for tat response. Treat others with dignity and respect, regardless of how they treat you.

Don’t practice angry. Behave in a way that will get a positive response. 

Eliminate unnecessary conflicts with your adversary. If your adversary asks for a concession, favor, or time extension and it is within your power to say yes then by all means grant the request. Someday we are each in the position of making a similar request. Take into account the demands on, and limitations of, others

Embracing respect for our profession.

Winning and losing is part of what many of us in the practice experience every day. In either instance, we remain public representatives of the legal system.  As officers of the court, we need to support our oaths and the rule of law. It is certainly okay to believe a decision-maker made an error. It’s okay to be disappointed, but it’s not okay to be disparaging.  Temper your commentary about the judge, other attorney, or jury.

Set a positive tone about the system for your client. They likely won’t hold respect for the system if we don’t.

Join a Section, specialty bar organization, or volunteer for one of the ISB committees. Go to the Bar’s Annual Meeting.  Attend local CLEs.  Be part of the life of the profession.

I appreciate the opportunity members of the 4th District gave me to serve. And look forward to my final weeks culminating in the first Idaho State Bar Annual Meeting to be held in Twin Falls. 

Finally, in the words of Douglas Adam: “So Long, and thanks for all the fish.”


Taylor-Benjamin

Kurt Holzer primarily represents injured individuals as a plaintiff’s trial attorney at Hepworth Holzer LLP. in Boise. He is thankful for the mentors, colleagues and adversaries who have made, and continue to make, the practice of law in Idaho a joy.

Extended Foster Care: Because Needing Support Does Not Stop at Eighteen Years of Age

Concern for others. Woman watering and growth flower in which happy girl sits. Tutor cares about the child. Mental health concept. Vector illustration

Catherine E. Enright

Published February 2022

 Many of you, like me, may not remember what happened on your 18th birthday.  We remember that we magically became an adult capable of making most adult decisions overnight.  We may even remember the presents we received or the celebrations we had on that enchanted day.  However, I would venture to say that, like me, you probably had no idea of the true legal consequences of turning 18 because you had a support network there to help continue to guide you and provide for you.  For example, many of us were still in high school, and although 18, our daily life remained largely unchanged.  Unlike others, the true consequences and realities of adulthood were still far off.  But for many children in the foster care system, their 18th birthdays were of much more consequence than your 18th birthday.

In Idaho, that all changed for children in foster care beginning on October 1, 2021, when Idaho implemented its extended foster care (EFC) legislation.   That was the day that meant the world for one youth, whom I currently represent in a child protection matter.  We will call this youth “Timmy.”  For Timmy, the changes that were made on October 1st and the extension of foster care allowed him to feel more normal on his 18th birthday, which came later in October.  For Timmy, the extension of foster care beyond his 18th birthday meant that he could focus on school and transitioning out into the adult world in the same way that any other average Idahoan youth would.  This article will introduce you to Timmy and his story, and then take you through the state and federal extended foster care requirements.

The story of Timmy

To give a picture of cases where EFC is necessary and where it works, I want to share a little about Timmy’s story.  Timmy came into foster care when he was 15 years old.  After an initial stay with a foster family here in Idaho, it became apparent that Timmy needed some additional psychological services and a higher level of care, so the Idaho Department of Health and Welfare (IDHW) found an appropriate placement in a therapeutic group home out of state, where Timmy has remained ever since.  His mother, unfortunately, passed away about a year ago, and his father has never actually worked his case plan, but it was never Timmy’s desire to terminate parental rights, and it was not in Timmy’s best interests as there was no other family or adoptive placement suitable for Timmy and his needs, especially after the tragic passing of his mother.

Timmy is set to graduate high school with his diploma in summer of 2022, but he just needed a place to stay at least to get him through his education.  All of the support people that Timmy knows now are in the therapeutic group home, and he wants to stay at that home at least until he graduates.  By staying at that home, he can also continue to receive counseling with his counselor, with whom he has a strong bond.  He can also continue in the same school with the same teachers.  The home provides him with hands-on training in various trades which Timmy can pursue after leaving foster care.  If EFC had not come into existence, Timmy would not have continued to have all of these services or supports. 

What is extended foster care and how was it created?

Extended foster care is a term for continuing a youth in the custody and control of the IDHW beyond his 18th birthday and up to his 21st birthday.[1]  Since the youth is already 18 and technically an adult, it is a voluntary program, which means the youth has to sign on to continue being subject to the rules and authority of IDHW and/or the foster parent.  In that way, EFC is very much like when your child turns 18 and continues to live at home.  This may be to avoid rent or food costs, but it may also be that the newly minted 18 year old is still finishing high school, and is preparing for their next chapter.  EFC allows the youth to continue living in foster care while requiring the youth’s “parent” (the State of Idaho) to continue to help provide his basic necessities.

“Extended foster care is a term for continuing a youth in the custody and control of the IDHW beyond his 18th birthday and up to his 21st birthday.”

EFC in Idaho was created under H.B. 336, which was signed into law by Governor Little on April 23, 2021.[2]  H.B. 336 amended several sections of the Idaho Code relating to juveniles in order to comply with the Family First Prevention Services Act (FFPSA) passed into law by Congress in February 2018.  FFPSA was created and passed as a way to turn the focus of the child welfare system toward providing resources so that children could safely remain with their families, if at all possible, rather than going through the trauma of a removal from the home and placement into foster care.[3]  Although Idaho lumped EFC in with the other changes being made in accordance with FFPSA, the ability to provide extended foster care came from amendments to the title IV-E program by way of the Federal Fostering Connections to Success and Increasing Adoptions Act of 2008.[4]

The two changes to the Idaho Code under H.B. 336 to create extended foster care were relatively minor.  The first change was to simply add a section to I.C. § 16-1622, which is the portion of the Child Protective Act that deals with review hearings, allowing the court to extend foster care for a person between the ages of 18 and 21 in order to help that person achieve “successful transition to adulthood,” provided that certain other qualifications are met.[5]  The other minor change was to add a line to the Idaho Code section about the retention of jurisdiction in Child Protective Act cases.  This change allows courts to retain jurisdiction over the child beyond his 18th birthday if jurisdiction is extended by the court pursuant to I.C. § 16-1622(5).[6]

Who qualifies for EFC?

The qualifications for EFC are few but rather broad.  Of course, a person must be 18 years or older to qualify for EFC, and he will only qualify up until his 21st birthday.[7]  As previously noted, the youth must voluntarily agree to EFC as well since he is technically an adult capable of living on his own and making most adult decisions by law.  Those are the more obvious and general conditions.  However, there are more specific conditions which must be met.

First, the youth must have previously been in the custody of the State of Idaho up until his 18th birthday.[8]  This provision is included as the program was meant to be a transitional program for youth to be able to successfully exit foster care and enter into the adult world.  If this was not a qualification, any person ages 18 to 21 could request to be a dependent of the State of Idaho, which is not the intent of either the foster care program, or the EFC program. There are other social programs available for those not within the foster care system.

Once those qualifications are met, the Idaho Code requires that we look to the United States Code for the additional qualifications, specifically those under 42 U.S.C. § 675(8)(B)(iv).[9]  Under that section, the youth must meet one of five criteria.  He must either be: 1) completing high school or a high school equivalent program, such as a GED program; 2) enrolled in college or vocational education; 3) participating in “a program or activity designed to promote, or remove barriers to, employment;” 4) employed at least 80 hours per month; or 5) have a medical condition which renders him incapable of doing activities 1-4 and such incapability is regularly documented and updated in the case plan for the youth.[10]  It would be rather difficult not to meet one of those five qualifications, so the vast majority of youth who would previously have “aged out” of foster care at 18 will now qualify for EFC.

What are the benefits of EFC?

Now, some of you die hard child protection practitioners may be saying, “But what about the Independent Living Program?  Didn’t that already cover helping youth transition into adulthood?”  The short answer to that is yes and no.  There are several differences in the Independent Living Program and EFC.  While Idaho’s Independent Living Program is meant to help youth ages 14-21 develop skills necessary to transition from foster care to being able to live on their own, EFC has many additional benefits and services available on top of the Independent Living Program.[11] 

The eligibility criteria for the Independent Living Program is vastly different than the EFC qualifications, and there are some disqualification factors to consider with the Independent Living Program as well.  To be eligible for the Independent Living Program, the youth must have been in care for 90 cumulative days at some point after his 14th birthday, but there are only certain types of placements which would qualify, and even if adopted or having achieved permanency under a legal guardianship, youth can still qualify for the Independent Living Program.[12]

The nice thing is that the two programs are not mutually exclusive, so you can still receive services under the Independent Living Program while also being in EFC program.  For the youth, the only real drawback to the EFC program is the youth must give up some autonomy for the continued oversight of IDHW and the courts.  EFC allows the courts to continue having jurisdiction over the youth and the case for as long as the youth remains in care or until EFC eligibility ends at age 21.[13] 

In many cases, it may be of extra benefit to the youth to still continue to have relationships with the judges, social workers, attorneys, and guardians ad litem who have been a part of the youth’s life for quite some time and may even be the only family-like support people that the youth has.  Most often, the attorney for the youth is a court-appointed attorney from a public defender’s office like mine, and once a child protection case closes, our contact with the youth usually ends unless the contact continues on the attorney’s personal time.

What is the process for EFC?

As EFC is a new program in Idaho, the process for EFC is evolving and subject to change.  Timmy was the first case of EFC in Idaho that I am aware of, so of course none of the professionals involved in Timmy’s case had any idea what we were doing.  Many thanks and kudos go out to the people at IDHW, on the Child Protection Committee, and working for the Administrative Office of the Courts for answering my frantic calls and emails as we tried to figure out what needed to happen by when and which forms to use.  After consultation with those wonderful individuals, the process we used for Timmy’s case was actually fairly painless, but I do suggest starting the process early by doing everything you can to prepare the youth and to make sure the court has all of the necessary information and documents to order the continued jurisdiction.

First and foremost, you need to make sure that the youth actually wants to participate in EFC and will sign on to the program voluntarily.  EFC is entirely based on the cooperation of the youth, so that is a piece you will want to get established earlier than when the youth turns 18.  For Timmy, we had several conversations about EFC starting about four or five months before his 18th birthday.  If the youth is already engaged in the Independent Living Program, they will have an Independent Living Transition Planning meeting to create a transition plan for the youth, which will also be of great benefit. 

I strongly recommend that that transition meeting or another similar meeting occur at least two months before the youth’s 18th birthday.  The transition plan is different than the case plan.  In EFC cases, the social worker will need to develop a new case plan for EFC.  These EFC case plans look similar to a regular case plan in a Child Protective Act case, but there is a different focus, as the case plan for EFC will focus more on service needs of the youth and how those needs will be fulfilled rather than what the parents or various parties need to do to address areas of concern and reunify with their child.

Prior to the youth’s 18th birthday, the social worker will need to submit the new case plan to the court along with an Affidavit for Review of Transition Plan and Notice of Extended Foster Care.  That affidavit is created by the social worker and should include all of the information necessary for the judge to determine that the youth meets eligibility requirements for EFC and to authorize continued jurisdiction.  The affidavit submitted in Timmy’s case was a stock form where the social worker was able to check the necessary boxes, such as what grounds for EFC the youth met under 42 U.S.C. § 675(8)(B)(iv).  In that affidavit, it will also include what the transition plan will be and goes through each individual health and education passport document, which are documents like birth certificates, driver’s license, social security card, medical insurance card, and others that a youth will need going forward into adulthood.

Once the necessary documentation has been submitted, there should be a hearing in the Child Protective Act case just prior to the youth’s 18th birthday.  At that time, the court can hear from the youth himself about whether he is voluntarily entering into EFC, and the parties can go over any unresolved issues or questions that the court may have.  The court will then have to specifically authorize EFC and specify the grounds in 42 U.S.C. § 675(8)(B)(iv) under which the youth qualifies.  The court should specify a set period of time for which EFC is authorized, as required under I.C. § 16-1622(5).  The court should also set another regular review hearing within six months.  On the youth’s 18th birthday, once he has reached the age of majority and has the ability to legally sign onto an agreement, the youth will need to sign on to the case plan and any other documentation required by IDHW to continue to provide services.

Conclusion

Thus, while EFC may have just been achieved by two minor adjustments to the Idaho Code, as demonstrated through this article, it changed at least one life immensely.  For many of us, turning 18 is a cause for celebration, but for others, it is a cause for uncertainty.  With EFC, that uncertainty can be turned into celebration, transition, and opportunity.  I encourage practitioners to consider whether EFC could help in any of your cases.

BIO:

            Catherine is a Deputy Public Defender with the Bonner County Public Defender’s Office.  She has worked in child protection law in various capacities since 2010 and is recognized as a Child Welfare Law Specialist by the National Association of Counsel for Children.  She lives in Sandpoint with her husband, dog, and two rambunctious guinea pigs.


Catherine E. Enright is a Deputy Public Defender with the Bonner County Public Defender’s Office.  She has worked in child protection law in various capacities since 2010 and is recognized as a Child Welfare Law Specialist by the National Association of Counsel for Children.  She lives in Sandpoint with her husband, dog, and two rambunctious guinea pigs.

Endnotes

[1] I.C. § 16-1622(5)

[2] https://legislature.idaho.gov/sessioninfo/2021/legislation/H0336/

[3] https://www.childwelfare.gov/topics/systemwide/laws-policies/federal/family-first/

[4] https://www.childwelfare.gov/pubpdfs/extensionfc.pdf

[5] I.C. § 16-1622(5)

[6] I.C. § 16-1604(1)

[7] I.C. § 16-1622(5)

[8] Id.

[9] Id.

[10] 42 U.S.C. § 675(8)(B)(iv)

[11] https://healthandwelfare.idaho.gov/services-programs/children-families/child-and-family-services-and-foster-care/about-independent

[12] https://healthandwelfare.idaho.gov/services-programs/children-families/child-and-family-services-and-foster-care/eligibility

[13] I.C. § 16-1604(1).

Oregon’s New Indian Child Welfare Act: Highlights for Idaho Practitioners

Shanna C. Knight

Published February 2022

As an Idaho practitioner, unless you represent a tribe, you might be wondering why you should care about Oregon’s new Indian Child Welfare Act (“ORICWA”). After all, Idaho practitioners are already required to follow the federal Indian Child Welfare Act (“ICWA”). If so, I would answer first that Oregon’s new law demonstrates best practices should be applied to not only Indian children[1], but also all children in the child welfare system. Over time child welfare practices and laws have recognized many of ICWA’s tenets as best practices for all children – including keeping them in their communities, recognizing and supporting their cultural connections, and working to keep families together in the first place. Second, I would point out that people move, of course, and often with little thought to little things like jurisdiction.

Our state borders are porous, and many families move around for school, military service, love, and work. In addition, the matters covered by ORICWA apply to many different kinds of child custody proceedings. Whether your practice involves family law, child dependency law, or both, this law will be useful to know if you find yourself representing a family, child, or tribe in a matter that lands in Oregon state court or under that state’s jurisdiction. Even if you do not find yourself practicing under ORICWA, I hope you take away some good information that helps you support your clients – and families – in the future.

Background: Federal ICWA

There is much to talk about when it comes to ICWA, but if you are new to this topic, I encourage you to pursue your own research. I have provided some resources for readers for more in-depth information in the endnotes. To start, Congress passed the federal Indian Child Welfare Act in 1978 (“ICWA”).[2] This law sets the foundations for ORICWA, and you should also be aware that there are binding regulations[3] and somewhat unhelpful (non-binding) guidelines, as well. Both the regulations and the guidelines came out in 2016. If you want to look at some good guidelines, I recommend taking a look at the 2015 guidelines,[4] which are much more helpful and representative of best practices. If you are short on time, I recommend starting with the regulations, which also cover the law.

ICWA applies whenever there is reason to know that a child is an Indian Child in a child-custody proceeding in state court. ICWA defines an Indian Child as a child who is (i) under 18 and either (ii) a member of a federally-recognized tribe or (iii) the biological child of a member and eligible to become a member themselves. A child custody proceeding does not include custody disputes between parents, but rather several involuntary and voluntary proceedings that would remove a child or terminate parental rights.

The statute bears close reading here, because these proceedings not only include foster care and termination, but guardianship cases, as well. The law was passed in light of evidence that Indian families commonly faced unwarranted removal of their children from their homes – so much so that before the law was passed in 1978, at least a quarter of all Indian children were being taken, and most of them were being placed outside their families and cultures. Over 30 years later, the statistics are not much better, as many lawyers and judges either struggle with or fail to apply the law.

In order to better enforce the law and fill in the gaps that the statutes and regulations have left behind, nine states have enacted their own laws. Section 1921 of ICWA provides that where state or federal law provides a higher standard of protection, the court shall apply the higher standard. Another state neighbor, Washington, passed its own ICWA law in 2011. Oregon is one of the more recent states to join this trend. Oregon’s state legislature unanimously passed ORICWA[5] on June 26, 2020 and the law went into effect on January 1, 2021.

Comparing ORICWA with the Federal ICWA

ORICWA restates many sections of the original ICWA and the 2016 federal regulations; however, there are some key differences. The remainder of this article will focus on how ORICWA addresses the best interests of an Indian child, fathers’ rights, qualified expert witnesses, active efforts, and placement preferences. However, readers should also be aware of ORICWA’s sections on jurisdiction, transfer, notice, right to counsel for the Indian child and parents, and the right of each party to examine documents. Placements and terminations can be overturned if these sections are not followed. To learn more, I encourage you to read the statute, but I also would like to point out that there is a very helpful benchbook available to you.[6]

Best Interests of an Indian Child

Section 5 of ORICWA contains a unique best interests of the Indian child analysis that the federal law does not. Under ORICWA, the juvenile court is instructed to consider the following five factors in consultation with the Indian child’s tribe: (i) the protection of the safety, well-being, development and stability of the Indian child; (ii) the prevention of unnecessary out-of-home placement of the Indian child; (iii) the prioritization of placement of the Indian child in accordance with ORICWA’s placement preferences; (iv) the value to the Indian child of establishing, developing or maintaining a political, cultural, social and spiritual relationship with the Indian child’s tribe and tribal community; and (v) the importance to the Indian child of the Indian tribe’s ability to maintain the tribe’s existence and integrity in promotion of the stability and security of Indian children and families.

Before ORICWA, courts could infer some of these factors into the best interests of the child analysis; however, many did not. ORICWA clearly states that the enforcement of the law is meant to effectuate the best interests of the child by taking into account cultural significance. Many of these factors have been repeatedly shown to support the resiliency of all children removed from their homes.[7] It is my hope to someday see many of these factors integrated into the best interests of the child analysis for all children.

Fathers

Unmarried Indian fathers have had a fraught history of losing their children under ICWA. ORICWA’s language is similar to the federal regulations in that paternity can be established under state, federal, or tribal law. However, ORICWA goes further to say that it also recognizes fathers who are recognized in accordance with tribal custom or if the man openly proclaims to be the father in court, to the Indian child’s family, to Oregon’s Department of Human Services, or to an Oregon licensed adoption agency.

Qualified Expert Witness

ICWA has always required that a qualified expert witness (QEW) testify before the court regarding whether continued custody by the parent or Indian guardian is likely to result in serious emotional or physical damage to the child, whether active efforts have been made, and the child’s tribe’s social and cultural standards around child rearing. However, historically many state agencies would just have a staff member, usually not a tribal member, and sometimes even the child welfare worker on the case, fill this role. That last practice was finally prohibited by the federal regulations, but petitioners still often fell short of finding a good QEW.

Having a QEW means educating the court on tribal practices and it is really meant to disrupt western bias in the placement of Indian children. For example, many children have been disproportionately taken away simply because many different adults in the community were involved in raising children, which does not really fit with western society’s predominant views on family structure (e.g., the nuclear family unit). What may seem like neglect to an outsider, if both parents are away, is in reality a large network of aunties, uncles, grandparents, and more, taking care of the children. A QEW should be able to testify to this and clarify cultural misunderstandings.

To address the continued problem of getting this information before the state court, Section 17 of ORICWA specifically lists out who can be a Qualified Expert Witness, in order of priority: (i) a member of the Indian child’s tribe or another person of the tribe’s choice who is recognized by the tribe as knowledgeable tribal customs regarding family organization or child rearing practices; (ii) a person having substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child’s tribe; or (iii) any person having substantial experience in the delivery of child and family services to Indians and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribes with cultural similarities to the child’s tribe.

ORICWA also allows for other professional testimony, but prohibits any petitioning party or the employees of Oregon’s Department of Human Services from serving as a qualified expert witness or a professional for purposes of giving testimony.

Active Efforts

Most child dependency proceedings rely on a reasonable efforts standard. This means that the petitioning party or child welfare services is required to provide reasonable efforts to try and keep families together, or reunite the child with them if the child has been removed. In 1978 ICWA raised the standard to active efforts; however, the law was vague and the standards of care a family received varied widely from state to state. The federal regulations helped to reinforce that active efforts really are a higher standard, but the examples in the guidelines were muddy. Section 18 of ORICWA emphasized the language of the regulations, but also offers specific requirements that make it easier to know if the petitioner or child welfare agency is on the right track and give the court an idea of what to look for.

ORICWA is clear that active efforts are a higher standard than reasonable efforts and requires that they must: (i) be documented in detail in writing and on the record; (ii) include assisting the Indian child’s parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan; (iii) include providing assistance in a manner consistent with the prevailing social and cultural standards and way of life of the Indian child’s tribe; (iv) be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians and tribe; and (v) be tailored to the facts and circumstances of the case.

Here is one scenario comparing reasonable efforts with active efforts under ORICWA: Regarding a reasonable efforts standard, the petitioning party, such as the child welfare agency, might provide parents with a referral to services, such as to a Positive Parenting class and then follow up with the class’s teacher to ensure the parents attended and were engaged. In an active efforts scenario, the petitioning party might meet with the family to determine the best services, work to overcome barriers like scheduling during work and finding childcare, locate culturally specific resources like Positive Indian Parenting or Parenting in 2 Worlds,[8] and offer the parents a ride to class. Afterwards, the petitioning party would check in with the parents to see how the resource was working for them. Active efforts are much more likely to ensure that families engage, feel empowered, and have a meaningful chance to stay together or reunite.

Placement Preferences

While the federal ICWA and the regulations have established placement preferences for temporary and permanent removal, ORICWA’s Section 23 goes in depth into several different scenarios.

For substitute care, ORICWA first directs the petitioner to place children according to the child’s tribe’s preference. If such preferences are not available, then, in order of priority: (i) with extended family; (ii) in a foster home approved by the tribe; (iii) in a foster home with an Indian parent; or (iv) in an institution that meets the Indian child’s needs and is approved by a tribe or operated by an Indian organization.

For guardianships, ORICWA again refers to tribal preference, but if unavailable then, in order of priority: (i) with extended family; (ii) with the family of a tribal member; or (iii) with an Indian family.

ORICWA also has a process for courts to follow in the event that a child is placed outside the placement preferences. In order to begin the process a party must move to make a placement contrary to the placement preferences, and the motion must detail why good cause exists. If there is an objection to the motion, the court must hold a hearing. Good cause may be based upon: (i) the Indian child’s preference; (ii) the presence of a sibling attachment; (iii) the extraordinary needs of the Indian child; or (iv) proof that the petitioner performed a diligent search and was unable to find a home that met the placement preferences.

ORICWA does not accept (i) perception of the tribe’s justice or social services system; (ii) perception of the tribe’s justice or social services system; (iii) distance; or (iv) ordinary bonding and attachment as evidence of good cause.

Conclusion

ORICWA is one of the newest additions to an already large body of Indian Child Welfare law. This law is really important to understand if our clients or their families fall under Oregon jurisdiction. Even more, though, it may also help teach us about best practices in other areas of child welfare, and support more children by keeping them in their communities, in touch with their cultures, and connected to their extended families. All of these things are a part of the best interests of each and every child.

Although there is so much more to talk about, I hope that this article gives you a good place to start and that you will keep ORICWA’s lessons in mind the next time you practice.

To learn more about ICWA View the Native American Rights Fund’s short film on ICWA available on YouTube at https://youtu.be/VJCqeauLvY8. Access the National Council of Juvenile and Family Court Judges Benchbook available at www.ncjfcj.org. To learn more about ORICWA: look up the ORICWA 2021 Judicial Benchbook (link available in the end notes).


Shanna Knight is a staff attorney at the Small Business Legal Clinic at Lewis & Clark Law School in Portland, Oregon. While she now enjoys providing transactional business legal help to her awesome clients, she previously served as the ICWA Specialist for the National Indian Child Welfare Association.

Endnotes

[1] A note about terms: This article uses the term, “Indian,” instead of “Native American” or “American Indian/Alaska Native” because both the federal and state laws use those terms.

[2] 25 U.S.C § 1901 et. seq.

[3] Indian Child Welfare Act Proceedings; Final Rule, 81 Fed. Reg. 38,778 (June 14, 2016), 25 C.F.R § 23.101 –23.144.

[4] Guidelines for State Courts and Agencies in Indian Child Welfare Act Proceedings, 80 Fed. Reg. 10146 (Feb. 25, 2015).

[5] Oregon Indian Child Welfare Act (ORICWA), Oregon Laws 2020, ch. 14. (At the time this article was written, ORICWA had yet to be published in the Oregon Revised Statutes. Readers can access the text of Oregon HB 4214 at https://olis.oregonlegislature.gov/liz/2020S1/Downloads/MeasureDocument/HB4214/Enrolled).

[6] Oregon Judicial Department Juvenile Court Improvement Program & Casey Family Programs Work Group. Oregon Indian Child Welfare Act (ORICWA) 2021 Judicial Benchbook, (Jan. 2021), https://www.courts.oregon.gov/programs/jcip/Documents/OregonIndianChildWelfareActBenchbook.pdf.

[7] See e.g., Ariella Hope Stafanson, Supporting Cultural Identity for Children in Foster Care, Child Law Practice Today (Jan. – Dec. 2019), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/january—december-2019/supporting-cultural-identity-for-children-in-foster-care/.

[8] Services differ from place to place. Here I reference the Native American Youth and Family Center’s Parenting in 2 Worlds  class in Portland, OR. Practitioners are going to have to do their own research to locate culturally specific resources. I recommend to always start with the child’s tribe to see if they offer or refer families to services.

Defending the Gold Standard: American Indian Tribes Fight to Save the Indian Child Welfare Act

Janice Beller

Published February 2022

While most folks rush in and out of their local post office, indifferently dropping off or picking up mail on their way to somewhere else, Malissa Poog remembers the Blackfoot Post Office with an entirely different set of feelings.  Melissa, a member of the Shoshone-Bannock Tribe, fondly remembers often visiting the post office with her mother as a child.  While there, she would look at a series of murals painted on the walls of the building, each depicting people who looked like her, busily working on the tasks of life in peace.

The murals, painted by the artist Andrew Standing Soldier, “showed life prior to the boarding school era,” remembers Melissa, “it was a snapshot of my people that always felt tranquil.”  The older she got, however, Melissa began to recognize the great disparity that exists between the mural’s scenes and the reality for her tribe and its children.

Melissa’s discovery eventually led her to a career in Tribal Social Services.  Her work is a labor of love over the last 25 years.  Today, as the Shoshone-Bannock Tribal Social Services Manager, Melissa spends her days working with tribal families, connecting them to resources, support, and assisting adults looking to reconnect with their tribal ties.  Too often those ties were severed while tribal members were children, many times as a result of a child protective act (“CPA”) case ending in the termination of parental rights.

Making the situation even more traumatic, the termination of parental rights to an Indian child also meant, functionally, the termination of connection between the child and his or her tribe.  These connections, Melissa notes, are critical to the survival of the tribe and the preservation of its history, culture, and traditions.  “Adults coming back to the tribe struggle,” she says, “because they have lost the values unique to the tribe.  They feel like they do not fit in either world – the white or the Indian – and it is difficult to reconnect.”

ICWA at the Crossroads

It also helps to explain why the current potential for a major change in Indian Child welfare policy concerns Melissa so greatly.  Currently, the Supreme Court of the United States is poised to consider whether to grant certiorari to a block of cases challenging the constitutionality of the Indian Child Welfare Act (“ICWA”).

The challenge is real and the potential impact to tribes fighting to keep their children is substantial.  “ICWA helps us fight to preserve the connection between a child and his or her tribe.”  Melissa notes, “[t]ribal children placed in the child welfare system without ICWA stand to lose so much more; their community, their tribe, their culture.  We lost so many children before….”  Melissa’s voice trails off and for a moment, it is easy to feel the hurt, anger, and fear the current situation creates for her.  “ICWA is in danger and not everyone knows it yet.  Some tribes are too trusting and take for granted the value ICWA provides.”

Understanding the weight of the current court battle first requires an understanding of the fight undertaken by America’s Indian tribes to secure the rights established in ICWA, over 40 years ago.

Responding to the Indian Boarding School Era

Congress passed the Indian Child Welfare Act in 1978, in response to significant concerns that Native children were still being disproportionately removed from their homes and tribes, when compared to non-Native children.[1]  Even after the closure of the Indian boarding schools, it was alleged that government child welfare entities would systematically remove Native children from their homes, doing so without first establishing any legitimate basis for removal.[2]

This policy silently replicated the atrocities experienced by tribes in the earlier days of Indian boarding schools, where it is estimated that 83% of Native children were removed indiscriminately from their tribes and placed in state-supported facilities.[3]

Parenting in the Boarding School Era “Indian agents on the reservations normally resorted to withholding rations or sending in agency police to enforce the [boarding] school policy. In some cases, police were sent onto the reservations to seize children from their parents, whether willing or not. The police would continue to take children until the school was filled, so sometimes orphans were offered up or families would negotiate a family quota. Indian parents also banded together to withdraw their children en masse, encouraging runaways and undermining the schools’ influence during summer and school breaks. Court rulings increased pressure to keep Indian children in Boarding schools. It was not until 1978 with the passing of the Indian Child Welfare Act that Native American parents gained the legal right to deny their children’s placement in off-reservation schools.”  

At the peak of the boarding school era, 367 schools existed in the U.S.[4]  In those facilities, children were forced to wear non-native clothing, could not speak their native languages, or participate in native traditions or ceremonies.[5]  Schools isolated the students from their families and tribes with the expressed purpose to “kill the Indian, save the man.”[6]  Often, children taken from their families never returned home, succumbing to rampant abuse and unchecked disease.[7]

In this context, the road to becoming law was not easy for ICWA.  Congress held multiple hearings and investigated the situation for over four years before enacting the legislation.[8]  In the hundreds of pages of documents creating the legislative record for ICWA, investigators concluded that in the 1970’s, “up to 35% of American Indian children lived in foster care, adoptive care, or institutions.”[9]  Instead of a blanket policy of ‘forced assimilation’ with the boarding schools, governmental agencies utilized state-run health and welfare agencies to remove children, predicated on ill-informed judgments about the conditions present on tribal reservations.[10]

One out of every three Indian children were still being taken, involuntarily, from their homes and tribes.  Instead of death from abuse and disease, the ties between child and tribe were permanently severed by state-sanctioned foster care placement and adoption.    

Child Welfare’s Gold Standard 

When President Jimmy Carter signed ICWA into law on November 8, 1978, it required a substantial shift in how state agencies approached child welfare cases involving Indian children.  Once established that a child of concern is or may be an Indian child, CPA courts must confirm that the responsible child welfare agency has notified the child’s potential tribe of the open child welfare case.[11]

For any child custody case involving an Indian child domiciled on tribal land, the tribe has exclusive jurisdiction over the child and may remove the case to tribal court.[12]  For those cases that originate from tribal lands, the tribe has concurrent jurisdiction in the case.[13]

What Does ICWA Do?
ICWA governs State child-custody proceedings in multiple ways, including: (1) by recognizing Tribal jurisdiction over decisions for their Indian children; (2) by establishing minimum Federal standards for the removal of Indian children from their families; (3) by establishing preferences for placement of Indian children with extended family or other Tribal families; and (4) by instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.  *Box 2*

One of the primary improvements mandated within ICWA is the requirement that the state utilize “active efforts” to reunify a child identified as an Indian child with his or her biological parents.[14] For non-Indian children, the standard is “reasonable efforts,” which is generally considered a slightly lesser level.

A state court may terminate an Indian child’s biological parent’s rights only once the state has made its case beyond a reasonable doubt, as compared to the clear and convincing standard used in non-Indian child proceedings.[15]  Additionally, the State must offer the testimony of a Qualified Indian Expert, who must conclude that a parent’s or Indian custodian’s continued custody of the Indian child will result in serious emotional or physical damage.[16]

Another important difference are the rules around foster placement of an Indian child.  Long before the Families First Act firmly established a requirement for kinship placement, ICWA mandated that Indian children must, wherever possible, be placed with extended family or other tribal foster families.[17]  Why is this important?  Melissa has seen the impacts of placing Indian children in non-Indian foster or kinship placements.  “Even if foster parents want to do right by an Indian child, there is no guarantee the community or extended family will,” she says, “these children are subjected to fear and hatred, judged in the community, and lack a sense of acceptance.”

Together, these protections, in addition to many others built into ICWA, create what has been called the ‘gold standard’ of child welfare; a structure of checks, balances, resources, and heightened judicial oversight that gives Indian families and tribes every opportunity to prevent the loss of children from tribal communities.[18]  This standard and its disproportionately high use of limited resources, however, has not gone without judicial challenge.

Legal Challenges to ICWA

Unsurprisingly since 1978, multiple groups have challenged ICWA.  Over time, and with the changing of the U.S. Supreme Court’s composition, ICWA’s scope has been modified.  In Mississippi Band of Choctaw Indians v. Holyfield, twin children born to members of the Mississippi Band of the Choctaw Indian tribe were born off the reservation and adopted (with the parents’ consent) by non-Indian parents, the Holyfields.[19]

The mother attempted to locate an adoptive family or relative on the reservation to take the children, but was unsuccessful in doing so.[20]  She moved off the reservation solely for the purpose of giving birth and when the tribe found out two months after the State finalized the adoption, they filed suit.[21]  The tribe claimed it had exclusive jurisdiction and sought to reverse the previous adoption order.[22] 

Both the trial court and Mississippi Supreme Court upheld the trial court’s original decision that because the children were not born, nor resided, on the reservation, ICWA did not apply.[23] 

The Supreme Court of the United States, however, reversed the lower court decisions, holding that ICWA does apply to the adoption of Indian children, provided the child(ren) or biological parents resided on the reservation.[24]

In Justice Brennan’s majority opinion, he noted that “[t]hese congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA’s jurisdictional scheme is inconsistent with what Congress intended.  The appellees in this case argue strenuously that the twins’ mother went to great lengths to give birth off the reservation so that her children could be adopted by the Holyfields.  But that was precisely part of Congress’ concern.  Permitting individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish.”[25]

Chipping Away at ICWA’s Scope

The tide began turning against ICWA in the 2013 Adoptive Couple v. Baby Girl decision, where the Supreme Court held that several sections of ICWA apply only to biological fathers with custodial rights to an Indian child.[26] The case focused on a baby girl whose father was a registered member of the Cherokee Nation, but who had no formalized custody of the child because he and the child’s mother terminated their relationship.[27]  While he privately told the mother he was not interested in parenting the child, he reacted differently when he realized his child was set to be privately adopted.[28]  He objected, claiming his rights under ICWA, and the state court awarded him custody of the little girl.[29]

The identified adoptive parents appealed to the Supreme Court of the United States, who reversed the lower court decisions.[30]  The Court held that for an Indian child without a formalized relationship to his or her father, ICWA does not apply.[31]  Additionally, the Court held that ICWA’s requirements for active efforts to preserve the Native American family do not apply if no other party (presumably a tribal party) steps forward to seek adoption of an Indian child.[32]

The decision rocked the child welfare world, not only because it left the future of ICWA uncertain, but because it led to a worst-case scenario for the young girl; the case began in 2009, the biological father was awarded custody in 2011, and custody of the child was returned to the adoptive couple in late 2013.  For the tribe, it was a reversal of fortune that foreshadowed the legal challenges happening now.

Zeroing in on the New Fight

Just five years after the final decision in the Baby Girl case, multiple cases directly challenging the constitutionality of key ICWA provisions began making their way through the federal courts.  The cases surviving an initial appellate review all come from the Fifth Circuit Court of Appeals.  While a few cases arrived at Courts of Appeal in the Second, Eighth, and Ninth Circuits, none of the cases were decided on substantive legal grounds tied to ICWA.

In fact, of the three cases taken up by the Ninth Circuit Court of Appeals since Baby Girl, all of them were summarily addressed without the bench commenting on ICWA.  The Eighth Circuit examined a basic jurisdictional issue related to ICWA and quickly upheld the tribal court’s exclusive and primary jurisdiction for incidents occurring on tribal land with Indian children.[33]  The battle for ICWA, it seems, comes from deep in the heart (and tribes) of Texas.

The Anti-Commandeering Question
One of the central issues in the potential Supreme Court cases questions whether the federal government, through ICWA and the judicial system, has impermissibly allocated state resources without the authorization of the state involved.  The basic “anti-commandeering” doctrine notes: “[t]he Constitution confers on Congress not plenary legislative power but only certain enumerated powers, and conspicuously absent from those is the power to issue direct orders to the governments of the States.”   The challenge?  This directive conflicts with the Supremacy Clause, which requires state courts to follow validly enacted federal laws – like ICWA.  “Typically, if a federal law is enforceable in state courts or preempts state law, no “commandeering” arises from the fact that state courts must apply the federal enactment—rather, this is what the Supremacy Clause demands.”  Since the enforcement of ICWA occurs directly through the judicial intervention of a child welfare case, the question before the Fifth Circuit was whether federal law commandeers state courts.  The judges acknowledged, prior to their analysis, that an overlap exists.  **Box 3**

Awaiting Certiorari: Brackeen v. Haaland

Over the last two years, four cases in the Fifth Circuit have put ICWA’s fundamental provisions front and center of judicial review.  These cases, collectively identified under the Brackeen v. Haaland umbrella, challenge significant portions of ICWA, and the Fifth Circuit, en banc, split on the issues presented.[34] 

The cases have garnered substantial attention by multiple states, numerous tribes, and additional special interest groups, all of whom are trying to advocate for their own special mix of affirmations and reversals.

Why?  The problems created by the Fifth Circuit are stated succinctly in the Petition for Certiorari Review submitted in Brackeen v. Haaland,

“[a]cross six splintered opinions, eight judges concluded that all three of ICWA’s placement preferences were constitutional, six judges concluded that all three violated equal protection, and two judges concluded that at least the third placement preference was unconstitutional, resulting in an affirmance of the district court’s invalidation of that provision. A different majority of the en banc court further held that certain provisions of ICWA violated the anti-commandeering doctrine, and an equally divided court affirmed the district court’s holding that the preferences unconstitutionally commandeered state agencies. Yet another majority of the Fifth Circuit, however, upheld the placement preferences as applied to state courts based on the conclusion that the anti-commandeering doctrine provides no protections to state judiciaries.”[35]

While the Supreme Court will not make its decision on the petitions until sometime in January, most leading court experts agree that based on the split within the circuit, there is a high degree of likelihood the Court will take up these cases.  Given the differences in the composition of the Court from 2013 to now, the end result is unclear and troubling to tribal advocates like Melissa.

Why ICWA Matters

When asked why ICWA matters to her tribe, Melissa’s answer is quick and definite, informed by her twenty plus years of experience.  “Indian children are the children of the tribe.”  She pauses and then adds, “[w]e must get states to recognize that the tribe is a child’s family.”  She notes as an example, “[w]hen the boarding school children came home and had children of their own, they were unable to raise them.  Those children, as adults, came home traumatized and with problems.  It was the Grandparents in the tribe that took over parenting responsibilities for their grandchildren, and in this way, began to heal the damage caused by the boarding schools,” said Melissa.

Without that transfer of history, culture, and language to the next generation of tribal members, a crisis looms for America’s smaller tribes as their elders succumb to time.  The Kootenai Tribe of northwestern Montana and northern Idaho exemplifies this dire problem.

The Kootenai are a small tribe with a “language isolate:” a language which stands alone, unrelated to any other tribal tongue.[36] 

In the 1970’s, linguists and sociologists began recording the elders telling the stories of the tribe, but failed to appreciate the loss of new language speakers who could understand the stories.[37] 

The fix is not an easy one.  For a tribal member to gain fluency in the Kootenai language with the proper context, tone, and syntax, it requires a lifetime of exposure, instead of an intensive workshop or written primer.

Today, this is a pervasive problem among the Indian tribes of the United States.  “The U.S. Census Bureau reported in 2011 that the 169 Native North American languages it tracks have only about 375,000 total speakers; the 10 most prominent languages account for about three-quarters of them.”[38] 

The United Nations identified 140 languages within the U.S. that are “dying,” and most belong to Indian tribes.[39] 

Now, instead of battling a concerted effort to “remove the Indian from the man,” tribes face losing culture and heritage due the loss of its treasured elders, who die without passing on the knowledge they have guarded for generations.

“Today, this is a pervasive problem among the Indian tribes of the United States.”

The Role of Practitioners

While an urgent situation exists every time the state removes a child from his or her home, when an Indian child is removed from his or her family, a companion risk of disconnection from the tribe’s history, culture, and language exists.  When removal of a child cannot be prevented, it is critical that child protection practitioners support the effort to identify Indian children quickly. 

This process could require something as simple as establishing parental ancestry, or something as technical as confirming a child’s paternity.  Confirming a child’s ICWA status gives the tribe a chance to engage as early as possible and opens up additional resources to assist the child and parents with reunification.

“ICWA gives us the resources and authority to continue to look after our tribe’s children,” Melissa says.  “The people in our tribe must be committed to making it work, but,” she notes, “we are resilient.”


Janice Beller served as a child protection GAL and spent seven years working on the Child Protection team at the Idaho Supreme Court.  After serving as a Deputy Criminal Prosecutor for the Cities of Boise and Meridian for five years, she currently handles a child protection calendar in Canyon County.  She remains hopeful that someday, her guitar-playing teenager will expand his repertoire of guitar solos and playing prowess beyond his beloved Metallica.

The author wishes to express her thanks to Debra Alsaker-Burke, for her critical feedback and insightful suggestions on this topic as the article took shape. 

The Brackeen v. Haaland Cases
Haaland v. Brackeen  (Petition 21-376)
Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.
Cherokee Nation v. Brackeen  (Petition 21-377)
Issues: (1) Whether the en banc U.S. Court of Appeals for the Fifth Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc Fifth Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc Fifth Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari.
Texas v. Haaland  (Petition 21-378)
Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.
Brackeen v. Haaland  (Petition 21-380)
Issues: (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.                                                                                                                                       *Box 4* 

Endnotes

[1] Indian Child Welfare Act (ICWA), Child Welfare Information Gateway, https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/ (last visited Dec. 7, 2021).

[2] Id.

[3] The National Native American Boarding School Healing Coalition, A Primer on American Indian and Alaska Native Boarding Schools in the U.S., 1 Healing Voices, June 2020, at 1. https://secureservercdn.net/198.71.233.187/ee8.a33.myftpupload.com/wp-content/uploads/2021/09/NABS-Newsletter-2020-7-1-spreads.pdf.

[4] Id at 9.

[5] Id at 2.

[6] History and Culture: Boarding Schools, Northern Plains Reservation Aid,  http://www.nativepartnership.org/site/PageServer?pagename=airc_hist_boardingschools (last visited Dec. 7, 2021).

[7] The National Native American Boarding School Healing Coalition, note 3 at 3.

[8] Lynelle Hartway & Adrea Korthase, The Indian Child Welfare Act and Active Efforts: Past and Present 2 (2020).

[9] Id.

[10]  Boarding School Blues: Revisiting American Indian Educational Experiences 205 (Clifford E. Trafzer et al. eds., 2006).

[11] ICWA Notice, Bureau of Indian Affairs, https://www.bia.gov/bia/ois/dhs/icwa/icwa-notice (last visited Dec. 7, 2021).

[12] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 2. Jurisdiction, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/jurisdiction.html (last visited Dec. 7, 2021).

[13] Id.

[14] Hartway & Korthase, note 8 at 3. 

[15] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 13. Termination of parental rights, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/termination.html (last visited Dec. 7, 2021).

[16] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 14. Expert Witnesses, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/expert.html (last visited Dec. 7, 2021).

[17] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 11. Foster care placement & removal, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/foster.html (last visited Dec. 7, 2021).

[18] Hartway & Korthase, note 9 at 2.

[19] Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37–38 (1989).

[20] Id. at 38–39.

[21] Id.

[22] Id.

[23] Id. at 53.

[24] Id.

[25]  Id. at 51–52.

[26] Adoptive Couple v. Baby Girl, 570 U.S. 637, 643 (2013).

[27] Id.

[28] Id. at 644.

[29] Id. at 645.

[30] Id. at 641–42.

[31] Id.

[32] Id.

[33] Watso v. Lourey, 929 F.3d 1024, 1027 (8th Cir. 2019), cert. denied sub nom. Watso v. Harpstead, 140 S. Ct. 1265 (2020).

[34]  Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog, Sept. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.

[35]Petition for Writ of Certiorari at 2-3, Brackeen v. Haaland, No. 21-380 (filed Sept. 8, 2021).

[36] Kevin Dupzyk, NOT TRANSLATABLE: On the Flathead reservation, recording the Kootenai worldview in its own words, Native News, http://nativenews.jour.umt.edu/2014/?page_id=18 (last visited Dec. 7, 2021).

[37] Id.

[38] Id.

[39] Id.

Sidebar Boxes:

Box 1:  History and Culture: Boarding Schools, Northern Plains Reservation Aid,  http://www.nativepartnership.org/site/PageServer?pagename=airc_hist_boardingschools (last visited Dec. 7, 2021).

Box 2:   Frequently Asked Questions, Bureau of Indian Affairs, Final Rule: Indian Child Welfare Act (ICWA) Proceedings, U.S. Dep’t of the Interior Indian Affairs 3 (June 17, 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/raca/pdf/idc1-034295.pdf.

Box 3:  Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog, Sept. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.

Box 4:  Brackeen v. Haaland, 994 F.3d 249, 402–03 (5th Cir. 2021).

Change is Coming: Is it Time to Let People Other Than Lawyers Deliver Legal Services in Idaho?

Kurt D. Holzer

Published February 2022

Even with organized and sustained efforts at expanding access to legal services, many Idahoans cannot get the legal help they need. As of 2019, half of Idaho’s 44 counties had 10 or fewer attorneys, three had none, and five had only lawyers employed by government.

Limited access to legal services is a problem that impacts people from most walks of life. A recent national study concluded that nearly 80% of civil litigants facing issues related to probate, divorce, child custody, landlord-tenant, debt collection, and the like have no representation in court proceedings.  This lack of access comes with serious social, legal, economic, and political consequences. It is no surprise that the top 25% or so of people on the economic ladder, and corporate interests, can access legal assistance essentially without limit.  The 35% near the bottom of that ladder have some ability to seek out assistance through a variety of pro bono, Legal Aid, public defender, or other resources. That leaves about 40% of the population in the middle who frequently cannot afford or otherwise obtain the legal assistance when faced with a legal issue. 

Lack of access to legal services translates directly to a lack of access to justice.  While there is no universally accepted definition of access to justice, my personal working definition provides:

“Access to justice exists when a person with a legal issue can, within their financial means, obtain that level of legal assistance needed to achieve a just outcome on the merits accompanied by the sense they were treated fairly in the process.”

We as a profession have some responsibility in having contributed to the problem of incomplete access by our role in developing the system’s well-intentioned regulatory structure. Regardless, our profession certainly has a leading role in addressing the problem. 

Idaho is far from alone in seeing access issues impact its citizens. Across the country, pro bono and “low bono” efforts are nowhere near sufficient in and of themselves at providing access.  Many states are thinking about how to serve populations that cannot currently obtain affordable help with legal issues.  Regulatory barriers to delivering legal services are under scrutiny by academicians, regulators, and courts. 

Legal regulatory reform may not sound sexy, but it is a hot topic.

The Idaho Supreme Court is starting to contemplate what more Idaho should do to provide Idahoans access to the legal assistance they need.  This past summer, Chief Justice Richard Bevan, Bar Counsel Brad Andrews, Idaho State Bar Executive Director Diane Minnich, and I attended a program sponsored by the Conference of Chief Justices and the National Center for State Courts.  The conference explored legal services delivery reform efforts underway across the country.

Almost all of us in practice have had an experienced paralegal or legal secretary with a depth of knowledge in an area or areas that no newly minted lawyer could ever match.  Like many attorneys, lots of what I know about the practice of law was taught me by the paralegals I have been lucky to work with in my career.  (Thanks Joanne, Katy, and others.)  Cultivating and utilizing that important and valuable reservoir of knowledge and experience is starting to be recognized as one of the potential solutions to access issues in various states. 

For example, in 2015, the Utah Supreme Court approved a licensed Legal Paraprofessional program. Utah LPPs can provide legal advice and assistance to clients in three areas of law with a traditionally high number of self-represented litigants: debt collection, eviction cases, and certain family law matters. While not authorized to represent clients in court, Utah LPPs can complete and file court documents, advise clients how a court order affects their rights and obligations, and represent clients in settlement negotiations.

Similarly, in 2020, Arizona approved a new category of licensee called legal paraprofessionals (LPs). In limited areas, including some family law, Arizona LPs can draft, sign, and file legal documents; provide advice, opinions, or recommendations; appear before a court; and negotiate on behalf of a client.  

Utah LPPs and Arizona LPs are to the legal profession what nurse practitioners are in the medical world:  people qualified by education, training, and experience to handle less-complex, more routine, work for less expense than more extensively trained and broadly qualified persons.

This past September, the California Paraprofessional Program Working Group submitted a final report recommending the widest scope of services of any state including court representation in some collateral criminal matters; consumer debt; employment and income maintenance; family, children, and custody; and housing. The recommendations remain under consideration by the California State Bar

This regulatory change is happening in far more than just these nearby states.  Minnesota has an ongoing legal paraprofessional pilot project that allows participants to provide legal services in landlord–tenant disputes and family law cases. Other states including Illinois, Connecticut, Florida, Michigan, New Mexico, New York, North Carolina, Oregon, Virginia, and Washington are actively studying or have adopted regulations of the practice of law designed to enhance the access to legal assistance.

There are more revolutionary efforts at expanding and regulating the delivery of legal services as well. In 2020, Utah launched its Office of Legal Services Innovation to oversee what is referred to as Utah’s legal “regulatory sandbox.”  That program allows entities to apply to use new models for legal businesses and offer new kinds of legal services. For example, it allows companies using technology platforms or service providers without law licenses to practice law while be very closely scrutinized by the regulators. The regulatory sandbox is the most aggressive current regulatory reform. It requires a huge commitment of State personnel, time, and resources.  It remains in an experimental, evaluative, stage.  

This is truly a moment, and legal regulatory reform an issue, where Justice Louis Brandeis’ vision of states as laboratories of democracy is in full flower.

The Idaho Supreme Court has the power and authority to make determinations related to the scope of licensure and the practice of law in our state. Any changes that come will be via processes the Court decides.  The Idaho State Bar whose regulatory authority over licensed lawyers is delegated by the Court is one of many stakeholders with deep interest in any potential changes.  For example, the scope of practice for any paraprofessional licensing Idaho considers will be intimately tied to availability and cost of relevant education and training.  The Court has made clear it will consider input from all the appropriate stakeholders as it evaluates all aspects of these issues.  Whether this happens via a task force or through some of the Court’s standing committees, we can all expect a thoughtful assessment of what, if any, changes to its practice of law regulations Idaho should adopt. 

In the end, one of the enduring measures of the success of our democracy is whether we can make access to justice real.  As the late Chief Justice Earl Warren said, “The success of any legal system is measured by its fidelity to the universal ideal of justice.” 

Here’s to Idaho taking an intelligent, thoughtful new step in fulfilling the goal of achieving justice for all.

Special Note of Appreciation

There is another change on the near horizon for members of the Idaho State Bar (ISB).  As you likely know, Bar Counsel Brad Andrews is retiring this year.  Brad has served the ISB with distinction. He has made the Idaho Office of Bar Counsel the envy of many of his counterparts across the country. Brad has helped ISB Commissioners navigate many issues facing the Bar with careful analysis, insight, and aplomb.  He has been a thoughtful sounding board for hundreds of practitioners facing ethical quandaries in their practice.  His even-handed and reasonable approach to service, leadership, and management made our bar better.  Thank you, Brad.

Taylor-Benjamin

Kurt D. Holzer is currently serving as President of the Idaho State Bar. He is looking forward to gathering with lawyers from across Idaho to welcome you all in person to the first ever Idaho State Bar Convention held in Twin Falls this July.

ABA Mid Year Report

R. Jonathan Shirts

Published May 2022

The American Bar Association’s Mid-Year Meeting was held from February 9th through the 14th. What was supposed to be a renewed in-person gathering hosted by the wet and wonderful city of Seattle was once again moved to the virtual realm due to the cresting wave of the Omicron variant. Thankfully, that wave has passed and expectations are that the Annual Meeting in Chicago, scheduled for August 3rd through 9th, will be able to return in-person once again.

I am brand new to this role as the Idaho State Bar Delegate to the ABA’s House of Delegates, so please indulge the brief moment of self-introduction. Unlike many of you, but similar to many others, I did not begin my path as a lawyer until later in life. I had been searching for a career that would allow me to help people on an individual level, something I thought I had found early on in education, at least until I realized halfway through my student teaching that I was not a fan of the internal politicking and over-zealous parenting forced on teachers. I pivoted to higher education, but soon found myself trapped behind a wall of numbers, none of which I felt reflected my ability to engage and interact with individual students. So, after 10 years of prodding from my wife’s aunt, a retired Judge, I took the LSAT leap and was accepted at the University of Idaho, then started law school one month before my youngest son was born.

Before I started, I was encouraged to seek out and join the ABA, which I did. Then, a month into my 1L year, the opportunity presented itself to run for election as the school’s ABA Representative. I threw my name in the hat and was elected to a student body office for the first time since elementary school. Looking back now, that was probably the most impactful thing I could have done for my career. I spent three years encouraging law students to join the ABA, and was elated when the Administration elected to enroll all law students as ABA Student Members near the end of my 2L year. Among other events, we were able to host the then-President of the ABA, Linda Klein, at the Boise Campus, and later hosted the past Chair of the ABA Judicial Division, Col. Linda Murnane, at both the Boise and Moscow campuses.

I also spent two years serving as the ABA’s Law Student Liaison to the Judicial Division, a role advocating for how members of the judiciary could reach out and partner with law students more effectively. That experience allowed me, a lowly law student from the University of Idaho, to sit in meetings with State Supreme Court Justices, Judges from State and Federal Courts of Appeals, and jurists who would later end up on the shortlist for the Supreme Court. I was also able to serve as the Vice-Chair for Membership and the Co-Chair for the Public Outreach, Education, and Service Committee of the Judicial Division’s Lawyer’s Conference. After graduation and passing the Bar, I became involved with the State Bar, serving on the Appellate Practice Section as an At-Large Council Member. So when the opportunity presented itself to serve as the State Bar Delegate for the Idaho State Bar, I jumped at the chance, even though I knew I had big shoes to fill as Judge Oths’ replacement.

I will admit that preparing for my first meeting was a bit daunting. Luckily, my ABA experiences had given me friendships with amazing lawyers around the country who were more than willing to give me advice about what to expect and how to prepare. The pivot from an in-person to a virtual meeting just one month before was an experience, but one that showed me that one of the strengths of the ABA is its flexibility.

The House of Delegates had a full agenda of 27 Resolutions, including two that were submitted a day before the House of Delegates meeting. Those Resolutions considered topics ranging from the plight of Afghan refugees to the presence of children in dependency proceedings. Many of the Resolutions were uncontroversial, including those encouraging Bar Examiners to provide rooms for lactating mothers during the Bar Exam, recommendations regarding oversight of nursing homes amid many guardianship scandals across the country, and asking for support for foster children aging out of the system to help prevent them from being homeless.

Those Resolutions considered topics ranging from the plight of Afghan refugees to the presence of children in dependency proceedings.

The House urged the current Administration to overhaul the immigration and asylum systems to promote fairness and transparency. The House also debated support for guidelines for both landlords and tenants in the current eviction crisis, eliminating bias in pre-trial risk-assessment tools, and methods of calculating the decennial census. Changes to law school curriculums were passed which will require law schools to have loan counseling and classes on bias and cross-cultural competency, along with additional support for students related to mental health and substance abuse disorders.

Among the more controversial Resolutions, however, were those submitted the weekend before the House of Delegates meeting, both involving voting rights. The first of the voting rights Resolutions asked whether the ABA should take an official position on voting rights legislation across the country that many are worried will lead to discrimination at the polls. In an earlier address to the House of Delegates, the ABA President, Reginald Turner, encouraged all members of the ABA to “oppose any barriers to fair and open elections and any subversion of the voting process.” Some members of the House felt the Resolution was submitted too late for adequate consideration, but those in favor of the Resolution emphasized that “time is of the essence” because Legislatures across the United States were debating these bills at that moment.

After that spirited debate, the House voted to support the ABA’s official position as one encouraging state legislators to oppose legislation that would introduce barriers to fair and open elections, and for allowing elections to remain nonpartisan and independent. The second voting rights Resolution was filed in response bi-partisan legislation being considered regarding amendments to the 1887 Electoral Count Act as a result of the rally-turned-mob that attacked the US Capitol on January 6th, 2021 during the count of the Electoral College votes. Much of the opposition to this Resolution was also due to the lateness of its filing, not necessarily the Resolution itself, and the House passed this Resolution as well.

For a first-time Delegate, I was surprised, but encouraged, by both the diversity of the Resolutions’ topics, and the passionate debates on both sides of many of them. I didn’t know what to expect or what difference my lone voice could make, but I walked away from the meeting encouraged by what I saw and participated in. Over the next few months, the House of Delegates will be preparing for the Annual Meeting to be held in Chicago August 3rd through 9th. The incoming President of the ABA, the first Native American to hold this position, wants to encourage attorneys in non-metro areas to consider how the ABA can better support them.

The Young Lawyers Division will be submitting a Resolution encouraging the judiciary to allow more than one attorney to argue on a motion which would allow younger attorneys to gain invaluable experience in court. And a Resolution that was postponed on changes to the Lawyer Assistance Program Rules and the Model Rules of Professional Conduct allowing paralegals or other non-lawyers to give legal advice will be resubmitted. If you feel that these or any other ideas should, or should not be considered, contact your District’s Bar Commissioner or any of the other Idaho members of the House of Delegates: myself (r.jonathan.shirts@gmail.com); Jennifer M. Jensen, Idaho State Delegate (JMJensen@hollandhart.com); Anne Henderson, Idaho Young Lawyers Delegate (aeh@dukeevett.com); or Hon. Michael Oths, ABA Board of Governors (tcothsmj@adacounty.id.gov).

R. Jonathan Shirts graduated from the University of Idaho College of Law in 2018 and is currently the Staff Attorney for the Hon. Randy Grove of the Third District. He has also worked as the Staff Attorney for the Hon. Nancy Baskin and Hon. George Southworth. He enjoys good books and spending time in the outdoors with his wife, daughter, and two sons.

Returning to Normal?

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Gary L Cooper

Commissioner

Sixth and Seventh Districts

It excites me to read that we can look forward to getting back to normal.  It has been two long years since the COVID-19 pandemic changed our personal and professional lives.  Many people have been sickened and hospitalized; more than 900,000 people have died in the United States since the start of the pandemic in early 2020.  These are tragedies that none of us want to see repeated.  We weathered the Alpha variant, the Delta variant and, when we thought we had put COVID in our rearview mirror late last year, we were forced to shut down again by the Omicron variant.  Thankfully, Omicron cases rose suddenly and subsided nearly as dramatically. 

I am beginning to feel confident that we can finally get back to normal.  However, I am writing this column in March and it will not be published until May.  Of concern to me is that I just read that the BA.2 Omicron variant has been detected in the United States and it is more transmissible than previous variants.  I hope that I am not being too optimistic by allowing myself to think that we are going to be able to return to normal before we meet in Twin Falls, in person, for the Idaho State Bar Annual Meeting in July. 

However, what we remember as “normal” will not be the “new normal” when we finally transition out of COVID and get back to normal.  Our behavior was changed for two years and we will not go back to where we were in early 2020.  We learned involuntarily that “flexible” works in the workplace.  We do not have to be in the office to be successful lawyers.  Some of us want to be in an office because that is where we learned to be lawyers, but being in the office does not have to be the new normal for everybody.  We know now that we do not have to do everything in person.  We have learned that remote hearings, depositions, and mediations can be quite successful.  Use of remote technology will not disappear when the pandemic is behind us, nor should it. 

I am not an advocate for using technology to replace in-person lawyering to the extent we were forced to do so during the dark months of the pandemic.  There are just over 5,000 active lawyers in Idaho which means that in the area of law you practice you are highly likely to know most, if not all, the Idaho lawyers practicing in your area of expertise.  It is also very likely that you will work with those lawyers in your area of expertise multiple times during your career.  One of the things that makes it enjoyable to practice law in Idaho is the collegiality that we enjoy with each other. 

The close professional relationships we enjoy with other Idaho lawyers require personal contact.  Face-to-face meetings, hearings, negotiations, depositions, mediations, and other events are critical to maintain the level of professionalism that we all desire and expect.  So, my hope is that we do not let the “new normal” sacrifice in-person lawyering just because we learned we could use technology during the pandemic. 

As we return to normal, we should double down on finding ways to use technology to serve the thousands of Idaho citizens who are not able to afford lawyers.  If you read about judicial reform and access to justice initiatives in Idaho, and elsewhere, you may be shocked about the number of court filings in our courts where some of the parties are unrepresented by lawyers.  Idahoans regularly appear pro se in landlord/tenant litigation, consumer debt litigation, at protective order motion hearings, at infraction proceedings, on minor misdemeanor citations, and in child visitation/custody litigation.  I believe that these cases amount to as much as 80% or more of court filings.  The kind of litigation in which most of us are involved amounts to about 10% of the filings. 

To me such statistics are staggering.  Not because people do not use lawyers for these cases, but because the impression which significant numbers of Idahoans form about the judicial system are formed without the benefit of an advocate to help them navigate the challenges of being sued.  I am not suggesting that we figure out ways to get all pro se litigants a lawyer because that may take too long. 

What is necessary, in my opinion, is to figure out a better system of delivering justice for citizens involved in these kinds of cases and disputes so that those who are unrepresented can come to understand that the judicial system is fair and accessible for everyone.  While politicians and lawyers, in general, have been judged harshly by public opinion for years, the judicial branch has, I believe, maintained a high degree of respect.  Recently, I am afraid the judicial system has not fared as well. 

You can draw your own conclusions as to why that is, but the more important point is that we lawyers need to make certain everyone, even the person with the smallest case, can access the judicial system and come away feeling that they received a fair shake.  If we do not, we risk a majority of Idahoans losing respect for the judicial branch of government.  Our fellow citizens who suffer bad experiences with the court system when they are compelled to defend themselves in the kinds of cases previously described will buy into the narrative that the judicial system is broken or only works for the wealthy.  That is not the narrative that any of us wants popularized.      

I think technology may provide ways to resolve this problem.  The judicial system adjusted quickly to using platforms, like Zoom, to conduct difficult hearings and other litigation events remotely when the pandemic forced us to do so.  I think most people know how to use the internet to shop.  Those skills are sufficient to permit our judicial system and most people to use the internet and remote platforms to resolve consumer debt, landlord/tenant, and other common judicial system issues without going to the courthouse. 

I certainly do not have the aptitude or skills to figure out how we can use technology to solve access to justice issues, but I think if we encourage it, as part of the new normal, there are those who have the skills to improve our system of delivering justice in these kinds of cases.  As we return to normal, we have a great opportunity to insist that some of our access to justice problems be improved with technology.  I believe it is vital to maintaining confidence in our judicial system.  Personally, I hope we, as a profession, do not accept what we now have as adequate.

As we get back to normal, the Idaho State Bar staff and Bar Commissioners want to make sure that we are providing the right kind of services that are helpful to our members and the communities in which we practice.  At the Annual Meeting in Twin Falls this year from July 20th – 22nd, some of the staff and commissioners will convene at least four focus groups: (1) lawyers who have practiced less than 15 years; (2) lawyers who have practiced more than 35 years; (3) women lawyers; and (4) lawyers practicing solo or in firms of less than four lawyers.  We want to hear what you think we can do better to help you in your law practices and to serve the communities in which you practice.  As we return to normal, we want to make sure the “new normal” includes the kind of assistance from your membership in the Idaho State Bar which will be helpful to you and which you can use. 

If you are interested in participating in these focus groups, please email me at julie@cooper-larsen.com and I will let you know when and where we will be meeting.  I realize these focus groups do not include all member subgroups.  Do not worry.  We will be conducting more focus groups and town hall meetings in the coming months to give everybody a chance to weigh in.  You are also welcome to email me at gary@cooper-larsen.com with any suggestions.

Gary Cooper was raised in Idaho. He received an undergraduate degree and law degree from the University of Idaho. He has practiced in Pocatello since 1975. For the last 23 years he has practiced with his good friends Reed Larsen and Ron Kerl. He and his wife, Jane, have three children and five grandchildren.

Reflections on Well Being

Sustainability innovation and creative ecology friendly tech development concept. Alternative energy and efficient resource usage strategy for future well being and financial business stability.

Kristin Bjorkman Dunn

Commissioner

Fourth District

Published March/April 2022

As I prepared to write this message, I looked back at what I had previously written for the Commissioner’s Message.  How awkward if I were to write on a topic I had previously addressed!  What came of this exercise turned out to be a good laugh at the following lines from my message in the January 2021 issue of The Advocate: “At times it felt like it would never end.  The year that seemed to span a decade.  Yet here we are at the start of 2021.  Is that a worldwide collective sigh of relief I hear?” 

As 2021 dawned, I did not expect that any sigh of relief on my part would be short lived. Indeed, I had higher expectations of 2021 than what turned out to be a year that felt like a scene from the movie Groundhog Day.  Meetings and hearings via Zoom were still common if not the norm, masks continued to line the shelves at stores, and COVID protocols were still part of our everyday vernacular. Certainly, the pandemic was never welcome, but had it been, the welcome would have worn off long ago. 

My look back also got me thinking about the myriad effects the pandemic has left in its wake, one of which is the impact it has had on morale and well-being.  As reflected in the results of the 2021 Idaho State Bar Membership Survey, COVID-19 has been a menace to attorney well-being.  One of the questions posed by the survey was, “In what ways has the COVID-19 pandemic negatively affected your practice?” and more than 40% of respondents selected “personal well-being.”  In fact, “personal well-being” received more votes than any other option.  A Bloomberg Law Survey reported in the June 2021 edition of the ABA Journal also contained disheartening statistics.  The survey disclosed that nearly half of lawyers acknowledged that their well-being declined over the first quarter of 2021. 

But this begs the question: just what is “well-being”?  In 2017, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, published by the National Task Force on Lawyer Well-Being, pointed out that well-being is not defined solely as an absence of dysfunction; nor is it limited to feeling “happy.” Full well-being is multi-dimensional and requires things like connection, belonging, continual growth, and aligning our lives with our values.

No matter what the pandemic has in store for us going forward, there are a number of practical steps lawyers can take to address well-being concerns.  Following is a brief excerpt from the steps identified in a report from the American Bar Association’s National Task Force on Lawyer Well Being.

Assess Well-Being.  Offices should collect and measure information about well-being stressors as well as lawyer and staff beliefs about well-being and organizational support for improving well-being to ascertain whether lawyers and staff perceive that their employer values and supports their well-being. 

Evaluate current policies and practices relating to well-being.  Make adjustments as necessary.  Seek input from all lawyers and staff in a safe and confidential manner.  Establish confidential reporting procedures for lawyers and staff to convey concerns.

Monitor for signs of poor self-care and work addiction.  Avoid rewarding extreme behaviors that can ultimately be harmful to one’s health.  Encourage lawyers to make time to care for themselves and attend to other personal obligations.  Physical activity can aid health and cognitive functioning.

Actively Combat Social Isolation.  Socializing helps individuals cope with stress and prevent negative consequences like burnout.    It counters feelings of isolation and disconnectedness.   

Educate.  Teach lawyers and staff about the benefits of well-being practices such as meditation and yoga.  Discuss the psychological challenges of the job.  Take active steps to reduce stigma surrounding mental health challenges. 

In addition to these steps, the Idaho State Bar offers resources.  In February 2020, the Board of Commissioners of the Idaho State Bar formed The Attorney Well-Being Task Force.  The task force brings various representatives from sections, committees, and practice groups together to investigate obstacles to well-being in the profession and identify resources to help attorneys, judges, law students, and related staff members not only survive but thrive in their professional and personal lives.   You can access more information about the Idaho State Bar Attorney Well-Being Resources & Task Force online at https://isb.idaho.gov/member-services/programs-resources/attorney-well-being-resources/.  The Idaho Lawyer Assistance Program is also available.  This program offers a 24 hour hotline (866) 460-9014 and has an online presence at https://isb.idaho.gov/member-services/programs-resources/lap/.

This year’s Idaho State Bar Annual Meeting presents an opportunity for all of you to combat social isolation by attending July 20th through 22nd.  For the first time ever, the annual meeting will be held in Twin Falls, Idaho.  The venue overlooks the stunning Snake River Canyon.  It is a terrific opportunity to mingle with attorneys from around the state and grow your social connections.  If financial or professional circumstances are an issue, there are a limited number of scholarships available for attorneys.  Scholarships include full registration, tickets to the social events, and per diem up to $75 per day for travel and lodging. To apply for a scholarship, go to the Idaho State Bar website and complete the Annual Meeting Scholarship Request Form.  If you have questions, contact the Idaho State Bar Commissioner who represents your judicial district or the Bar’s Program and Legal Education Director, Teresa Baker.  I hope to see you in Twin Falls!

Growing up, Kristin Bjorkman Dunn lived in several parts of Idaho. She called the towns of Salmon, Burley, and Moscow home. When she was finished with school, Kristin’s first job took her to Coeur d’Alene. Kristin now makes her home in Boise. In her spare time, she can be found reading on her back patio, running on the greenbelt, or camping with her family.

Build Your Client List with Referrals from the Lawyer Referral Service

Kyme Graziano

Published January 2022

Almost four thousand Idaho residents and many out of state residents, contact the Idaho State Bar (ISB) Lawyer Referral Service (LRS) each year looking for legal help. LRS attorneys provide these potential clients with access to the law and improve the public’s trust in attorneys. The LRS puts into action the ISB’s mission to promote high standards of professional conduct and to aid in the advancement of the administration of justice. The LRS provides this much needed public service by bridging the gap between the community and the experienced attorneys who are registered panel members in the LRS program.

Anyone can call the LRS or obtain a referral on our website. The LRS fields around 4,000 inquiries each year and as of November 2021 has provided 2,061 referrals to the 150 LRS attorneys. The LRS intake coordinator screens callers to address which area of law they need assistance in however, not every caller receives a referral to an LRS attorney – some receive referrals to community or governmental agencies. Callers may be directed to small claims court, the court assistance and public defender’s offices, or programs such as Idaho Legal Aid Services, Idaho Volunteer Lawyers Program, or various local legal clinics.

LRS attorneys do not handle pro bono cases through the LRS however, there is an arm of the program that launched in 2021 called the Modest Means program. The Modest Means program is designed to provide access to justice to individuals who may not qualify for assistance programs but still are unable to afford regular attorney fees. Potential clients are lightly screened and referred to attorneys in the Lawyer Referral Service that have designated they will accept Modest Means cases in particular areas of law and charge a lower hourly rate for these cases only. The Modest Means program is available to all LRS attorneys who are interested in giving back to their communities in this manner.

Most of the attorneys who participate in the LRS joined for two reasons: 1) they would like to develop new clients, and 2) they are interested in giving back to the community. The LRS could not provide this public service without the dedication of the participating attorneys.   A relatively new attorney practicing in Idaho, Edward Dindinger, has this to say about the LRS: “Having started a new law firm in 2018, the Idaho State Bar Lawyer Referral Service has been an essential business generation tool for my partner and me. It also provides an important service to those in our state who are in need of legal advice, but don’t know where to turn.”

Attorneys on the LRS panel are just like you! They are hard-working, intelligent professionals who strive to develop their practice while using their legal skills to provide consumers with access to justice.  Of the 150 panel members in 2021, many are solo practitioners or in small firms and others practice in medium to large firms. Some have been attorneys for 50 years, some for only two to three, and a few are newly admitted. All these attorneys are experienced and knowledgeable in the specific areas of law in which they register to receive referrals and have a passion for helping the people of Idaho. To participate in the LRS, attorneys submit their registration in the areas of law they wish to receive referrals. There are 136 different options under which to register. All attorneys in the LRS are in good standing with the Bar and must maintain this clear discipline record to remain on the LRS panel.

LRS attorneys provide a free initial consultation of up to a half-hour for LRS clients. Callers are told that while the initial consultation is free, all fee arrangements are determined between the attorney and the client. ISB members pay a registration fee to join the LRS. The LRS receives potential clients from the ABA, other state bar associations, local court assistance offices, governmental agencies, and community organizations. We are continually looking for ways to spread the word about the wonderful public service the LRS provides. Next time you receive an inquiry about an area of law you don’t practice, please know that the experienced LRS attorneys are well suited to serve the needs of your referral.

We invite you to join the LRS in 2022 and thank all the attorneys currently participating in the LRS panel – we couldn’t help the public without you. We are so grateful to these 150 attorneys and we would love to have you be part of the service as well. If you have questions about the LRS or would like more information about registration, please contact the ISB LRS Coordinator, Kyme Graziano at 208-334-4500 or kgraziano@isb.idaho.gov.