Judge to review motion to dismiss filed by district's attorney
The first hearing for a lawsuit that could eliminate $7.6 million of supplemental funding from Moscow School District is scheduled for June 29.
The hearing will review a motion to dismiss the lawsuit. The motion was filed May 17 by the district's Boise-based attorney, Brian Julian of Anderson, Julian and Hull. The motion argues three points against the lawsuit, which was filed May 3 by Moscow dentist Gerald Weitz.
The lawsuit claims that the district's last four supplemental levy elections should be invalid because they allegedly failed to comply with different requirements of the state's election laws. The four levies were passed by a majority of voters in 1992, 1995, 2002, and most recently on March 27.
The district's motion to dismiss contends that Weitz lacks the standing to bring his claims, that the court lacks subject matter jurisdiction, and that Weitz failed to use the type of claims where relief could be granted.
The hearing is scheduled for 10 a.m. in Magistrate Courtroom No. 2. Judge Carl B. Kerrick assigned Judge John Bradbury to preside over the case after Judge John Stegner recused himself.
Superintendent Candis Donicht said the district's attorneys notified her of the hearing by phone.
"At least we have a date," she said. "That is good news to have a date on the calendar."
Julian said he believes the issue of standing will be the focus of the hearing.
"The Idaho Supreme Court typically views standing as the first issue whenever someone is challenging a taxing, bonding, or levying issue," he said.
To have standing in these types of cases means there must be a unique or peculiar injury to the plaintiff other than being a taxpayer at-large and challenging the requirements of having to pay taxes.
"Weitz hasn't alleged any type of unique injury in his complaint," Julian said. "He is simply complaining about paying additional taxes." [DMC: That statement is factually incorrect.]
Julian said during a status conference last week that the judge indicated that all the papers in the case had been reviewed and suggested it may be more efficient to address the district's motion to dismiss rather than set it for trial.
"The judge indicated that he wanted to focus on the standing issue," Julian said. "It's unclear to me whether we're going to address the other issues at this time or not, or whether we're going to address only that issue."
More legal memorandums will be filed with the court before the June hearing. Julian expected Weitz's attorneys to file a brief in opposition, and the district plans to file another in support.
Weitz is being represented by Brian Thie, of Moscow, and Richard Hearn and Scott Smith, of the Pocatello-based firm Racine, Olson, Nye, Budge and Bailey.
Weitz could not be reached for comment, but Thie made a brief statement on the case.
"We attempted discussions and negotiations with the district prior to filing the action but they made it clear that they were not interested in discussing the matter with us," Thie said. "As a result, we filed the action in district court and that is where we will be trying the matter."
Julian said the judge probably will issue a written opinion within 30 days of the oral arguments at the hearing.
"It will be an opinion granting or denying the motion to dismiss," he said.
The opinion could wrap up the lawsuit before another pretrial and scheduling conference that is scheduled for July 23.
"If there is anything left of the case, I assume we'll still hold on to that date," Julian said.