Bizarre development puts open meetings trial on hold

In a bizarre development — and after a brief and testy courtroom exchange — the State Board of Education open meetings trial is on hold for another day.

That means it could be Thursday, or later, before an Ada County judge issues a ruling that could have major implications for the University of Idaho’s proposed University of Phoenix purchase. Attorney General Raúl Labrador has argued that the State Board violated state law when it discussed the $685 million purchase in a series of closed meetings, and he wants the court to throw out the State Board’s May 18 vote to endorse the purchase.

The civil case pitting Labrador’s team against the State Board was supposed to enter its second day Tuesday. But the scheduled 9 a.m. start time came and went, with no representative from Labrador’s office in court. Finally, at about 9:15 a.m., assistant solicitor general Sean Corkery arrived in court and asked for a one-day delay.

The reason: Gregory Woodard, the deputy attorney general and the prosecution’s lead attorney for Monday’s hearing, remains too sick to continue the case. During the first day of the trial, Woodard abruptly asked for a recess, complaining of an illness. Monday afternoon’s hearing was then cut short.

“It would severely prejudice our case to go forward with just me,” Corkery told District Judge Jason Scott, after the court came into session.

Corkery said Woodard believed he could return to court Wednesday.

Trudy Hanson Fouser, the State Board’s hired outside attorney, was openly skeptical. She noted that Josh Turner, who had been Labrador’s acting solicitor general, had been present for most depositions in the case, and was present in the courtroom for Monday’s hearings.

Turner was not in the courtroom this morning, and Corkery said Turner had a scheduling conflict. Still, Fouser said Turner or another deputy familiar with the case should have been prepared to step in.

“Four deputy attorney generals are being paid to be here,” she told Scott.

From the bench, Scott said he’d received a “strange” email request from Woodard Monday night: Woodard said he was “very ill,” but he did not directly request a recess.

And by failing to show up for the 9 a.m. hearing, Scott said, Labrador’s team requested a delay “almost through self-help.” While he did little to mask his reluctance, Scott granted the one-day delay.

Here’s a statement, in full, from Attorney General Raúl Labrador’s office: “Mr. Woodard has been the lead trial attorney on this case for months and naturally was the attorney prepared to try the case for our office. Mr. Woodard became suddenly ill during trial. After not improving, and out of respect for the health of others, Mr. Woodard emailed the court last evening to seek a continuance. We are grateful the court granted a one-day continuance to allow Mr. Woodard a chance to recover.”

That means the case will resume at 9 a.m. Wednesday, but the timetable is anything but clear. Corkery said the attorney general’s office will still need two more days to present its case. Fouser said she planned to call at least one witness of her own: Jenifer Marcus, the State Board’s deputy attorney general, who is a key figure in the board’s decisions to discuss the Phoenix purchase behind closed doors.

But Fouser said she had scheduling conflicts Thursday and Friday, suggesting her team would need a delay of its own. That could push the trial into next week.

After postponing Tuesday’s proceedings, Scott also lamented the pace of Monday’s hearing. Woodard worked his way through questioning only three State Board members, with each on the stand for roughly an hour or more. And seven months after Labrador filed his lawsuit — and after a cascade of court filings and sworn depositions — Scott made his impatience clear.

“It’s incredible that this is where we are,” he said.

Tuesday’s unexpected delay left three top education officials sitting on the sidelines, waiting for a hearing that didn’t happen. U of I President C. Scott Green, university legal counsel Kent Nelson and State Board member David Hill were seated in the front row of the courtroom Tuesday morning.

Woodard is expected to call all three as witnesses — along with State Board executive director Matt Freeman; Brady Hall, Gov. Brad Little’s attorney; and other board members.

The court case remains one of the biggest obstacles to the Phoenix deal, which U of I officials hope to close early this year. The U of I’s accreditors still need to sign off on the deal, and a U of I-affiliated nonprofit needs to secure financing for the purchase. But financing is effectively on hold because of the lawsuit.

Fouser was visibly angry after Tuesday’s hearing. She upbraided Corkery as he prepared to leave the courtroom, saying Labrador’s office had shown a lack of professionalism. Corkery only told Fouser he would pass on her comments, and he declined to speak to Idaho Education News after the hearing.

Afterward, Fouser again questioned Turner’s absence. “It just seems to me there must be some other motive.”

More reading: Click here for our special, in-depth coverage of the University of Idaho-University of Phoenix story.

Kevin Richert

Kevin Richert

Senior reporter and blogger Kevin Richert specializes in education politics and education policy. He has more than 30 years of experience in Idaho journalism. He is a frequent guest on "Idaho Reports" on Idaho Public Television and "Idaho Matters" on Boise State Public Radio. Follow Kevin on Twitter: @KevinRichert. He can be reached at [email protected]

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