Lawmakers are looking at reversing an Idaho Supreme Court decision last year on whether the winning side in administrative hearings could recover legal fees from the losing side. The proposal passed the Idaho House Feb. 12. House sponsor Rep. Grant Burgoyne, D-Boise, told a Senate panel Monday responding to the court case makes sense. “It’s a matter of elemental fairness and justice,” he said.

Several former state employees who challenged their dismissal spoke in strong support of the plan to revert back to the old law. “Had I not had the opportunity to receive that money back for my legal costs, I would currently be bankrupt,” said Tom Thompson, a retired major in the Idaho State Police who successfully won such a case in the early 1990s after he was wrongfully dismissed. He ran up $100,000 in legal fees, but ultimately won his administrative case. “It was an odyssey that I would hope no one would have to go through.”

The legislation would allow an administrative hearing office to award attorney’s fees to the winning side in a legal decision if he or she finds that the losing side pursued or defended the case without a reasonable basis in fact or law. “There must be finding that the other (losing) party proceeded frivolously,” Burgoyne said. Administrative officers had this power for the past 20 years before the Supreme Court ruled, in a case involving former elk rancher and gubernatorial candidate Rex Rammell, that only judges can award legal fees in such cases.

Burgoyne, who practices in administrative law, says only 5 percent of cases end with such a ruling. “In my estimation, this happens very rarely.” Lawmakers on the Senate Judiciary and Rules Committee asked him if the proposal would cost the state money, since administrative hearings stem from decisions by state agencies. “This bill will not have a fiscal impact, in terms of how the law used to exist,” he said.

“In some instances, this is going to serve the governmental entities,” said Brian Donesley, a Boise lawyer and former state senator. He’s represented Thompson and other clients in administrative hearings, and said the state could also win legal fees in frivolous cases. “No basis in law or fact cuts both ways … In the balance, this weighs evenly.”

The Senate panel approved sending Burgoyne’s proposal to the full Senate for a vote. The panel did the same for Burgoyne’s proposal to allow law enforcement officials to use their discretion in enforcing gambling laws. Burgoyne said the current law, which he calls archaic, would require police to make arrests if they see a betting pool for the Super Bowl or March Madness college basketball tournament. “The best thing to do is to amend the law so that when [law enforcement] use their best judgment, they aren’t violating the law,” he said. “There is not a license here to look the other way.” Burgoyne said police should have discretion in gambling laws, as they do in other areas of criminal behavior, like ticketing speeding drivers. “When you have laws like this on the books and you don’t mean them, it doesn’t breed respect for the law.”