Court Filing
CASE CLRK
BY
MAY
NO OF
CR29-22-2805 9
DIST 2023
DEPUTY CT AM10
.
LATAH: 49
Wendy J. Olson, Bar No. 7634 wendy.olson@stoel.com Cory M. Carone, Bar No. 11422 cory.carone@stoel.com
STOEL RIVES LLP
101 S. Capitol Boulevard, Suite 1900 Boise, ID 83702
Telephone: 208.389.9000
Facsimile: 208.389.9040 Attorneys for Intervenors
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH
STATE OF IDAHO,
Plaintiff, Case No. CR29-22-2805 V. Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023
BRYAN C. KOHBERGER,
Defendant.
THE ASSOCIATED PRESS; RADIO
TELEVISION DIGITAL NEWS
ASSOCIATION; SINCLAIR MEDIA OF
BOISE, LLC / KBOI-TV (BOISE); STATES
NEWSROOM DBA IDAHO CAPITAL SUN;
TEGNA INC./KREM (SPOKANE), KTVB
(BOISE) AND KING (SEATTLE);
EASTIDAHONEWS.COM; THE LEWISTON
TRIBUNE; WASHINGTON STATE
ASSOCIATION OF BROADCASTERS;
IDAHO PRESS CLUB; IDAHO EDUCATION
NEWS; KXLY-TV / 4 NEWS NOW AND
KAPP / KVEW-TV-MORGAN MURPHY
MEDIA KXLY-TV / 4 NEWS NOW; SCRIPPS
MEDIA, INC., DBA KIVI-TV, A DELAWARE
Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023-1
CORPORATION; THE SPOKESMAN-
REVIEW / COWLES COMPANY; THE NEW
YORK TIMES COMPANY; LAWNEWZ,
INC.; ABC, INC.; WP COMPANY LLC, DBA
THE WASHINGTON POST; SOCIETY OF
PROFESSIONAL JOURNALISTS; THE
MCCLATCHY COMPANY, LLC; and THE
SEATTLE TIMES,
Intervenors.
With each passing day, the Amended Nondissemnation Order dated January 18, 2023 (" Gag Order ") causes irreparable harm. At every step, Intervenors have acted quickly to vindicate their constitutional rights and to stop that irreparable harm. The Idaho Supreme Court similarly acted quickly on two motions to intervene and set an expedited briefing schedule. Respectfully, this Court's decision to hold a Scheduling Conference on May 22, 2023, instead of scheduling Intervenors ' motions for the next available hearing date and following the briefing schedule set in Idaho Rule of Civil Procedure 7 (b) (3) and Idaho Criminal Rule 45 (c), adds at least 3 weeks of additional irreparable harm while the parties wait for a hearing date and a briefing schedule. To avoid that additional irreparable harm, Intervenors request that the Court reconsider its order dated May 4, 2023 and either (1) stay enforcement of the Gag Order pending a decision on Intervenors ' Motion to Intervene and Motion to Vacate the Amended Nondissemniation Order to avoid any additional irreparable harm while the motions are briefed, or (2) set a hearing on Intervenors ' Motion to Intervene and Motion to Vacate the Amended Nondissemniation Order on the next available date on the Court's calendar to trigger the briefing schedule in Idaho Rule of Civil Procedure 7 (b) (3) and Idaho Criminal Rule 45 (c).
For over four months, the Court's Gag Order has restricted speech related to this matter, without the Court holding a hearing or receiving any evidence. The Gag Order violates the First Amendment of the United States Constitution and Article I, Section 9 of the Idaho Constitution.
Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023-2
Declaration of Wendy J. Olson in Support of Motion to Reconsider (" Olson Decl. "), Exhibit A.
Those are constitutional violations of an urgent nature. " [A] ny First Amendment infringement that occurs with each passing day is irreparable. " Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers). " Even a short-lived ' gag ' order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect. " Cap. Cities Media, Inc. v. Toole, 463
U.S. 1303, 1304 (1983).
Because each passing day inflicts additional irreparable harm, Intervenors have worked quickly to vindicate their rights. Within 19 days of the Court issuing the Gag Order, Intervenors organized a nearly thirty-person coalition, retained counsel, and filed a challenge in the Idaho Supreme Court.
The Idaho Supreme Court recognized the urgency of Intervenors ' challenge. Within 3 days of Intervenors re-filing their challenge to include a verification signed by the coalition members and not counsel, the Idaho Supreme Court ordered briefing on an expedited basis. Olson Decl. Exs.
B & C. And when the Latah County Prosecutor and Mr. Kohberger moved to intervene, the Idaho Supreme Court granted their motions without full briefing and without modifying the already-set merits briefing schedule. Olson Decl. Ex. D.
On April 24, 2023, the Idaho Supreme Court held that a " vague, overbroad, unduly restrictive, or not narrowly drawn " gag order " would be an unconstitutional obstacle to " Intervenors. In re Petition for Writ of Mandamus or Writ of Prohibition, No. 50482, 2023 WL 3050829, at * 5 (Idaho Apr. 24, 2023). But the Idaho Supreme Court denied Intervenors ' petition because it held that a " plain, speedy, and adequate remedy at law exists " if Intervenors were to seek relief from this Court. Id. at * 7 (emphasis added).
Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023-3
Following the Idaho Supreme Court's direction, Intervenors took merely 7 days to prepare and file their Motion to Intervene and Motion to Vacate the Amended Nondissemination Order.
Olson Decl., Exs. E & F. The next day, Intervenors contacted the Court to schedule the next available hearing date, which would automatically set the briefing schedule for the motions. Idaho Rule of Civil Procedure 7 (b) (3); Idaho Criminal Rule 45 (c). Instead of providing a hearing date, the Court set a scheduling conference for May 22, 2023. Olson Decl., Ex. G. The Court also vacated the May 25, 2023 hearing date for a related motion filed by a victim's family, which presumably is, or at least was, available on the Court's calendar to hear that motion and Intervenors ' motions. Id. Intervenors understand that a briefing schedule for their motions will not be set until after the scheduling conference.
Respectfully, waiting 3 weeks from when Intervenors filed their motion to have a conference to then provide additional time for briefing prolongs the irreparable harm inflicted by the Gag Order and contradicts the Idaho Supreme Court's holding that Intervenors could obtain a plain, speedy, and adequate remedy by re-filing their challenge with this Court. The Latah County Prosecutor and Mr. Kohberger have already briefed the constitutional issues before the Idaho Supreme Court, and they are thus better situated than the typical litigant to satisfy the briefing schedule set in Idaho Rule of Civil Procedure 7 (b) (3) and Idaho Criminal Rule 45 (c) by the next available hearing date.
Accordingly, Intervenors request that the Court reconsider its order dated May 4, 2023 and either (1) stay enforcement of the Gag Order pending a decision on Intervenors ' Motion to Intervene and Motion to Vacate the Amended Nondissemniation Order to avoid any additional irreparable harm while the motions are briefed, or (2) set a hearing on Intervenors ' Motion to Intervene and Motion to Vacate the Amended Nondissemniation Order on the next available date Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023-4
on the Court's calendar to trigger the briefing schedule in Idaho Rule of Civil Procedure 7 (b) (3) and Idaho Criminal Rule 45 (c).
DATED: May 9, 2023. STOEL RIVES LLP / s / Wendy J. Olson Wendy J. Olson Cory M. Carone Attorneys for Intervenors Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023-5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 9th day of May 2023, I served a true and correct copy of the within and foregoing upon the following named parties by the method indicated below, and addressed to the following:
Latah County Prosecutor's Office Hand Delivered William W. Thompson, Jr. Mailed Postage Prepaid Prosecuting Attorney Via Facsimile Latah County Courthouse U.S. Mail P.O. Box 8068 Via email Moscow, ID 83843 X Via iCourt efile & serve at:
paservice@latahcounty.id.gov Anne Taylor Hand Delivered Attorney at Law Mailed Postage Prepaid P.O. Box 9000 Via Facsimile Coeur d'Alene, ID 83816 U.S. Mail ✗ Via email at ataylor@kcgov.us Via iCourt efile & serve at:
pdfax@kcgov.us Jeff Nye Hand Delivered Deputy Attorney General Mailed Postage Prepaid P.O. Box 83720 Via Facsimile Boise, ID 83720 U.S. Mail ✗ Via email at jeff.nye@ag.idaho.gov Via iCourt efile & serve at:
Shanon Gray Hand Delivered 2175 N. Mountain View Road Mailed Postage Prepaid Moscow, ID 83843 Via Facsimile U.S. Mail Via email X Via iCourt efile & serve at:
shanon@graylaw.org / s / Wendy J. Olson Wendy J. Olson Memorandum in Support of Motion to Reconsider Order Dated May 4, 2023-6