Sponsored by the

Indian Law Section

TheAdvocateOfficial Publicationof the Idaho State BarVolume 54, No. 8August 2011

2 The Advocate

!"#$%&"'(%)*+#,-%./0#%/%(#/*%#$-/-#%,##12!"#$%&'%()*#+%')%,#-+&$./%0#1,#-+&$./ )0%234&$.%()**#0(&-,%+5-(#/%&'6+%$)'%73+'%-2)3'%'"#%()+'%5#0%+83-0#%9))':%;3$('&)$-,&'4/%,)(-'&)$/%)5#0-'&)$-,%()+'+/%9,))0%5,-'#%#99&(&#$(4/%5"4+&(-,%5,-$'%<=>?/%'0&5,#%$#'%9##+%-$@%(300#$'%A-(-$(4%0-'#+%-,,%#99#('%'"#%#83-'&)$:%<)B%@)%4)3%"#,5%4)30%(,&#$'%*-C#%'"#%2#+'%5)++&2,#%@#-,D

3'-%"'(%4/(5#-%#67#(-+$#%/,1%(#/*%#$-/-#%5,"8*#19#%-"%8"(5%",%&"'(%)*+#,-:$%-#/4;!#6,,%"#,5%4)3%C##5%'"#%(,&#$'%&$9)0*#@%-$@%()*9)0'-2,#%&$%'"#&0%C$)B,#@.#%)9%B"-'6+%-A-&,-2,#%&$%')@-46+%()**#0(&-,%0#-,%#+'-'#%*-0C#':%

!"#'"#0%&'6+%#A-,3-'&$.%+5-(#/%()$+&@#0&$.%93,,4%,)-@#@%)5#0-'&)$-,%()+'+/%)0%()$'#*5,-'&$.%.0)B'"%)5'&)$+/%E#$-$'%F#-,'4%>@A&+)0+%(-$%"#,5%#$+30#%4)360#%50)'#('&$.%'"#%2#+'%&$'#0#+'+%)9%4)30%(,&#$':%

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

3("-#)-%-.#%A#$-%+,-#(#$-$%"?%$!(, )*+#,-;

L+**+/4%=;%@#)5%MNO=P%3(+,)+7/* DEF;HHH;JEKE 888;-#,(#/*/1;)"4 A#)5Q-#,(#/*/1;)"4

The Advocate

!"#$%$&'(#)*('"$+',-$.%+/$,/'.-#'-0/#'122'3/"#*4!"#"$%#$&"#'&$(%'%#$&)*(+&,-%.#/01&,*23-.4&5%#"#,%"-&3-"##%#$&2."#0&3(//%#$&)*(+&+.3(/"/%*#&*#&/6.&-%#.7

!"#$%&'()%'&*#%+,-%.,/%',%-#0,**#$1%2%0,-3,-2'#%'-/)'##4%.,/%02$%5#%2))/-#1%'"2'%!2)"&$6',$%7-/)'()%!#28'"%92$26#*#$'%2$1%:1;&),-.%<#-;&0#)%'#2*%=&88%3-,'#0'%.,/-%3-,+#))&,$28%&$'#6-&'.>

!#%2-#%2%0,-3,-2'#%'-/)'##%'"2'%/$1#-)'2$1)%,/-%-,8#%&$%)/33,-'&$6%'"#%8#628%0,/$)#8%.,/%3-,;&1#%.,/-%08&#$')>% ?/-% 2% +/88@-2$6#% ,+% '-/)'% )#-;&0#)% 2-#% 0,*38#*#$'#1% 5.% ,/-% '#0"$&028% #A3#-'&)#4% )#$)&'&;&'.4%0,$+&1#$'&28&'.4%2$1%2%=#88@#2-$#1%-#3/'2'&,$%+,-%3#-),$28&B#1%2$1%/$5&2)#1%3,-'+,8&,%*2$26#*#$'>

C#2-$%*,-#%25,/'%,/-%#A3#-'%+&1/0&2-.%)#-;&0#)%2'D%8"/+(0/7,*29:.$"-;<=

BOISE 208.345.3343 | COEUR D’ALENE 208.667.7993 | SPOKANE 509.353.3898SEATTLE 206.667.8989 | BELLEVUE 425.709.5500 | PORTLAND 503.778.7077

4 The Advocate

Care Management, Coordination, and Advocacy

Families Struggling with Alzheimer’s, Dementia and

Other Chronic Health Care Issues Need Expert Assistance

Asset protection

Estate planning

Family empowerment in times of great need

A team of nurses and social workers

On-site needs assessments

Assistance with transitions

Peace of mind

Sisson & Sisson, The Elder Law Firm, PLLCLife Care Planning Medicaid & Estate Planning

The Care Management Team, LLCProtecting Your Quality of Care and Quality of Life

The Care Management Team, LLCProtecting Your Quality of Care and Quality of Life

Sisson & Sisson, The Elder Law Firm, PLLCLife Care Planning Medicaid & Estate Planning

The Advocate

The Advocate

Feature ArticlesSection WelcomeBrian P. McClatchey

Tribal Sovereignty, Jurisdiction, Zoning, and Environmental RegulationsCharissa A. Eichman

A Jury of Their Peers: Can a Native American Defendant Be Tried by a Jury of His Peers in the United States?Jason Brown

The Native Law Program at the University of Idaho: A Third Year of SuccessAngelique EagleWoman

The Tribal Law and Order Act of 2010: Toward Safe Tribal CommunitiesBrian P. McClatchey

36

38

ColumnsReed W. Larsen

Diane K. Minnich

News and Notices

49

On the Cover-

Section Sponsor The Advocate

Cover art sought

Editors

Letters to the EditorThe Advocate -

Protections Available to Victims of Domestic Violence: No Contact Orders, Civil Protection Orders, and Other OptionsAnnie Pelletier Kerrick

Title VII Retaliation against Third Parties under Thompson v. North American Stainless, LPMark DeMeester

E-Editing: Time Saving TipsTenielle Fordyce-Ruff

Advocates in ActionStephen A. Stokes

2011 Distinguished Lawyers

Federal Prisoner Rights Case Gets Pro Bono Firepower: James Huegli Finds Meaning Helping Inmates, Evading Pirates and Giving BackDan Black

6 The Advocate

AdvocateMANAGING EDITORDan BlackEXECUTIVE DIRECTORDiane K. MinnichEDITORIALADVISORY BOARDJohn N. Zarian, Chairperson Sara M. Berry Thomas H. ClarkTenielle Fordyce-RuffDaniel J. Gordon Brian P. KaneGene A. PettyScott E. Randolph Jennifer M. SchindeleHon. Kathryn A. SticklenBrent T. WilsonCommissioner LiaisonMolly O’Leary

BOARD OF COMMISSIONERSReed W. Larsen, PresidentPaul W. Daugharty, CommissionerMolly O’Leary, CommissionerWilliam H. Wellman, CommissionerRobert T. Wetherell, Commissioner

ADVOCATE STAFFDan BlackManaging Editordblack@isb.idaho.govBob StrauserSenior Production EditorAdvertising Coordinatorrstrauser@isb.idaho.govKyme GrazianoMember Services AssistantLRS Coordinatorkgraziano@isb.idaho.govwww.idaho.gov/isb(208) 334-4500

Copyright© 2011 The Idaho State Bar. The editorial contents of this publication are the opinions of the authors and do not necessarily represent or

the Idaho State Bar. The Advocate has the authority to edit material

submitted for publication. Appearance of an advertisement in The Advocate does not constitute a recommendation or endorsement by The Advocate or the Idaho State Bar of the goods or services offered therein. The Idaho State Bar Editorial Advisory Board reserves the right to reject advertising determined not to be in keeping with the publication’s standards.The Advocate (ISSN 05154987) is published the following months: January, February, March, April, May, June, August, September, October, November, and December by the Idaho State Bar, 525 W. Jefferson Street, Boise, Idaho 83702. Subscriptions: Idaho State Bar members receive The Advocate as part of their annual dues payment. Nonmember subscriptions are $45 per year. Periodicals postage paid at Boise, Idaho.POSTMASTER: Send address changes to:The AdvocateP.O. Box 895Boise, Idaho 83701

The

Healthcare costs are a growing concern.

1 (800) FOR-ALPS

A

The Advocate

!!!!!!"##$%&'()!*$!+*,*'+*'#+-!./0!$1!,**$%(23+!,%2!'(!,!+$4$!5%,#*'#2!$%!6!!

! !! !

!!*,'4$%2&!*$! !

!

AR Ins. Lic. #245544 CA Ins. Lic. #0633005d/b/a in CA Seabury & Smith Insurance Program Management 51604, 51605, 51606, 51607, 51608, 51609, 51610, 51611 ©Seabury & Smith, Inc. 2011

Liberty Insurance Underwriters Inc., a member company of Liberty Mutual Group. Liberty is rated A (Excellent) by A.M. Best Company.

To obtain your customized quote, contact:

Your practice doesn’t face the same risks as a big law !rm with hundreds of attorneys.

1-800-574-7444Denise Forsman Client Executive—Professional Liabilitywww.proliability.com/lawyer

Proliability Lawyer Malpractice Program:Administered by Marsh U.S. Consumer, a service of Seabury & Smith, Inc.

So why pay for a malpractice plan that’s focusing on those big !rms?

’

Underwritten by:Liberty Insurance Underwriters Inc.55 Water Street, New York, New York 10041May not be available in all states. Pending underwriter approval.

40%40% of Eide Bailly’s forensic accounting

work involves fraud investigations.

Fraud Investigations | Fraud Detection | Fraud Hotline | Background Checks | Litigation Support

208.424.3510 | www.eidebai l ly.com

8 The Advocate

August

CLE Idaho: Lunch and Replay – Employment Law and Practitioner Ethics

August 15CLE Idaho: Lunch and Replay – Adoption Law and Criminal Law Ethics

Business without Borders: International Law for the Idaho Attorney

Live Seminars

Online On-demand Seminars

Webcast Seminars

Recorded Program Rentals

Upcoming CLEs

Attend a CLE that keeps you on the cutting edge

CLE Idaho: Lunch and Replay – Wrongful Death Case and Law Practice Ethics

September

Annual Advanced Estate Planning Seminar

Ethical Considerations in Starting and Sustaining a Solo and Small Group Practice

The Advocate

PRESIDENT’S MESSAGE

HAVE I DONE ANY GOOD IN THE WORLD TODAY

Reed W. LarsenPresident, Idaho State Bar Board of Commissioners

Have I Done Any Good?

Have I done any good in the world today?Have I helped anyone in need?Have I cheered up the sad and made someone feel glad?If not, I have failed indeed.Has anyone’s burden been lighter todayBecause I was willing to share?Have the sick and the weary been helped on their way?When they needed my help was I there?

Then wake up and do something moreThan dream of your mansion above.Doing good is a pleasure, a joy beyond measure,A blessing of duty and love.

There are chances for work all around just now,Opportunities right in our way.Do not let them pass by, saying, “Sometime I’ll try,”But go and do something today.’Tis noble of man to work and to give;Love’s labor has merit alone.Only he who does something helps others to live.To God each good work will be known.

Text and music: Will L. Thompson, 1847–1909

Have I Done Any Good?

Reed W. Larsen

The Advocate

If we just keep working something good eventually happens. It is never

only after the last.

About the AuthorReed W. Larsen is a founding part-

ner at Cooper & Larsen in Pocatello. His practice includes auto accident cases, re-

petitive trauma injuries in the workplace, Federal Employer Liability Act (FELA) litigation, railroad crossing cases, per-sonal injury insurance defense, agricul-tural litigation and Indian law.

He is a 1985 graduate from the Uni-versity of Idaho College of Law. He has served as a Commissioner for the Sixth and Seventh Judicial Districts since 2009 and is currently serving a year term as President of the Idaho State Bar Board of Commissioners.

Reed is married to Linda M. Larsen and together they have three children.

KEEPING UP WITH CASE LAW?

ISCR/ICAR – Idaho Supreme Court Report / Idaho Court of Appeals Report

IBCR – Idaho Bankruptcy Court Report

GOLLER PUBLISHING CORPORATION

The Advocate

IDAHO ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

I A C D L STANDING TALL FOR THE ACCUSED

FOR THOSE WHO TAKE CRIMINAL DEFENSE SERIOUSLY.

2011 REGIONAL SEMINARS SEPTEMBER 17 IN COEUR D’ALENE

OCTOBER 14 IN BOISE

NOVEMBER 4 IN POCATELLO

Contact IACDL Executive Director Debi Presher

In the fi nancialwilderness...

Send your clients to a local institution you can trust. With over 100 years of experience, our Trust & Investment

Services* can offer your clients solid fi duciary and investment management solutions.

Strong, Steady Trust & Investment Services to help you Prosper in Every Season.

(208) 415-5705

Tr

Trust & Investment Services*

.

*Trust & Investment Services is a Division of Panhandle State Bank. Its investmentsare not a deposit; not FDIC insured; not guaranteed by the bank; not insured by any

federal government agency; and may lose value.

The Advocate

DISCIPLINE

SHAWN C. NUNLEY

THOMAS F. HALE

NOTICE TO TOM HALE OF CLIENT ASSISTANCE

FUND CLAIM

The Advocate

Let the Lawyer Referral Service send clients your way.

Did You Know?

To learn how to sign-up for LRS contact Kyme Graziano at (208) 334-4500.

The Advocate

NEWS BRIEFS

Hon. Linda Copple Trout recognized

Justice Roger S. Burdick to Serve as Chief Justice of Idaho Supreme Court

Otter appoints Norton to replace Boise judge

Eric White earns prestigious history award

Hon. Linda Copple Trout

Chief Justice Roger S. Burdick Lynn Graham Norton

The Advocate

NEWS BRIEFS

Washington State University study suggests traditional blood spatter analysis may lead to false results

State of Idaho v. Rodgers

Id

Rodgers

Locating the Source of Projectile Fluid Droplets

American Journal of Physics

Bonner County Courthouse to close its doors - temporarily

Law Foundation Releases 2011 Annual Report

Idaho Volunteers Lawyers Program

Law Related Education

The IOLTA Grant Program

Continuing Legal Education

Eric White

The Advocate

ADR SERVICES

Elam & Burke

JOHN MAGEL

Litigation & ADR

hawleytroxell.com | 208.344.6000 | Boise Hailey Pocatello RenoHawley Troxell Ennis & Hawley LLP

Ethics & Lawyer Disciplinary Investigation & Proceedings

Do you have clients with

T A X P R O B L E M S ? Martelle, Bratton and Associates

represents clients with Federal and State tax problems

OFFERS IN COMPROMISE

APPEALS BANKRUPTCY DISCHARGE INNOCENT SPOUSE INSTALLMENT PLANS PENALTY ABATEMENT

TAX COURT REPRESENTATION TAX RETURN PREPARATION MORTGAGE MODIFICATIONS

Martelle, Bratton and Associates208-938-8500

873 East State Street Eagle, ID 83616

E-mail:attorney@martellelaw.com www.martellelaw.com

Contact:

The Advocate

EXECUTIVE DIRECTOR’S REPORT

2011 Resolution ProcessDiane K. MinnichExecutive Director, Idaho State Bar

2011 District Bar Association Resolution MeetingsDistrict Date/Time City

Thank you

Diane K. Minnich

James C. Meservy Deborah A. Ferguson

The Advocate

MESSAGE FROM THE INDIAN LAW SECTION

Brian P. McClatchey Coeur d’Alene Casino Resort Hotel

Brian P. McClatchey

r

About the AuthorBrian P. McClatchey is the In-House

Attorney at the Coeur d’Alene Casino & Resort. A graduate of the University of Washington and the University of Michi-gan Law School, Brian’s practice encom-passes real property, employment, envi-ronmental and construction law matters.

Indian Law SectionChairperson

Vice Chairperson

Secretary/Treasurer

877 Main Street Suite 1000Boise, ID 83702

Phone: 208.388.4836Fax: 208.342.3829mclark@hawleytroxell.com www.hawleytroxell.com

Mr. Clark

Mr. Clark

Discovery Master

Facilitation

Merlyn W. Clark

The Advocate

TRIBAL SOVEREIGNTY, JURISDICTION, ZONING, AND ENVIRONMENTAL REGULATIONS

Charissa A. Eichman National Wildlife Federation

When answering questions related

government interests.

Zoning and environmental regulations

Brendale v. Confederated Tribes and Bands of Yakima Indian Nation 2 City of Albuquerque v. Browner, New Mexico v. Mescalero Apache Tribe. 4

Brendale: determining the tribal interest

Brendale

Browner: tribe can establish more stringent standards

Browner

r

6

Mescalero Apache: wildlife as a tribal resource

Mescalero Apache

Courts: a balanced approach to sovereignty

Charissa A. Eichman

The Advocate

Challenges inherent to zoning as an exercise of sovereignty

Checkerboarding

8

Brendale

Non-member activities

Browner

Educating the public on tribal issues

Conclusion

About the AuthorCharissa A. Eichman works for the

National Wildlife Federation with the Tribal Lands and Public Lands Programs. She earned her J.D., at the University of Idaho College of Law; and an L.L.M. at the University of Tulsa Law School.Endnotes

2 Brandale v Confederated Tribes and bands of Ya-kima Indian Nation City of Albuquerque v. Browner

cert. denied4 New Mexico v. Mescalero Apache Tribe,

Brandale v Confederated Tribes and bands of Ya-kima Indian Nation6 City of Albuquerque v. Browner

cert. denied New Mexico v. Mescalero Apache Tribe,

8 %The State of the Native Nations

Mediator/Arbitrator

The Advocate

A JURY OF THEIR PEERS: CAN A NATIVE AMERICAN DEFENDANT BE TRIED BY A JURY OF HIS PEERS IN THE UNITED STATES?Jason Brown

2

Selection methods

Batson v. Kentucky Batson

o

4

What does a jury of one’s peers mean?

Duren v. Missouri6

Jason Brown

The Advocate

Because Native Americans are excluded

made that not all U.S. citizens are

8

Batson v. Kentucky11 Long

Cultural Implications

Solutions

About the AuthorJason Brown graduated from the Uni-

versity of Idaho College of Law in May 2011 with an Emphasis in Native Ameri-can Law. This article is an excerpt from a 35 page article on the same topic. Mr. Brown can be contacted at brow6412@vandals.uidaho.edu.Endnotes

2

4

6

8

22 The Advocate

THE NATIVE LAW PROGRAM AT THE UNIVERSITY OF IDAHO: A THIRD YEAR OF SUCCESS

Angelique EagleWomanUniversity of Idaho College of Law

Angelique EagleWomen

Professor EagleWoman was -

mittee on the Development of Federal Indian Law (DFIL) of

-tee recommends actions for the

Supreme Court cases which -

dian law and seeking the inclu-

The Advocate

About the AuthorAngelique EagleWoman is the chief

architect of University of Idaho College of

Law’s academic emphasis in Native Law. It is modeled after the program at the University of Tulsa, Oklahoma, where she received her master’s degree in law. Ea-gleWoman also studied political science at Stanford University and holds a juris doctor at University of North Dakota. She is the James E. Rogers Fellow in Ameri-can Indian Law at University of Idaho and currently serves as immediate past chair and secretary of the Association of American Law Schools (AALS) Section on Indian Nations & Indigenous Peoples. EagleWoman joined the Idaho College of Law faculty in 2008 and also serves on the University’s American Indian Studies (AIST) faculty.

HuegliMediation & Arbitration

Personal injury, commercial disputes, construction law, professional liability.

Available Statewide.

James D. Huegli

Martelle, Bratton & Associates, P.A.

No Obligation Consultation

Martelle, Bratton & Associates, P.A.

The Native Law program hosts an annual law conference at the end of March on important contemporary

24 The Advocate

THE TRIBAL LAW AND ORDER ACT OF 2010: TOWARD SAFE TRIBAL COMMUNITIES

Brian P. McClatchey Coeur d’Alene Casino Resort Hotel

powers separate from the states and the federal

and their people.

2

Background

4

6

8

Brian P. McClatchey

The Advocate

The implication is not hard to see: if the state has

Jurisdictional gaps

22

24

2

The beginning of the solution?

26

28

26 The Advocate

Conclusion

About the AuthorBrian P. McClatchey is the In-House

Attorney at the Coeur d’Alene Casino & Resort. A graduate of the University of Washington and the University of Michi-gan Law School, Brian’s practice encom-passes real property, employment, envi-ronmental and construction law matters. Endnotes

2

available at:

8

See, e.g., Worcester v. Georgia

4

6

Ex Parte Crow Dog

Criminal Jurisdiction over

Indian Lands: A Journey Through A Jurisdictional Maze8

See generallyPublic Law 280: The Limits of State Jurisdic-

tion over Reservation Indians

See

See State v. Barros State v. Major State v. Ambro

22

available at:

24 Id.

26

Gideon v. Wainwright

28

Id.

Id.

See supra

!"##$%&'()*+$()**,-.(.$*/$$0-1*

23#*4"5%*,67$%.8*9:*4$(%-*)"&()*#(%;$.*$67$%'$<&$**

!"##$"%&'()$*%

===>0;&"##$%&'()>&"#*

!"##$%&'()*+$()*,-.(.$*/%"0$%*!"#$%#&'()*+,*-.//0"%#'(*12*345267728489*****-2*345257427446*

!"##$%&'()*+$()**,-.(.$*/$$0-1*

23#*4"5%*,67$%.8*9:*4$(%-*)"&()*#(%;$.*$67$%'$<&$**

!"##$"%&'()$*%

===>0;&"##$%&'()>&"#*

!"##$%&'()*+$()*,-.(.$*/%"0$%*!"#$%#&'()*+,*-.//0"%#'(*12*345267728489*****-2*345257427446*

!"##$%&'()*+$()**,-.(.$*/$$0-1*

23#*4"5%*,67$%.8*9:*4$(%-*)"&()*#(%;$.*$67$%'$<&$**

!"##$"%&'()$*%

===>0;&"##$%&'()>&"#*

!"##$%&'()*+$()*,-.(.$*/%"0$%*!"#$%#&'()*+,*-.//0"%#'(*12*345267728489*****-2*345257427446*

GEORGE D. CAREY

The Advocate

28 The Advocate

COURT INFORMATION

Idaho Supreme Court

OFFICIAL NOTICE COURT OF APPEALS OF IDAHO

Chief Judge

Judges

Idaho Court of Appeals

OFFICIAL NOTICESUPREME COURT OF IDAHO

Chief Justice

Justices

Lewiston

The Advocate

The Advocate

Idaho Supreme Court and Court of Appeals NEW CASES ON APPEAL PENDING DECISION

(Updated 7/1/11)

CIVIL APPEALSAttorney Fees and Costs

Grant v. Griggs

Oakes v. Boise Heart Clinic Physicians

Evidence

Lakeland True Value Hardware v. Hartford Fire Insurance Co.

License Suspension

Wilkinson v. Department of Transportation

Substantive Law

Benz v. D.L. Evans Bank

Bach v. Dawson

Summary Judgment

Paddison Scenic Properties Family Trustv. Idaho County

Fragnella v. Petrovich

Huskinson v. Nelson

Stevenson v. Windermere Real Estate

res judicataSilver Eagle Mining Co. v. State

CRIMINAL APPEALS

Evidence

State v. Herrera

State v. Toyne

Pleas

State v. Woodley

State v. White

Probation Revocation

State v. Roberts

Restitution

State v. Cottrell

State v. Eatinger

Suppression of Evidence

State v. Linenberger

State v. Acosta

State v. Decker

State v. Wilske

Substantive Law

State v. Summers

State v. Giovanelli

Cathy DerdenSupreme Court Staff Attorney

The Advocate

R. Bruce OwensAttorney at Law

of the Firm,

Admitted ID and WA

Association or fee split on Malpractice & other Serious Injury CasesMediation, Arbitration & ADR Services in a new o!ce facility

Martindale-Hubbell AV ratedNamed “Best Lawyers in America” since 1993

Named “Mountain States Super Lawyer” in 2010Certi"ed Civil Trial Specialist since 1995

208-667-89891-877-667-8989

8596 N. Wayne Dr., Suite AHayden, ID 83835

Email: bruce@cdalawyer.com

STEPHEN J. OLSON, P.C.

Stephen J. Olson, P.C.

For more information contact Jeff Banks208.332.0718 | Jeff.Banks@westerncapitalbank.com

Fine print has its place. Just not in a banking relationship. That’s why we developed straight-forward, real-world banking solutions for legal professionals. Frankly, we work hard to understand some of the unique banking needs of law firms. Like how progress billing affects cash flow. Or the financial implications of professional partnerships. And, believe us, we’re not just hurling platitudes or marketing slogans here. We’ve actually put a team in place with significant experience helping law firms both with their day-to-day banking needs as well as more complex transactions such as buying real estate. We even work closely with our attorney clients to better integrate their business and personal banking matters in a way that makes sense. It’s only logical. Sorry. We’re starting to ramble. And we’re not even to the part about our competitive rates and stability (did we mention we have the highest capital ratio in Idaho?). Really. We should stop. But hopefully you understand what we’re trying to say. If you don’t or if you have questions about how we can help you, let’s talk: call us at 208.332.0700 or visit www.westerncapitalbank.com. Thanks for reading.

*

The Advocate

PROTECTIONS AVAILABLE TO VICTIMS OF DOMESTIC VIOLENCE: NO CONTACT ORDERS, CIVIL PROTECTION ORDERS, AND OTHER OPTIONS

Annie Pelletier Kerrick Idaho Coalition Against Sexual & Domestic Violence

It is essential for civil attorneys representing a victim of domestic violence to consult with

their clients to determine if an order of protection will enhance safety or increase risk

2

History of protections for victims of domestic violence

4

6

Civil protection orders

8 F

Protection orders issued pursuant to the Idaho Domestic Violence Crime Prevention Act

Annie Pelletier Kerrick

The Advocate

Domestic violence civil protection orders

protection for a victim of domestic violence.

ex parte

ex parte

17

22

Protection order issued as a part of a criminal or civil action

The Advocate

24

Criminal no contact orders

26

28

Injunctive relief or temporary restraining orders

Conclusion

About the AuthorAnnie Pelletier Kerrick is an attor-

ney at the Idaho Coalition Against Sexual & Domestic Violence in Boise, where she has worked since her graduation from Gonzaga University School of Law in 2007. Annie manages the Idaho Legal Assistance for Victims Grant Program funded through the U.S. Department of

-

Victims of domestic violence may have to do things that seem illogical to simply survive

the situation they are living.

The Advocate

en, and focuses her work on addressing the civil legal needs of teenage and young adult victims of dating abuse and sexual assault.

Endnotes

2 See NAT’L INST. OF JUST., U.S. DEP’T OF JUST., RE-SEARCH PREVIEW: CIVIL PROTECTION ORDERS: VICTIM’S VIEWS ON EFFECTIVENESS

Enjoining Coercion: Squaring Civil Protection Orders with the Reality of Domestic Abuse, J.L. & FAM. STUD.

see Developments in the Law – Legal Responses to Domestic Violence, HARV. L. REV and see

4 The Subjection of

for Women Victims of Domestic Violence, 26 ST. MARY’S L.J.

supra

6 supra

COMM’N ON DOMESTIC VIOLENCE, AM. BAR ASS’N, DOMESTIC VIOLENCE CIVIL PROTECTION ORDERS (CPOS) BY STATE (2008), HTTP://WWW.AMERICAN-BAR.ORG/CONTENT/DAM/ABA/MIGRATED/DOMVIOL/DOCS/DV_CPO_CHART_8_2008.AUTHCHECKDAM.PDF

8 NAT’L INST. OF JUST., supraIDAHO

CODE ANN IDAHO CODE ANN.

IDAHO CODE ANN. § 39-6303(8)( ). Id. MAUREEN SHEERAN & EMILIE MEYER, CIVIL PRO-

TECTION ORDERS: A GUIDE FOR IMPROVING PRACTICE

Id. IDAHO CODE ANN IDAHO CODE ANN. But see, NAT’L INST. OF JUST., U.S. DEP’T OF JUST.,

RESEARCH PREVIEW: CIVIL PROTECTION ORDERS: VIC-TIM’S VIEWS ON EFFECTIVENESS, 1 (1998), available at (“[R]

IDAHO CODE ANN

IDAHO CODE ANN

MAUREEN SHEERAN & EMILIE MEYER, CIVIL PROTECTION ORDERS: A GUIDE FOR IMPROVING PRACTICE

IDAHO CODE ANN.

Id.

Id. 22 JACQUELYN CAMPBELL ET AL., INTIMATE PARTNER VIO-LENCE RISK ASSESSMENT VALIDATION STUDY, FINAL RE-PORT 11 (2005) available at

IDAHO CODE ANN24 Id.

26 IDAHO CODE ANN. IDAHO CRIM. R

28 Id. IDAHO CONST. IDAHO CODE ANN. IDAHO CRIM. R IDAHO R. CIV. PRO. 65(

!"#$#%&#'!"()*#'**)!"+,#+$!"#$#"*-#.*/0.*1)!2*#$"3#2$4($54*#!"67/'$)!7"#'$)*/!$448#3!66*/*")#6/7'#

)9$)#75)$!"*3#6/7'#.4$"#./72!3*/0

FOR A MODEST FIXED FEE CONSULT, WE WILL EVALUATE, DIAGNOSE, MAKE RECOMMENDATIONS AND FIELD QUESTIONS FOR ANY PLANS

IN MINUTES YOU OR YOUR CLIENTS SHOULD LEARN

Y &

A Practice Devoted Exclusively to Employee Benefit Issues including 401(k), Retirement, Deferred Compensation, Health, Cafeteria and Other Plans

Achieving your employee benefit

The Advocate

TITLE VII RETALIATION AGAINST THIRD PARTIES UNDER THOMPSON V. NORTH AMERICAN STAINLESS, LPMark DeMeester Hewlett Packard Company

In analyzing whether Thompson was

the concept that only employees personally

Introduction

Thompson v. North American Stainless LP 2 Thompson

Burling-ton Northern and Santa Fe Railway Co. v. White Burlington

Thompson

4

Thompson

The back and forth of Thompson

6

8

The Supreme Court interprets Title VII anti-retaliation language

Burlington.Mark DeMeester

The Advocate

Burlington

Burlington

Burlington

Practical implications of Thompson

Thompson

Thompson

Thompson

Conclusion

Thompson

22

About the AuthorMark DeMeester is a Senior Em-

ployment Counsel in the Hewlett-Packard Company Legal Department. The views expressed in this article are his alone and

Packard Company.Endnotes et. seq.

2

4

Equal Employment Opportunity Commission, Enforcement and Litigation Statistics

6

Id.8 Thompson v. North American Stainless LP

rev’d

Id

Thompson v. North American Stainless, LP

aff’d,rev’d

Thompson v. North American Stainless LPreh. en banc granted,

opinion vacated

See

quoting Burlington

Id Id Id Id Burlington

citation omitted

BurlingtonThompson

Burlington

22 Thompson

See McGhee v. Healthcare Servs. Grp. Inc.,

Thompson EEOC v. Williamette Tree Wholesale Inc

The door to third-party retaliation claims has

requiring management

to consider such potential challenges

when planning adverse employment actions.

The Advocate

E-EDITING: TIME SAVING TIPS

Tenielle Fordyce-Ruff Smith, Fordyce-Ruff, & Penny, PLLC

on your word processor to quickly

citations in

your document. Citation format

Spelling errors

statues

Ambiguous pronouns

Tenielle Fordyce-Ruff

The Advocate

in your document and then check to see

if you should add a noun for clarity.

argument

Wordy phrasesThe Advo-

cateConclusion

About the AuthorTenielle Fordyce-Ruff is a member of

Smith, Fordyce-Ruff & Penny, PLLC. She clerked for Justice Roger Burdick of the Idaho Supreme Court and taught Legal Research and Writing, Advanced Legal Research, and Intensive Legal Writing at the University of Oregon School of Law. She is also the author of Idaho Legal Re-search, a book designed to help law stu-dents, new attorneys, and paralegals nav-igate the intricacies of researching Idaho law. You can reach her at tfordyce-ruff@sfrplaw.com.

The Advocate

ADVOCATES IN ACTION

Stephen A. Stokes

-

o

r

Stephen A. Stokes

The Advocate

About the Author Stephen A. Stokes received his J.D.

from the University of Idaho in 2005. He is an associate with Meyers Law Of-

practices in the areas of family law, com-

mercial planning, general litigation, and personal injury. He is a member of the Idaho Association of Criminal Defense Lawyers and the Idaho Trial Lawyers Association. He served as chair of the Sixth District Bar Association Family Law Section. He is also a Judge Advocate in the Idaho Army National Guard and is currently deployed to Iraq. He can be reached by email at stephen.stokes@iraq.centcom.mil.

We still have a mission to perform here in Iraq –

must successfully and

42 The Advocate

2011 DISTINGUISHED LAWYERS

Judge Larry M. Boyle

The Advocate

Idaho Law Review

Clark Memorandum

Litiga-tion

L. Lamont Jones

Hon. Larry M. Boyle L. Lamont Jones

The Advocate

John Evan Robertson

Richard Wayne SweneyJohn Evan Robertson Richard Wayne

Sweney

44 The Advocate

IN MEMORIAM

John Lawrence Radin1951 – 2011

John W. “Jack” Barrett1931 - 2011

Carl Burke1925 - 2011

John Lawrence Radin

John W. “Jack” Barrett Carl Burke

The Advocate

IN MEMORIAM

Teresa Ann Sobotka 1955-2011

Eugene “Gene” Lantz Miller1922 - 2011

Teresa Ann Sobotka

Eugene “Gene” Lantz Miller

46 The Advocate

Mediation and Arbitration Services

D. Duff McKee

IN MEMORIAM

John Clifford Hepworth 1927 - 2011

John Clifford Hepworth

The Advocate

OF INTEREST

Fleming Opens Firm

2

THE HONORABLE THOMAS G. NELSON

Senior Circuit Judge

Andrews joins Zarian Midgley and Johnson PLLC

Timothy L. Fleming

Fourth District Spring Fling golf tournament

Baxter Q. Andrews

GJORDING & FOUSER, PLLC

48 The Advocate

Delegate... as you would delegate to an

Types of projects:Trial motions and briefs

Mediation/Arbitration

John C. Lynn36 years experience

berpipe.net

Know a Lawyer that needs help withdrugs/alcohol or mental health problems?Please contact the Lawyer Assistance Program for help.

www.SouthworthAssociates.net 800.386.1695CONFIDENTIAL Toll free Crisis Line

24HOUR

HOTLINE866.460.9014

The Advocate

CLASSIFIEDS

ARTHUR BERRY & COMPANY

POWERSERVE OF IDAHO

~ LEGAL ETHICS ~

OFFICE SHARING

CLASS A-FULL SERVICEDOWNTOWN BOISE

TWO EXECUTIVE OFFICE SUITES

MEDICAL/LEGAL CONSULTANT GAS-TROENTEROLOGY

EXPERT COMPUTER FORENSIC SOLUTIONS

INSURANCE AND CLAIMS HANDLING

FORENSIC ENGINEERING EXPERT WITNESS

FORENSIC DOCUMENT EXAMINER

CONSULTANT/EXPERT WITNESS INSURANCE BAD FAITH CLAIMS

EXPERT WITNESSES

EXECUTIVE OFFICE SUITES AT ST. MARY’S CROSSING

TH & STATE

CLASS “A” OFFICE SPACEPlaza One Twenty One

CLASS “A” DOWNTOWN BOISE OFFICE SPACE

.

DOWNTOWN BOISE OFFICE SPACE

SEEKING ESTABLISHED RURAL PRACTICE

OFFICE SPACE

LEGAL ETHICS

OFFICE SPACE

PROCESS SERVERS

SERVICES

SEEKING RURAL PRACTICE

The Advocate

FEDERAL PRISONER RIGHTS CASE GETS PRO BONO FIREPOWER: JAMES HUEGLI FINDS MEANING HELPING INMATES, EVADING PIRATES AND GIVING BACK

relief through the courts. But in the absence of money, those rights are lost to him. In the absence of pro bono service, the poor have no civic and constitutional protection.

r

Dan Black The Advocate Managing Editor

The Advocate

Riggs vs. Valdez

Commitment to service evolves

Calamity on the high seas avoided, another lesson learned

People say you are protected

Pro-bono Case Contacts

HEPWORTH, JANIS & KLUKSDAL, CHTD.

208-343-7510 | 877-343-7510

EXPERIENCE. RESULTS. EXCELLENCE.

W W W. H E P W O R T H L AW. C O M

HJK

We offer free services to supplement your lawyers’

malpractice coverage.With lawyers' professional liability coverage

from Zurich, you gain greater peace of mind

with free access to VersusLawTM for online

research, a loss prevention hotline manned by

Hinshaw & Culbertson for free consultation

and the ability to report claims 24/7, toll-free.

It all adds convenience and cost savings to

your coverage benefits. For greater value.

What if coverage benefits exceeded your expectations?

Contact Moreton today!

208-321-9300 800-341-6789

www.moreton.com

“When Quality Counts”

Certi ed Realtime Reporters

Reporters specializing in complex medical and

construction litigation

Competitive rates

Quick turnaround

24/7 access available to all transcripts and exhibits

through our online repository

Complimentary E-Transcript with every transcript order

Exhibits available digitally and/or in hard copy format

Complimentary full-service conference rooms available

in both downtown Boise and Eagle

702 West Idaho Street, Suite 1100

Boise, ID 83702

Phone: (208)392-1710

Fax: (208)392-1711

www.SimmonsReporters.com

Amy E. Simmons CSR No. 685, RPR, CRR

amy@simmonsreporters.com

2011 Annual MeetingJuly 13-15

The Idaho State Bar would like to thank everyone for attending this year’s Annual Meeting.

Inks: PMS 350 (green)PMS 202 (red)

Thank You To Our Sponsors

Thank You To Our Speakers

Thank You To Our Exhibitors

208.562.0200custeragency.com

EnCase® Certifi ed Examiners

Forensic Imaging Data Analysis Expert Testimony E-Discovery Data Security Penetration Testing Risk Assessments Incident Response

COMPUTER FORENSICS & INFORMATION SECURITY