An Ada County judge could act within a week on a motion to disqualify Attorney General Raúl Labrador from suing the State Board of Education.

District Judge Jason Scott took no action after a 45-minute hearing Thursday.

The hearing came 10 days after State Board lawyer Trudy Fouser filed four motions in the closely scrutinized case.

On June 20, Labrador sued the State Board, claiming the board violated open meetings law when it discussed the University of Idaho’s proposed acquisition of the University of Phoenix in closed executive session. In response, Fouser filed a motion to disqualify Labrador from the case on Aug. 14.

Her argument boils down to a phone call.

According to Fouser, Labrador and his solicitor general, Theo Wold, spoke with State Board Executive Director Matt Freeman on June 20. During the call, Freeman disclosed information about the May 15 board meeting, including details of what occurred in the executive session, reads the motion. Freeman believed Labrador was acting in his role as the State Board’s attorney.

But at the end of the call, Labrador told Freeman he would be suing the State Board. According to Fouser, Labrador exploited his attorney-client relationship with Freeman to obtain confidential information and use it to fuel a lawsuit.

Jenifer Marcus, Labrador’s deputy attorney general assigned to the State Board, was also on the phone call. Marcus had previously advised the board that the executive session was appropriate.

“It is my recollection that the attorney general and/or the solicitor general asked several probing questions about the state of negotiations,” said Fouser, reading from Freeman’s affidavit. “I spoke openly and freely because it was not until the end of the conversation that Ms. Marcus and I were told the attorney general was going to file a complaint. I would not have discussed this information had I known the attorney general could use it to support filing a complaint.”

That, Fouser said, should disqualify Labrador from continuing the case.

“What we are asking for is a level playing field,” Fouser told Scott. “The defendant deserves to have someone prosecuting it, who does not have the benefit of confidential information, who has not already advised them that what they did was appropriate.”

Fouser’s motion does not call for the case to be dropped — only that Labrador hire outside special counsel. That lawyer, said Fouser, should remain “walled off” from any confidential information that was revealed by Freeman during the phone call.

Labrador’s attorney, Timothy J. Longfield, argued that the attorney general’s case was not fueled by any information that resulted from the June 20 phone call. Even if it did, he said, that wouldn’t prevent Labrador from pursuing the case, since it is part of his statutory duty to ensure that state agencies are complying with the law.