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Idaho court orders fixes to grocery tax veto lawsuit, or it’ll be dismissed

UPDATED: Wed., April 26, 2017, 10:07 p.m.

The Idaho Supreme Court building in Boise (Betsy Z. Russell / SR)
The Idaho Supreme Court building in Boise (Betsy Z. Russell / SR)

BOISE – The Idaho Supreme Court issued an order Wednesday morning in the challenge by 30 state lawmakers to Gov. Butch Otter’s veto of the grocery tax repeal bill.

The court ordered that procedural problems with the lawsuit be fixed within 10 days or the case will be dismissed.

According to the order, the lawsuit had two defects: The party being sued, Idaho Secretary of State Lawerence Denney, wasn’t served with the lawsuit by mail at the same time it was filed, as required by court rules; and several attachments to the brief that was filed with the petition should have been attached to the petition, not the brief, in order to assert them as evidence in the case.

Denney, asked if he’d gotten notice that the lawmakers were suing him, said Wednesday morning, “I knew that they were, but we never did receive anything officially.” After hearing of the court’s order, he said with a chuckle, “I suspect that we will have it shortly.”

The Idaho Legislature this year passed legislation to repeal the state’s 6 percent sales tax on groceries, while also repealing the $100-per-person grocery tax credit that Idahoans file for on their income tax returns each year. The estimated hit to state coffers, which would be delayed as the moves are phased in over two years, would come to $79 million a year.

Otter cited concerns over the cost when he vetoed the bill on April 11. That was 11 days, not counting Sundays, after the Legislature adjourned for the year, but just eight days after the governor received the bill from the Legislature on March 31. After lawmakers have adjourned, the governor has 10 days, not counting Sundays, to sign or veto a bill, or it becomes law without his signature.

A group of 30 lawmakers, led by state Rep. Ron Nate, R-Rexburg, filed suit, saying the 10-day clock should start ticking when lawmakers adjourn, so Otter had missed the deadline and the bill had become law. But a 1978 Idaho Supreme Court decision held that the post-session veto clock starts ticking when the governor receives the bill, because otherwise, the Legislature could delay delivery of the bill to the governor and negate his veto powers.

Joint rules of the House and Senate require bills to be delivered to the governor within five days of their passage, but those rules can be changed by lawmakers at any time, and only the Legislature itself can enforce them. That’s why the Supreme Court in 1978 said separation of powers requires the veto clock to start ticking upon delivery of the bill to the governor, to avoid one branch of government usurping the other’s powers.

The lawmakers who filed suit want the court to reverse its 1978 precedent and start the veto clock ticking on the day lawmakers adjourn, in a strict-constructionist reading of the words in the Constitution.

“The central issue in this case strikes at the core of whether the Idaho Constitution means what it says,” the lawmakers’ attorney, former GOP congressional candidate Bryan Smith, wrote in his brief.

Smith on Wednesday acknowledged there were procedural errors in the filing of the suit.

“In our haste to get it filed in the Supreme Court, I did not mail copies.” Also, he said, the attachments were accidentally stapled to the brief, rather than the petition.

He said he would quickly comply with the order.

“We look forward to having the Supreme Court rule on the merits of the case, and we are confident that the Idaho Constitution will prevail,” he said.

Among the lawmakers who have signed onto the lawsuit are nine from North Idaho: Reps. Heather Scott, R-Blanchard; Sage Dixon, R-Ponderay; Vito Barbieri, R-Dalton Gardens; Eric Redman, R-Athol; Ron Mendive, R-Coeur d’Alene; Priscilla Giddings, R-White Bird; and Sens. Steve Vick, R-Dalton Gardens; Mary Souza, R-Coeur d’Alene; and Dan Foreman, R-Moscow.

The grocery tax repeal bill passed 51-19 in the House and 25-10 in the Senate. That’s 73 percent support in the House and 71 percent support in the Senate. Had lawmakers still been in session when the veto was issued, they could have overridden the veto with a two-thirds vote in each house. But the Legislature adjourned for the year two days after the bill passed, before it had even been delivered to the governor.


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