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Idaho Supreme Court upholds grocery tax veto

UPDATED: Tue., July 18, 2017, 10:43 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, in a 4-1 ruling Tuesday afternoon, upheld Gov. Butch Otter’s veto of legislation removing the state’s 6 percent sales tax on groceries.

But the high court also overturned a 39-year-old precedent and ruled that the Idaho Constitution actually requires the Legislature to present all bills to the governor before they adjourn for the year – a ruling that will significantly change how the Idaho Legislature operates at the end of its annual session each year.

The case pitted Idaho’s legislative branch against its executive branch in a struggle for power; in recent years in Idaho, the balance of powers between those branches has been shifting toward the legislative branch. But that wasn’t the result in this case.

In an opinion written by Justice Daniel Eismann, the court overturned its 1978 Cenarrusa v. Andrus ruling – as requested by 30 state lawmakers who sued Idaho Secretary of State Lawerence Denney in their bid to overturn the veto. But the justices found that all sides in the case were “misconstruing Article IV, section 10, of the Idaho Constitution.”

Justice Warren Jones dissented, writing that he favored a “strict constructionist approach to the Constitution.” But Justices Roger Burdick, Joel Horton and Robyn Brody all concurred in Eismann’s opinion.

The high court held that its ruling applies prospectively only – not retrospectively. That means the new rule for when bills must be presented to the governor – for his signature or veto – takes effect now, not for past actions. It’s a win for Denney and Gov. Butch Otter; the court ordered the lawmakers who sued to pay the court costs on appeal.

In Cenarrusa v. Andrus, the court held that once lawmakers have adjourned their session for the year, the governor has 10 days from the time he receives any particular bill to either sign it, veto it, or have it become law without his signature. The 3-2 ruling had gone unchallenged for nearly four decades, but last year, in a different case, two of the current justices – Eismann and Jones – signed a concurring opinion strongly suggesting they thought the Cenarrusa decision was wrong.

The lawmakers who sued contended that the exact wording of the state constitution only gave the governor 10 days from their session’s adjournment – not from when he received the bill. Under their approach, Otter’s veto of the grocery tax bill came too late, and the bill became law without his signature. Under Cenarrusa v. Andrus, the veto was valid.

Otter argued that going with the lawmakers’ interpretation would allow the legislative branch to stymie the governor’s ability to veto bills – by simply delaying them until it’s too late and the deadline’s passed.

“When a bill is presented to the governor and when the legislature adjourns sine die are both within the sole control of the legislature,” Eismann wrote. “Sine die” means without a day – it signifies that the Legislature’s annual session is done for the year.

“If the legislature could present a bill to the governor after adjournment, it could infringe upon the governor’s right to veto the bill by presenting it to him more than 10 days after adjournment,” Eismann wrote. “In summary, Article IV, section 10, of the Constitution clearly and necessarily prohibits the legislature from presenting bills to the governor after the legislature has adjourned sine die.”

Instead, he found, “It requires that bills must be presented to the governor while the legislature is still in session. That is the only logical interpretation of the section.”

The final sentence of Article IV, Section 10 of the Idaho Constitution starts off talking about the governor having five days to return a bill as vetoed “after it shall have been presented to him,” or it becomes law without his signature. But at the end of the lengthy sentence, it says that if “the legislature shall, by adjournment, prevent its return” the bill would have to be vetoed “within 10 days after such adjournment (Sundays excepted) or become law.”

During the oral arguments in the case last month, Justice Joel Horton told David Hensley, attorney for Otter, “I’m having a great deal of trouble finding ambiguity within the phrase ‘10 days after adjournment.’”

Hensley responded, “I would caution the court not to look just at the 10-day language. I would point the court’s attention to the entire sentence, because it says ‘unless the legislature by adjournment shall prevent its return.’” The Cenarrusa case found that all those words have meaning, he said, and suggest the final part of the sentence assumes the governor has a bill in his possession that he’s considering vetoing.

“Otherwise … how can he return that which he does not have?” Hensley asked.

In their decision, the justices found that the constitution does, in fact, imply that the governor would already have been presented with the bill – and that that’s because the Legislature can’t present bills after it adjourns for the year.

Jones, in his dissent, wrote, “Article IV, section 10 is a complex and inartfully drafted provision that is capable of more than one construction depending on which theory of constitutional interpretation is applied. My approach differs from both the majority’s and the Cenarrusa Court’s approach because my approach is not an interpretation at all; rather, it is simply a reading of the specific language of Article IV, section 10.”

But Eismann, in the majority opinion, countered, “The dissent argues that the only prohibitions on legislative actions that can be in a constitution are those that are expressly stated. That argument is contrary to a principle of constitutional interpretation that was well established when the Idaho Constitution was drafted and adopted. … The understanding that a constitution could include express and necessarily implied prohibitions on actions of the legislature was well established prior to the drafting and adoption of our Constitution.”

The end result is that Otter’s veto stands, and Idahoans will continue paying the 6 percent sales tax on groceries – at least for now. But there’s nothing stopping the Legislature from passing the same bill again next year, and this time, getting it to the governor in enough time that lawmakers, if they still have two-thirds support, could override his veto.


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