Otter files to intervene in grocery tax case, defend his veto of repeal bill

BOISE – Idaho Gov. Butch Otter filed to intervene in a lawsuit Wednesday in which his veto of a grocery tax repeal bill is being challenged by state lawmakers, saying it’s both his interest and his duty to stand up for the veto.

“He is in the best position to defend his decision and the process surrounding the veto,” the governor’s attorneys, David Hensley and Cally Younger, argued before the Idaho Supreme Court.

If the governor’s veto were held to be invalid, the bill would become law – and Idaho would remove its 6 percent sales tax from groceries.

A group of state lawmakers contended that Otter’s April 11 veto was too late, falling after a 10-day deadline. But the Idaho Supreme Court held in 1978 that the clock starts ticking on that 10-day deadline for post-legislative session vetoes when the bill actually is presented to the governor, not when the Legislature adjourns for the year.

Idaho’s governor only has five days to veto bills that he receives during the legislative session; if he doesn’t sign or veto them by then, they become law without his signature. But at the end of the session, when the governor receives a big slug of bills all at once, he gets more time.

The Idaho Constitution actually says he has 10 days after adjournment. But the high court held that that would give the Legislature the ability to evade the governor’s veto power simply by waiting to deliver bills to him until the deadline was past; that’s why it set the clock ticking when the governor receives the bill.

The lawmakers sued Idaho Secretary of State Lawerence Denney, challenging his decision to formally accept the governor’s veto of the bill, HB 67a. They want the Idaho Supreme Court to overturn its 1978 ruling, under a “strict constructionist” reading of the Idaho Constitution, and rule instead that the clock starts ticking the moment lawmakers adjourn, regardless of when the governor receives the bill.

If the court does that, Otter’s petition says, it “will upset nearly 40 years of precedent and ultimately alter the balance of power between the executive and legislative branches in favor of the Legislature.”

Otter’s court filing says if he’s allowed to intervene, he’ll file a brief with his own arguments in the case, and that he’ll argue first that the 1978 precedent should be upheld. But he’d also argue that if the court instead opts for a “strict reading of Article IV, section 10 of the Idaho Constitution,” which deals with veto deadlines, then “the same analysis must be applied to Article III, section 14 of the Idaho Constitution,” which requires all revenue legislation to originate in the House, not the Senate.

HB 67a originated in the House, but at that point, it was a bill to cut income tax rates. The Senate amended it by entirely replacing everything in the bill, transforming it into a measure to remove Idaho’s 6 percent sales tax from groceries, eliminate the state’s existing grocery tax credit, and give local governments a higher percentage of state sales tax revenues through revenue sharing, so their funding wouldn’t be cut as a result of the move. The only thing the Senate-passed version had in common with the original House bill was its bill number, and that it dealt with some form of taxes.

“The language of the bill generates revenue and did not originate in the House,” the governor’s attorneys wrote.

Otter also argued in his court filing that if the veto is overturned, the move “will not only supplant the decision of the governor, it will detrimentally impact Idaho taxpayers, schools and programs that rely on general fund revenue.”

That’s because the bill has a fiscal impact on the state general fund, once a two-year phase-in is complete, of $79 million a year. The state’s general fund, which comes largely from sales and income taxes, funds schools, prisons, health and welfare and other state programs.

The court already has scheduled oral arguments in the case for June 15. Denney has been ordered to file a response to the suit by mid-May. If the court allows Otter to intervene, he said he’d follow that same schedule with his response brief.