Today is the day that the Idaho Supreme Court will hear oral arguments in the instant racing case, the lawsuit from the Coeur d’Alene Tribe that raises questions not only about gambling in Idaho, but also about the Idaho Constitution, the balance of power among the state’s executive, legislative and judicial branches, and the proper way to veto a bill. In the case, Coeur d’Alene Tribe vs. Denney, the tribe sued Idaho Secretary of State Lawerence Denney after he refused its request to file SB 1011, the bill repealing the two-year-old authorization for slot machine-like “instant racing” machines, as a law and assign it a code number. The bill had passed both the House and Senate overwhelmingly. Gov. Butch Otter attempted to veto the bill, but delivered the vetoed bill back to the Senate after the five-day constitutional deadline for a veto had expired – which, under the Idaho Constitution, means the bill already had become law without the governor’s signature.
However, the Legislature had adjourned for a long weekend over Easter. When it received the belated veto on the following Monday, the Senate immediately took an override vote, which failed – it got a majority, but not the required two-thirds. The Senate then treated the bill as if it had been vetoed.
Denney has argued that he doesn’t believe he has the authority to file the bill as a law unless someone tells him to – the court or the Senate. Coeur d’Alene Racing, operators of the Greyhound Park in Post Falls, which operates 35 of the gambling machines, argues that the tribe doesn’t have sufficient standing to bring the lawsuit, and that separation of powers should prevent the court from telling the Senate how to proceed. The tribe argues that the Constitution is clear about when a bill is vetoed and when it becomes law, and the court should order Denney to file it as a law.
This morning at 10 a.m. Mountain time, attorney Deborah Ferguson will argue for the tribe; Deputy Attorney General Brian Kane will argue for Denney; and former Idaho Attorney General David Leroy will argue on behalf of his client, Coeur d’Alene Racing. The arguments will be streamed online; you can watch live here.
Prior to this morning’s arguments, two of the parties submitted supplemental authorities to add to their earlier briefing. Ferguson submitted a copy of an Aug. 6, 2015 Supreme Judicial Court of Maine decision, which held that 65 vetoes issued by that state’s governor but not returned to lawmakers until after the constitutional deadline were invalid, and the bills all became law without his signature. Maine’s governor had argued that the Legislature was in recess, so it had prevented him from returning the bills within the time limit; the court disagreed, and said the bills could have been returned at any time, as many had been in past years.
Idaho law also includes a statutory provision laying out procedures for returning a vetoed bill to the Legislature when it’s temporarily not in session; it must be returned, and then a communication sent when the Legislature is back in session noting the date and time of the earlier return. All sides acknowledge that didn’t occur with SB 1011. Leroy argued in briefs that the Idaho law isn’t binding.
Leroy also submitted a supplemental authority this morning: A 1914 Idaho Supreme Court case that held that a bill regarding drainage districts had properly passed despite questions raised about official House journal entries about proceedings on the bill.
Here’s a link to my July story at spokesman.com examining the arguments laid out by the various parties in their briefs.