A constitutional question raised in today’s Idaho Supreme Court filing by the Coeur d’Alene Tribe is whether the state is essentially taking the position that Idaho has a “pocket veto” under the Idaho Constitution, allowing the governor to veto a bill without actually taking any action on it. Idaho’s never had that, but it does exist at the federal level.

According to the U.S. Senate’s reference website, a “pocket veto” occurs at the federal level when the president, who normally has 10 days to review a measure passed by Congress, has not signed the bill after 10 days – but during that 10-day period, Congress has adjourned. If Congress were still in session, the bill would become law without the president’s signature. But under the pocket veto, “If Congress adjourns during the 10-day period, the bill does not become law.”

When the tribe first requested Secretary of State Lawerence Denney to certify SB 1011, the instant racing repeal bill, into law, he refused, saying he didn’t believe he had that power.  “I don’t personally think that we have the authority to do that,” he said in early May, acknowledging that a court fight was likely. “I think the court is probably the appropriate place to have those questions answered,” he said.

Denney said then that he’d consulted with the Idaho Attorney General’s office. “The Constitution is silent on the duties and the code says it has to be authenticated by the governor, which certainly it was not,” he said.

He was referring to Idaho Code 67-505, which states, “BILLS NOT RETURNED. Every bill which has passed both houses of the legislature, and has not been returned by the governor within five (5) days, thereby becoming a law, is authenticated by the governor causing the fact to be certified thereon by the secretary of state.”

The tribe’s legal filing says, “The Secretary contends he need not comply because the governor’s ‘authentication’ is missing, meaning, apparently, that the Secretary does not believe that he has to certify a law or deposit such law with the laws in his office until the governor further authenticates a law in some unspecified way.” But the tribe argues that reading of the code section is “incorrect as a matter of law,” saying, “The very act of a bill passing both houses of the Legislature coupled with the governor’s failure to return the bill within five days IS the ‘authentication’ by the governor. In other words, a passed bill is self-authenticated when those events have occurred. This Court has held that nothing more is required.”

Attorney Deborah Ferguson wrote in the tribe’s legal arguments, “To read this into the statute would in effect enlarge the governor’s veto powers considerably, as he could refuse to provide the authentication for the bill to become law. This would allow the governor a pocket veto, which this court has explicitly stated is not allowed under the Idaho Constitution.” She cited Cenarrusa v. Andrus, a 1978 Idaho Supreme Court decision.

The Idaho Constitution, in Article 4, Section 10, says Idaho governors have five days, not counting Sundays, to act on a bill while the Legislature is in session or it becomes law without the governor’s signature, “in like manner as if he had signed it.” If the Legislature has adjourned sine die – adjourned for the year, thus preventing the governor from returning the bill to them with a veto message – the governor has 10 days, not counting Sundays, to act before the bill becomes law without his signature.

Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said his office just received a copy of the filing "late this morning and we haven’t had a chance to go through it yet. So we don’t have anything to say until we get to that point.” Asked about the “pocket veto” question, Dvorak said, “We’ll have to read the briefs and response and go from there. We can’t speculate right now on that.”

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