In the state’s response to the Coeur d’Alene Tribe’s instant racing challenge today, Idaho Secretary of State Lawerence Denney says he has no opinion on whether Gov. Butch Otter’s attempted veto of the instant racing repeal bill, SB 1011, was valid. “He takes no position concerning whether S. 1011 has become law,” wrote Assistant Attorney General Brian Kane.
While saying Denney will comply with any order the court issues, the state argues that Denney has no role in the process of a bill becoming law, unless either the governor or the Legislature actively sends him a bill to certify into law – or a court orders him to act. “No representative of the Senate, including the President of the Senate, the President Pro Tempore, the Minority Leader, or the Secretary of the Senate attempted to file S. 1011 with the Office of the Secretary of State for certification as law without signature,” Denney said in a sworn affidavit.
Instead, the state’s response says, the bill was sent to his office by the Senate secretary on April 28 along with all other bills that didn’t become law this session. Kane argues that it was up to the Senate to ask Denney to certify the law, and the Senate’s not named in the lawsuit, in which the tribe is suing Denney.
The state’s argument goes like this: If the governor misses a deadline to veto a bill but then tries to do so after the deadline, it’s up to the house where the bill originated – in this case, the Senate – to “determine whether the veto is timely and, based upon that determination, either (with a timely veto) proceed to consideration of an override or (with an untimely veto) process the bill as it would had the governor approved the Legislature.”
The Senate president pro-tem, minority leader and secretary all submitted statements that were read into the official journal of the Senate stating that the veto wasn’t received by the deadline. But the Senate then took a veto override vote anyway; it failed, achieving a majority but not the required two-thirds supermajority.
“If the Senate erred in not transmitting S. 1011 to the Secretary as it would have transmitted any other approved legislation, the remedy lies in directing that chamber to make the appropriate transmission,” the state response says. The state argues that ordering Denney to certify the bill as law would constitute “executive branch interference with the legislative process,” and violate “well settled separation of powers principles.”
“The Senate could have deemed the veto untimely and delivered the bill to the Secretary of State for certification but chose not to,” Kane wrote. “Simply put, it is up to the initiating chamber of the Legislature, not the Secretary, to determine whether a bill has been ‘authenticated.’ … It is then for the Judiciary to resolve any claims that the originating house erred.”
While making the argument that the remedy lies with court direction to the Senate rather than to the Secretary of State, the state’s response also suggests courts may be unable to give such direction to a house of the Legislature because of the separation of powers. “A second question beyond this threshold question is whether the originating house’s determination that a veto was or was not timely returned is judicially reviewable,” Kane wrote in a footnote to the argument. That question “is not presented” in this case, he wrote, because Denney is the only one being sued. You can read the state’s full response here; it runs 45 pages.