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By Betsy Z. Russell

BOISE – Four Idaho Supreme Court justices had sharp questions for both sides, as they heard arguments Thursday in a court challenge to Gov. Butch Otter’s veto of legislation repealing the state’s sales tax on groceries.

Bryan Smith, attorney for a group of 30 legislators who wanted the tax repealed and sued to invalidate the veto, came away confident. “I think they were the questions that should be asked,” he said. “I think they try to be fair. I think there’s a very high probability that they’ll reverse Cenarrusa, and certainly if they follow the plain, clear, unambiguous language of the Constitution, they’ll do that.”

Cenarrusa is the 1978 Idaho Supreme Court ruling, in Andrus v. Cenarrusa, that 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 has gone unchallenged for 39 years, but last year, in a different case, two of the current justices signed a concurring opinion strongly suggesting they thought the Cenarrusa decision was wrong.

At issue: Whether the wording of the Idaho Constitution really envisioned starting that 10-day time clock ticking when the governor gets the bill, or whether it starts ticking the moment the legislative session adjourns.

By the former standard, the veto was valid. By the latter, it came too late – meaning the bill would become law without the governor’s signature.

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.”

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.

The case, argued before a courtroom filled to capacity while overflow crowds watched a live stream, involves more than just the 6 percent sales tax on groceries, which in itself if a big issue. If repealed over two years as envisioned by the bill, the state would collect $80 million a year less in taxes, and Idahoans would pay 6 percent less for their groceries. But larger issues raised include the powers of all three branches of Idaho’s state government, from lawmakers exercising legislative powers, to the executive branch as a check and balance, to the courts and their role.

The Cenarrusa decision held that if the clock starts ticking at adjournment, lawmakers could just delay delivering a bill to the governor until 10 days have passed – eliminating his ability to veto it.

During Thursday’s arguments, Chief Justice Roger Burdick said that nearly happened in 1967, when lawmakers delivered a bill to then-Gov. Don Samuelson on the 9th day after they’d adjourned. He swiftly vetoed it. But Burdick also noted that governors often receive dozens or even hundreds of bills after lawmakers adjourn, thanks to the end-of-session rush of decisions; that’s why the Constitution guarantees the governor time to review them and make his decision.

The justices had numerous questions for both sides, and while some sounded highly skeptical of Smith’s arguments, others brought up the concurring opinion from a year ago and the need to look at the Constitution’s precise words. Justice Robyn Brody asked Brian Kane, who represented Idaho Secretary of State Lawerence Denney, if in light of that concurrence, “Don’t you say ‘wait a minute, we’ve got a signal here that maybe Cenarrusa is in trouble,’ and you play it safe, you give safe advice, which is ‘let’s play it from the adjournment of the Legislature rather than at presentment?’ Isn’t that what we as lawyers do?”

Kane responded, “Cenarrusa is still the law of the land.” The Idaho Supreme Court has held that it must follow “controlling precedent unless that precedent is manifestly wrong, has proven over time to be unjust or unwise, or overruling that precedent is necessary to vindicate plain, obvious principles of law and remedy continued injustice.”

Smith told the court, “They’re saying Cenarrusa is law. I’m saying … it’s not the law, it’s an interpretation of the law. This court can now look at the law.” He said if Samuelson or any other governor had a problem with “gamesmanship” by lawmakers to evade vetoes, he could have asked the Legislature to pass an amendment to the Constitution and submit it to voters for approval.

However, Horton questioned why lawmakers bent on gamesmanship would vote by a two-thirds margin, which is what a constitutional amendment requires, to prohibit their own games. Smith said they’d get voted out of office if they behaved that way.

Kane and Hensley argued that the case should be dismissed on procedural grounds, but Horton commented, “Isn’t this really exalting form over substance?”

Horton also remarked at one point, while questioning Hensley, that he wondered “as a practical matter how wise it is to rely on a 3-2 decision authored by Justice Bistline,” referring to Cenarrusa, when the current court has “consistently” taken a conservative approach to interpreting constitutional provisions, focusing on their plain words.

Justice Stephen Bistline, author of the Cenarrusa decision, was an appointee of Democratic Gov. Cecil Andrus; known as an outspoken civil libertarian, he retired from the court in 1994.

Asked after the arguments about the questions he fielded from the justices, Hensley said, “I thought it was fair. I thought it was very insightful. I appreciated the questions and the discussion with the court.”

Surprisingly, just four of the five justices were present for the arguments; Justice Daniel Eismann, an outspoken conservative, was out sick. He watched the live stream of the arguments and will fully participate in the decision; he was the author of the concurrence last year that was critical of Cenarrusa.

A year ago, Eismann engaged in extended, angry exchanges with Kane, in the same case in which he wrote the concurrence.

Hensley said Eismann’s absence didn’t change the way he presented Otter’s arguments. “I think we presented the case as we had anticipated and planned,” he said, “and I hope he’s doing well, and I hope he gets better.”

After hearing the arguments, the court took the case under advisement, and will issue its written ruling in the coming weeks.

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