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Wednesday, December 11, 2019  Spokane, Washington  Est. May 19, 1883
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Eye On Boise

Davis: Senate leaders now have no reason to intervene in grocery tax case, with Senate-House issue off the table

Senate Majority Leader Bart Davis, R-Idaho Falls, says the Senate leadership won’t be offering arguments on the validity of Gov. Butch Otter’s veto of the grocery tax repeal bill, now that the Idaho Supreme Court has ruled that an issue Otter brought up – whether a tax bill is constitutional if its language originates through a Senate amendment – isn’t on the table. “If that’s the position of the court, at this point in time, then there’s no reason for us to engage further as petitioners, and we’ll allow the parties to proceed and watch with interest the case,” said Davis, an attorney.

The court, in an order made public this afternoon but dated Friday, said that constitutionality issue is not “ripe” because the bill in question hasn’t become law; you can read my full story here at The bill, HB 67a, started in the House as an income tax cut measure. The Senate amended it to replace everything in it with a grocery tax repeal instead. The House then passed the Senate-amended bill, but Gov. Butch Otter vetoed it. Thirty state lawmakers sued, charging that the governor’s veto was invalid because it missed a 10-day deadline. That question turns on when that 10-day clock starts ticking, whether it’s when lawmakers adjourn, as the Idaho Constitution says, or when the bill is presented to the governor, as the Idaho Supreme Court held in a 1978 case.

The constitutionality issue deals with the Idaho Constitution’s requirement that tax bills originate in the House. Gov. Butch Otter, in his legal arguments filed in the case, said the Senate didn’t just amend the House bill, it “radiator capped” it – a phrase that utilizes the metaphor of the bill as a vehicle pulled into a shop for service, at which point the mechanic removes the radiator cap, drives a different vehicle in, and screws the cap down on the new vehicle in its place. In a legislative “radiator capping,” the only thing left of the original bill is the bill number – the radiator cap.

“The Senate’s action resulted in entirely new legislation, which did not originate in the House of Representatives,” the governor’s attorneys, David Hensley and Cally Younger, wrote in legal arguments submitted to the court on Friday.

 “The court’s basically saying that until the court deals with the one issue, you don’t know if the other issue is even going to be relevant,” Davis said. “They’re saying, look, we’re not going to get out in the weeds and pick up an issue that may or may not be relevant or ripe until we’ve dealt with the other issue.”

That’s because if the court upholds the veto, there’s no law that could be unconstitutional – the bill would be vetoed and dead. If the court overturns the veto, that question then could become relevant. Davis said he didn’t think the court was signaling that it was leaning either way.

“It’s a thoughtful way to narrow the issues now,” he said. “But where perhaps it has some relevance, is it says to whoever is going to argue this case on behalf of the governor, ‘Don’t waste your time making that argument, because that’s not the issue we want to hear about on June 15.’”

That’s the date the court has set to hear oral arguments. Those offering arguments will include attorneys for the 30 lawmakers who sued; for Secretary of State Lawerence Denney, the original target of the lawsuit in his official capacity; and for Otter.

In Otter’s 34-page brief submitted to the court on Friday, just three pages were devoted to the constitutionality argument. Otter also argued that the lawmakers lack standing to sue; that overturning the veto would upset the balance of power between the executive and legislative branches; that there’s no legal basis to overturn the 1978 court ruling; and that if the court did decide to overturn that decision, it should do so only for future vetoes, letting this one stand.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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