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Eye On Boise

Lawmakers file reply in grocery tax case, charge that ‘78 court decision amended Constitution ‘by judicial fiat’

Attorneys for state Rep. Ron Nate, R-Rexburg, and 29 other lawmakers who are suing to overturn Gov. Butch Otter’s veto of legislation to repeal the state’s 6 percent sales tax on groceries, filed their reply brief with the Idaho Supreme Court today, in advance of the June 15 oral arguments in the case.

In the reply, attorney Bryan Smith charges that the Idaho Supreme Court in its 1978 Cenarrusa v. Andrus decision “amended, rather than interpreted,” the Idaho Constitution, by ruling that once a legislative session has adjourned, governors have 10 days after they get a bill to sign or veto it, rather than 10 days after lawmakers adjourn. Smith accuses the Cenarrusa court of “accomplishing by judicial fiat what can be accomplished only by following the specific amendment process clearly delineated in the Idaho Constitution itself.”

“A majority of this court does not possess this power,” he wrote.

The court in 1978 held that unless the 10-day veto deadline starts from the time the governor receives the bill, lawmakers could negate the governor’s constitutional authority to veto a bill by simply waiting until after the deadline to deliver it to him. Then there’d be no way a governor could veto a bill.

Otter issued his veto within 10 days of receiving it, but lawmakers didn't deliver it to him until two days after the session adjourned on March 29. By their count, he was too late, and the bill became law without his signature.

Otter, who earlier submitted his own 34-page legal brief in the case, 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. Secretary of State Lawerence Denney, the direct target of the lawsuit, submitted a brief arguing that he was required by law to follow the '78 ruling.

“Governor Otter should take his arguments to amend the Constitution to the people, not this court,” Smith wrote, calling Otter’s arguments “proper for a political campaign directed at the Legislature and the people rather than a legal argument directed at this court that lacks the power to amend the Idaho Constitution.”

Smith also attached a chart compiled by Idaho Freedom Foundation Vice President Fred Birnbaum, based on sine die reports from the Legislature since 2007, listing 16 post-session vetoes that Otter has issued since he’s been governor. Of those, just three, including the grocery tax repeal veto, were more than 10 days after adjournment. He cited that data to suggest that Otter usually follows the lawmakers’ favored interpretation of the deadline, and overturning the 1978 decision wouldn’t cause a flood of litigation over other past vetoes.

Smith argued that the 1978 Idaho Supreme Court decision and the wording of the Idaho Constitution are essentially two laws that conflict, and that the court must discover and apply the "true law."

“On balance, the people’s right to have Article IV, Section 10 of the Idaho Constitution enforced as the supreme law of the land outweighs Gov. Otter’s claim to rely on erroneous case law,” Smith wrote.




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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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