Here's my full story from today's Spokesman-Review:
By Betsy Z. Russell
BOISE – When Idaho’s legislative and executive branches face off in court on June 15, much will be at stake.
First, there’s the fate of the state’s unpopular 6 percent sales tax on groceries. If the group of 30 lawmakers who sued wins the case, the tax would go away, following a two-year phaseout. That would cost state coffers an estimated $79 million a year.
And then there’s the role of the courts as well as the balance of powers between Idaho’s legislative and executive branches – something that’s been debated since the state was formed and that’s recently been tipping toward the legislative side. The lawsuit is a direct attack on a 1978 Idaho Supreme Court ruling that’s stood unchallenged for nearly 40 years, charging that the state’s highest court overstepped its bounds and tried to “amend the Idaho Constitution by judicial fiat.”
Here’s a look at how the arguments are shaping up in advance of the showdown before the five-member Idaho Supreme Court.
The lawmakers’ arguments
Thirty state lawmakers, led by outspoken ultra-conservative Rep. Ron Nate, R-Rexburg, filed suit, charging that Gov. Butch Otter’s veto of the bill to repeal the sales tax on groceries missed a deadline and therefore isn’t valid, meaning the bill should become law without his signature. The Legislature passed the bill by big margins – 51-19 in the House and 25-10 in the Senate – on the final day of this year’s legislative session, March 29. The bill was delivered to Otter two days later, on March 31. He vetoed it on April 11.
The lawmakers argue that the “plain meaning of the Idaho Constitution” is that once lawmakers have adjourned, the governor has 10 days after that adjournment date to take action on a bill, or it becomes law without his signature. But in a 1978 case, Cenarrusa v. Andrus, the Idaho Supreme Court ruled otherwise, addressing the exact same question. Then-Secretary of State Pete Cenarrusa challenged a veto by Gov. Cecil Andrus that came after the 10-day limit. The court, in a 3-2 ruling, 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.
“The central issue in this case strikes at the core of whether the Idaho Constitution means what it says,” the lawmakers’ attorney, Bryan Smith of Idaho Falls, wrote in arguments submitted to the court, “or whether just three people in the judicial branch can bypass the amendment process and amend the Idaho Constitution by judicial fiat.”
He adds, “a majority of this court did not interpret, but amended the Idaho Constitution.”
The lawmakers sued Idaho Secretary of State Lawerence Denney, arguing that he shouldn’t have accepted the veto as valid, and instead should have filed the bill as a law. They’re also asking the court to award them attorney’s fees and costs.
Denney argues that he had no choice but to follow the 1978 Idaho Supreme Court ruling. “The Secretary of State has no authority to ignore a ruling by the Idaho Supreme Court,” his lawyer, Deputy Attorney General Brian Kane, wrote in arguments submitted to the court. “Cenarrusa is the law of Idaho, and the secretary has undisputedly acted in full compliance with it.”
Kane writes that the lawmakers’ arguments suggest one branch of government can refuse to comply with a court order. “This theory has been uniformly rejected by courts,” he writes. “The principle that neither the Legislature nor the executive can regulate or alter in any way this Court’s jurisdiction is basic to the doctrine of separation of powers.”
Denney didn’t offer arguments on the validity of the veto, instead deferring to and concurring in arguments submitted by Otter. But he did argue that the lawmakers have filed the wrong type of lawsuit, asking for a writ of mandamus directly from the high court ordering Denney to certify the bill as law. What they really want, Kane writes, is to overturn the 1978 court decision; to do that, they should have filed a lawsuit in district court that could go up to the Supreme Court on appeal. That’s how Cenarrusa v. Andrus reached the high court.
Otter begins by arguing that there’s a legal flaw in the lawmakers’ case: Only Nate submitted documents to verify the petition, so the other 29 lawmakers should be dismissed from the case. Then, he argues that Nate doesn’t have standing to sue; Nate claims standing as an Idaho citizen who buys groceries, and as a lawmaker whose votes in the House were “disenfranchised” by the veto. “He is unhappy with the outcome of the political process, namely the governor vetoing the bill,” Otter attorney David Hensley writes. “Frustration does not establish a legal right nor justify the relief sought from the secretary of state. … Contrary to the petitioner’s assertion, the secretary’s legal duty was to follow the law, not ignore it.”
Otter argues that that there’s no legal basis to overturn the 1978 court ruling.
“Cenarrusa is settled law,” Hensley writes, saying the lawmakers are trying to “rehash old arguments.”
“The petitioner raises the exact same arguments advanced by Secretary Cenarrusa almost 40 years ago. He adds nothing new or different, in terms of legal theories, from those considered by the Cenarrusa court..”
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.” Henley writes that this case doesn’t meet that standard. “Petitioner’s dislike of Cenarrusa does not make it ‘manifestly wrong,’ nor is it enough to satisfy the rigorous test to reverse longstanding precedent.”
Otter also argued that the bill itself was unconstitutional, under a clause in the Idaho Constitution that requires tax bills to originate in the House. The grocery tax bill, HB 67a, started in the House as an income tax cut bill, but the Senate amended it, transforming it completely into a grocery tax repeal bill. That’s what prompted Otter to question whether the measure really originated in the House. However, the Idaho Supreme Court last week issued an order limiting the issues in the case, at least for now, to the validity of the veto – and foreclosing any arguments on the House-Senate constitutional question. If Denney and Otter win, that question would be moot. If Nate wins, it could come up again.
Otter also argues that overturning the veto would upset the balance of power between the executive and legislative branches. “Without the holding in Cenarrusa, the governor would be subject to the whims of the Legislature and its process for presenting legislation,” Hensley writes.
And he proposes that if the court did decide to overturn its 1978 decision, it should do so only for future vetoes, letting this one stand. “The governor was following legal precedent. To apply the decision retroactively would be saying he made a mistake in doing so, which is simply not true,” Hensley writes.
Otter also requests the court to award him legal fees and costs.
Just two years ago, the Idaho Supreme Court heard another case about a missed veto deadline. In that case, the Coeur d’Alene Tribe challenged Otter’s veto of legislation to repeal legal authorization for “instant racing” gambling machines. In that case, the Legislature hadn’t adjourned for the year, so Otter had just five days to sign or veto the bill or have it become law without his signature. Otter said he vetoed the bill within five days, but couldn’t get it back to lawmakers for another two days because they had temporarily adjourned for a long Easter weekend. The court rejected his argument, with Chief Justice Roger Burdick writing, “This court has insisted upon strict adherence to the procedures outlined in our Constitution for enacting laws and in exercising the veto power.”
The court ordered Denney to certify the bill as law, and instant racing machines were banned. Les Bois Park, a major horse racing track in Boise, then shut down, saying without the profitable gambling machines, it couldn’t afford to continue to run live horse racing.
Although that case didn’t deal with post-adjournment vetoes, in a concurring opinion, two justices, Daniel Eismann and Warren Jones, expressed concern about the 1978 Cenarrusa v. Andrus decision, with Eismann writing, “Unfortunately, a majority of the Cenarrusa court chose to disregard the plain meaning of the Idaho Constitution in order to uphold a veto under a hypothetical set of facts that were unrelated to the facts of the case.”
In addition to the 1978 Cenarrusa v. Andrus decision, some of the arguments in the case have pointed to an Idaho Supreme Court decision issued last fall in a medical malpractice case, Hoffer v. Shappard. That 3-2 ruling overturned a longstanding court rule on when attorney fees should be awarded. Justice Joel Horton, writing for the majority, held that the 1979 court rule went beyond what was required in a 1976 law passed by the Legislature on attorney fee awards. “This court is without authority to amend laws enacted by the Legislature because we think them unwise,” Horton wrote. Justices Eismann and Jim Jones joined the majority; Justices Warren Jones and Burdick dissented, saying the ruling would “overturn a vast body of law.”
The ruling set Idaho on track for a new “loser-pays” attorney fee system that sent the state’s legal community into an uproar, but the justices set a March effective date for the change, giving the Legislature an opportunity to address it first. The Legislature changed the law to match the 1979 court rule, so in the end nothing changed.
That case involved a state law, not a provision of the Constitution. Since last fall, Justice Jim Jones, who was in the majority, has been replaced by new Justice Robyn Brody.
The Idaho Supreme Court will hear arguments from all sides on June 15 – and justices will question the attorneys – and then take the matter under advisement. The court typically issues its decisions in writing weeks or months after the arguments, but this case could see a speedier resolution. In the 2015 case in which the justices found Otter’s veto of the instant racing gambling machine ban invalid, the justices heard arguments on Aug. 11, and issued their ruling just under a month later, on Sept. 10.
If the lawmakers lose, there’s nothing to stop them from passing the same bill again next year, and doing so earlier in their session, so that if Otter vetoed it again, they’d have an opportunity for an override vote. Overriding a veto takes a two-thirds vote in each house of the Legislature; the margin of passage for HB 67a this year exceeded that. The measure also could come up in a future year, after Otter retires. All four of the major announced candidates for governor in 2018 have expressed support for repealing the grocery tax.
Arguments before the Idaho Supreme Court are streamed live online, through Idaho Public Television’s “InSession” service. You can watch live at idahoptv.org/insession/; the arguments start at 11:10 a.m. Mountain time, 10:10 a.m. Pacific time, on June 15.
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