RONALD M. NATE; HEATHER SCOTT; SAGE DIXON; VITO BARBIERI; ERIC REDMAN; RON MENDIVE; MIKE KINGSLEY; THYRA STEVENSON; PRISCILLA GIDDINGS; TERRY GESTRIN; DOROTHY MOON; RYAN KERBY; JUDY BOYLE; GREG CHANEY; BRENT CRANE; LYNN LUKER; JAMES HOLTZCLAW; STEVEN HARRIS; THOMAS DAYLEY; JOHN VANDER WOUDE; CHRISTY ZITO; JEFF THOMPSON; BRYAN ZOLLINGER; and KAREY HANKS, House Representatives; and STEVE VICK; MARY SOUZA; DAN FOREMAN; STEVEN THAYN; CLIFFORD BAYER; LORI DEN HARTOG, Senators, Petitioners,
LAWERENCE DENNEY, Secretary of State of the State of Idaho, in his official capacity, Respondent, and C.L. "BUTCH" OTTER, Governor of the State of Idaho, in his official capacity, Intervenor-Respondent.
Opinion No. 91
proceeding in the Idaho Supreme Court seeking a writ of
writ of mandate is denied.
D. Smith; Smith, Driscoll & Associates, PLLC; Idaho
Falls, argued for petitioners.
P. Kane, Deputy Attorney General, Boise, argued for
respondent Secretary of State Denney.
F. Hensley, Boise, argued for respondent Governor Otter.
an original action seeking a writ of mandamus compelling the
Secretary of State to certify 2017 House Bill No. 67 as law
because the Governor did not veto the bill and return it to
the Secretary of State within ten days (excluding Sundays)
after the legislature adjourned. We overrule Cenarrusa v.
Andrus, 99 Idaho 404, 582 P.2d 1082 (1978), but hold
that all parties are misconstruing Article IV, section 10, of
the Idaho Constitution, and we deny the writ of mandate.
facts are undisputed. House Bill No. 67 passed the House on
February 2, 2017, and it was transmitted to the Senate. The
bill was amended twice in the Senate, and it passed the
Senate, as amended, on March 22, 2017, and was returned to
the House. As amended by the Senate, the bill passed the
House on March 27, 2017. The bill exempted from the state
sales tax the sale of food, as defined in the bill, sold for
human consumption. The legislature adjourned sine
die on March 29, 2017 at 12:00 p.m., and the bill was
delivered to the Governor at 12:05 p.m. on March 31, 2017.
The Governor vetoed the bill and delivered it to the
Secretary of State on April 11, 2017. Because of the veto,
the Secretary of State thereafter refused to certify House
Bill No. 67 as law.
April 19, 2017, the Petitioners filed in this Court a
verified petition for a writ of mandate seeking to compel the
Secretary of State to certify House Bill No. 67 as law on the
ground that the Governor did not veto the bill and deliver it
to the Secretary of State within the time period required by
Article IV, section 10, of the Idaho Constitution. The
Petitioners are members of the House of Representatives and
of the Senate. The Governor petitioned to intervene in this
proceeding, and this Court granted that request.
Court has original jurisdiction to issue writs of mandamus.
Idaho Const. art. V, § 9. The Governor argues that the
Petitioners do not have standing to bring this proceeding.
"[T]he origin of Idaho's standing is a self-imposed
constraint adopted from federal practice, as there is no
'case or controversy' clause or an analogous
provision in the Idaho Constitution as there is in the United
States Constitution." Coeur d'Alene Tribe v.
Denney, 161 Idaho 508, 513, 387 P.3d 761, 766 (2015).
Based upon decisions of the United States Supreme Court, we
have stated the test for standing as follows:
To satisfy the requirement of standing, litigants generally
must allege or demonstrate an injury in fact and a
substantial likelihood that the judicial relief requested
will prevent or redress the claimed injury. The injury must
be distinct and palpable and not be one suffered alike by all
citizens in the jurisdiction. There must also be a fairly
traceable causal connection between the claimed injury and
the challenged conduct. An interest, as a concerned citizen,
in seeing that the government abides by the law does not
Troutner v. Kempthorne, 142 Idaho 389, 391, 128 P.3d
926, 928 (2006) (citations omitted) (internal quotation marks
Governor argues that Petitioners do not have standing because
they have not alleged that they suffered a concrete injury,
but at most only have a generalized grievance. In making this
argument, the Governor fails to mention that the Petitioners
are members of the House of Representatives and the Senate
who voted in favor of House Bill No. 67. In determining that
the Tribe should be able to bring the mandamus action in
Coeur d'Alene Tribe, a case also challenging the
Governor's veto, we stated:
Neither the members of the Senate, the Governor, nor the
Secretary of State appear ready or willing to challenge the
constitutionality of the Governor's purported veto or of
the Senate's actions in this case. Thus, if the Tribe
could not bring this writ, there would be no one to enforce
the important constitutional provisions involved in this case
or to ensure that the integrity of the law-making process is
161 Idaho at 514, 387 P.3d at 767.
case, members of the legislature are willing to challenge the
constitutionality of the Governor's veto in order to
ensure the integrity of the law-making process is upheld. As
we implicitly recognized in Coeur d'Alene Tribe,
they have standing to challenge whether the Governor's
veto of a bill they voted to pass was timely under the
Constitution. The injury required for standing does not have
to be economic. Van Valkenburgh v. Citizens for Term
Limits, 135 Idaho 121, 125, 15 P.3d 1129, 1133 (2000)
(voters who opposed a ballot legend had standing to challenge
it). If Petitioners are successful in their challenge, the
bill will become law. Their interest in challenging the veto
is as valid as the Governor's interest in upholding it.
Therefore, we hold that the Petitioners have standing to
challenge the veto.
Does the Idaho Constitution Require?
issue in this case is the construction of Article IV, section
10, of the Idaho Constitution, which provides:
Every bill passed by the legislature shall, before it becomes
a law, be presented to the governor. If he approve, he shall
sign it, and thereupon it shall become a law; but if he do
not approve, he shall return it with his objections to the
house in which it originated, which house shall enter the
objections at large upon its journals and proceed to
reconsider the bill. If then two-thirds (2/3) of the members
present agree to pass the same, it shall be sent, together
with the objections, to the other house, by which it shall
likewise be reconsidered: and if approved by two-thirds (2/3)
of the members present in that house, it shall become a law,
notwithstanding the objections of the governor. In all such
cases the vote of each house shall be determined by yeas and
nays, to be entered on the journal. Any bill which shall not
be returned by the governor to the legislature within five
(5) days (Sundays excepted) after it shall have been
presented to him, shall become a law in like manner as if he
had signed it, unless the legislature shall, by adjournment,
prevent its return, in which case it shall be filed, with his
objections, in the office of the secretary of state within
ten (10) days after such adjournment (Sundays excepted) or
become a law.
Court has not yet construed Article IV, section 10, as a
whole. In Katerndahl v. Daugherty, 30 Idaho 356, 164
P. 1017 (1917); State ex rel. Brassey v. Hanson, 81
Idaho 403, 342 P.2d 706 (1959); and Worthen v.
State, 96 Idaho 175, 525 P.2d 957 (1974), this Court
applied the requirement that every bill passed by the
legislature must be presented to the governor before it
becomes law to situations in which an amendment approved by
both houses was unintentionally omitted in the bill presented
to the governor. This Court held that the omitted amendment
did not become law, except in the Hanson case, where
the governor's correspondence to the speaker of the house
showed that the governor knew the version approved by both
houses and intended to approve it. In Coeur d'Alene
Tribe v. Denney, 161 Idaho 508, 511-32, 387 P.3d 761,
764-85 (2015), we held that "five days (Sundays
excepted)" meant what it said, and in Cenarrusa v.
Andrus, 99 Idaho 404, 582 P.2d 1082 (1978), a
three-justice majority held that "ten days after such
adjournment (Sundays excepted)" did not mean what it
said, but instead meant "ten days after presentment
what the framers of our Constitution intended when they
drafted Article IV, section 10, will show the error made by
the three-judge majority in Cenarrusa. That inquiry
must start with the law that was in effect when the
Constitution was drafted. "The Constitution should
receive a reasonable construction, and should be interpreted
in such a way as to give it practical effect according to the
intention of the body that framed it and the people who
adopted it." Grice v. Clearwater Timber Co., 20
Idaho 70, 76-77, 117 P. 112, 114 (1911). "When laws are
made by a popular government, that is to say, 'a
government of the people, by the people, and for the people,
' we may safely assume that words in a statute or a
constitution are used in a sense in which the people who made
the statute or constitution understood them." Adams
v. Lansdon, 18 Idaho 483, 504, 110 P. 280, 287 (1910)
(quoting Leonard v. Commonwealth, 4 A. 220, 225
(Penn. 1886). "It is a well-established rule that a
state legislature has plenary power over all subjects of
legislation not prohibited by the federal or state
constitution, " and "[p]rohibitions are either
express or implied." Wilson v. Perrault, 6
Idaho 178, 180, 54 P. 617, 617 (1898).
6 of the Organic Act of the Territory of Idaho dealt with the
same subject as does Article IV, section 10. Section 6 stated
And be it further enacted, That the legislative
power of the Territory shall extend to all rightful subjects
of legislation consistent with the Constitution of the United
States and the provisions of this act; but no law shall be
passed interfering with the primary disposal of the soil; no
tax shall be imposed upon the property of the United States,
nor shall the lands or other property of non-residents be
taxed higher than the lands or other property of residents.
Every bill which shall have passed the council and house of
representatives of the said Territory shall, before it
becomes a law, be presented to the governor of the Territory;
if he approve, he shall sign it; but if not, he shall return
it, with his objections, to the house in which it originated,
who shall enter the objections at large upon their journal
and proceed to reconsider it. If, after such reconsideration,
two thirds of that house shall agree to pass the bill, it
shall be sent, together with the objections, to the other
house, by which it shall likewise be reconsidered; and if
approved by two thirds of that house, it shall become a law.
But in all such cases the votes of both houses shall be
determined by yeas and nays, to be entered on the journal of
each house respectively. If any bill shall not be returned by
the governor within three days (Sunday excepted) after it
shall have been presented to him the same shall be a law in