Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nate v. Denney

Supreme Court of Idaho

July 18, 2017

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,
v.
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.

         2017 Opinion No. 91

         Original proceeding in the Idaho Supreme Court seeking a writ of mandate.

         The writ of mandate is denied.

          Bryan D. Smith; Smith, Driscoll & Associates, PLLC; Idaho Falls, argued for petitioners.

          Brian P. Kane, Deputy Attorney General, Boise, argued for respondent Secretary of State Denney.

          David F. Hensley, Boise, argued for respondent Governor Otter.

          EISMANN, Justice.

         This is 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.

         I.

         Factual Background.

         The 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.

         On 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.

         II.

         Analysis.

         This 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 confer standing.

Troutner v. Kempthorne, 142 Idaho 389, 391, 128 P.3d 926, 928 (2006) (citations omitted) (internal quotation marks omitted).

         The 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 upheld.

161 Idaho at 514, 387 P.3d at 767.

         In this 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.

         III.

         What Does the Idaho Constitution Require?

         The 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.

         This 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 (Sundays excepted)."

         Examining 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).

         Section 6 of the Organic Act of the Territory of Idaho dealt with the same subject as does Article IV, section 10. Section 6 stated as follows:

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 like ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.