This year, the Idaho Legislature voted to repeal the state tax on groceries. The governor vetoed the repeal. Then a group of lawmakers challenged the veto in court, saying the governor took too long to act.
Seems pretty straightforward, right? If only. In fact, the legal challenge to Gov. Butch Otter’s veto, which the state Supreme Court kicked back to the plaintiffs to correct procedural errors Wednesday, is more involved, and has more riding on it, than might appear.
At stake, beyond whether Idahoans will or won’t continue to pay six extra pennies on every dollar of their food bill, is the credibility of the state’s highest court, the predictability and certainty of legal precedent, and the balance of power between two of the three branches of government, as determined by the third.
Here’s an overview, including thoughts from former Supreme Court Chief Justice Jim Jones on what’s before the court and how it might act.
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Q: What’s at stake?
In raw numbers, $80 million in annual state sales tax revenue – which equates to about $47 for every resident. Idaho currently offsets the 6 percent sales tax on groceries with a $100-per-person annual credit. The Legislature voted to do away with both.
The governor vetoed the move, saying, in effect, that the state has no business throwing away that much revenue at the same time it’s spending more on education and looking to fix its crumbling roads, among other priorities — especially via a major tax policy shift that was enacted practically on a dare aimed straight at legislative leadership.
Q: What’s the issue?
This is where things start to get complicated. The legal question is seemingly narrow: Did the governor take too long to veto the bill?
The Constitution seems clear on timing: The governor has five days to act on a veto when the Legislature is still in session, and 10 days to act after legislators have adjourned for the year. The reason for more time after adjournment, based on common practice and precedent, is because of the large number of bills the Legislature typically passes in the rush to finish and the extra time the governor might need to review them.
But there’s a difference: The in-session rule starts the five-day clock ticking when the governor officially receives the approved bill from the Legislature. The term for this is “presentment.” When it comes to the 10-day post-adjournment deadline, the Constitution says only that the clock starts ticking with adjournment; it says nothing about when the governor actually gets the bill. Idaho’s governor, unlike the U.S. president, does not have the option of a so-called pocket veto. If the governor doesn’t act on a bill, it simply becomes law.
In this case, the Legislature approved the final bill and adjourned on March 29. The governor received the bill on March 31 and issued his veto on April 11. Since Sundays are excluded from the 10-day clock, he acted within the time allotted from time of presentment, but not within the 10-day period following adjournment.
Q: Seems late. Is there more to it?
There is a wrinkle: In 1978, the state Supreme Court ruled that the governor, moving to veto a bill after the Legislature had adjourned for the year, had 10 days from the time he actually received the bill. The court split 3-2, but for nearly four decades it’s been the precedent under which governors have operated.
“With such a vast number of bills presented to the governor for his consideration, it is apparent that practical necessity requires that he be given time for his examination,” the court ruled in a case brought by then-Secretary of State Pete Cenarrusa against Gov. Cecil Andrus. “If we were to hold that the governor was without power to veto a bill more than 10 days after adjournment, the legislature would be in a position to defeat at will one of the constitutionally granted powers of a separate and coequal branch of government merely by delaying presentment.”
“The whole time I operated, it was always 10 days from the time the governor received it,” said Bruce Newcomb, the former four-term House speaker who’s now director of government relations at Boise State University.
Q: What does the former chief justice think?
Jim Jones, also a former attorney general, served on the Supreme Court from 2004 until retiring as chief justice in January. He took issue with the decision in the 1978 Cenarrusa case but said the precedent is nonetheless sturdy.
“I think if there were not a precedent on the record, it would be a fairly simple thing to say that the governor’s veto was ineffective, it was a day late,” Jones said. “The question is whether the court is going to follow precedent or read the literal language of the (Idaho) Constitution.”
The court itself cited the 1978 precedent in 2015 when it ruled that the governor took too long during session to veto the Legislature’s vote to ban a type of electronic gambling.
Jones said he expects a split decision: “I think they may slightly lie toward following precedent even though they think it could be wrong.”
Could the court somehow uphold the veto but reject the precedent in Cenarrusa? “I think they have to either rule that (the veto) was in accordance with the Cenarrusa case or that the Cenarrusa case was wrong,” he said.
Newcomb agrees that there is a legitimate question that needs to be resolved, and a decision could go either way. “Anytime you get two attorneys in the room, you need a third one to break the tie,” he joked.
Q: How long until we know the outcome?
The petitioners corrected the procedural filing errors and resubmitted their challenge Thursday. Jones said the justices might remand it to a lower court for initial review, or reject it outright. In the latter case, the court might say that the 30 lawmakers bringing the case don’t have required standing as injured parties, or that they represent only a minority of the Legislature. Jones said that’s not likely, adding that he saw “a legitimate issue there to be dealt with.”
Q: Is this really something for the courts?
That’s a question asked by those who opposed the repeal and think the case is more power struggle and publicity stunt than principled stand. But two of the lawmakers challenging the veto said, in announcing the effort, that it’s not just about the majority will of the Legislature. They think the Cenarrusa case was wrongly decided.
That said, if the grocery tax appeal is so popular — it passed by comfortable majorities in both houses — and given how long it might take the court to rule, what’s to stop lawmakers from resurrecting the measure when the Legislature convenes for the 2018 session in January? That might not be so easy: Supporters of the grocery tax repeal couldn’t get their own bill introduced this year. They got it done over the objections of leadership by hijacking another bill, initially on the floor of the Senate.
Whatever the outcome, it might lead to change in how end-of-session vetoes are handled. Unlike some other states, the Idaho Legislature has no recourse to challenge a veto after legislators adjourn. Newcomb, the former speaker, said he always saw that as a problem, and lawmakers might seek to change that.
Future governors also might not wait till the last minute to veto a bill.
Q: What’s the bottom line?
Beyond how much Idahoans will pay for groceries in the future, the question goes to one of the basic functions of government – raising money to pay for public expenditures and determining sound fiscal policy to do so. The grocery tax repeal represents a major shift in tax policy that was done with little public debate or input, and it involves a lot of money.
Furthermore, this case goes to the balance of powers between the executive and legislative branches in Idaho. The part-time citizen Legislature has been flexing its muscles of late, and winning. A constitutional amendment passed in November giving lawmakers greater power over administrative agency rule-making.
The next months will show whether they’re on a winning streak or due for a change of fortune.
What the court said in 1978
Here are some excerpts from the Supreme Court decision in the 1978 case that pitted then-Secretary of State Pete Cenarrusa against Gov. Cecil Andrus:
“The purpose of granting the chief executive authority to approve or disapprove legislative matters was to enable him to prevent, as far as possible, the evils that flow from hasty and ill-considered legislation. The provision was one of the constitutional checks and balances exercised by one department of government over the other. It is a basic part of our scheme of government and is jealously guarded by the courts….”
“With such a vast number of bills presented to the governor for his consideration, it is apparent that practical necessity requires that he be given time for his examination. Any construction which reduces the 10-day period belonging to the governor or imposes a duty upon the General Assembly to present all bills before the date of adjournment, would lead to the defeat of the benefits which the constitutional provision was intended to guarantee….”
“If we were to hold that the governor was without power to veto a bill more than 10 days after adjournment, the legislature would be in a position to defeat at will one of the constitutionally granted powers of a separate and coequal branch of government merely by delaying presentment beyond the time in which the governor could act. A construction of the constitution which defeats the very purpose of allowing the governor an opportunity to consider the wisdom of a bill is to be avoided....”
“…The Legislature, once it has adjourned, can have no genuine interest in the speed with which a gubernatorial veto is made….We conclude that the governor has 10 full days from the date of presentment in which to consider bills presented to him after adjournment of the Idaho Legislature.”
Excerpt from the dissent:
“Within 10 days after adjournment means exactly what it says. The other way to veto a bill is within five days after presentment. In this case the Governor did neither….”
“There is no reason to speculate as to what would happen were presentment delayed until after 10 days from adjournment because that has not happened....In point of fact no serious curtailment of this period has ever occurred in the history of the state, and the assumption that it will ever occur would be a violent and highly improbable one….”