Associated Taxpayers of Idaho, Inc. v. Cenarrusa
| Decision Date | 15 September 1986 |
| Docket Number | No. 16589,16589 |
| Citation | 111 Idaho 502,725 P.2d 526 |
| Parties | ASSOCIATED TAXPAYERS OF IDAHO, INC. and Russell Westerberg, Petitioners, v. Pete CENARRUSA, Secretary of State, State of Idaho; "Vote Yes" For Idaho's Economy; Idahoans For the Right To Vote on Lotteries; and Idaho Allied Christian Forces, Inc., Respondents. and Mike Blackbird; Rosie D. Reilly; Kimberly Lannen Stanphill; Steve Herndon; Jeanne Givens; Marvin Vandenberg; Lee Ray; Alex Bedini, Intervenors, and Help Idaho Thrive, Intervenor. |
| Court | Idaho Supreme Court |
WHEREAS, Petitioners filed an APPLICATION FOR WRIT OF PROHIBITION with supporting brief and affidavit of Russell Westerberg; and thereafter served copies of the Application to all real parties in interest and potential parties in interest, including Pete Cenarrusa, Secretary of State; Vote Yes for Idaho's Economy; Idahoans for the Right To Vote On Lotteries; Idaho Allied Christian Forces, Inc.; and thirty-one individuals who originally signed the lottery initiative petition; and the Court subsequently granted Motions to Intervene by Mike Blackbird, et al, and Help Idaho Thrive; and the Court received Answers and supporting documents by Cenarrusa, Vote Yes for Idaho's Economy, Mike Blackbird, et al, and Help Idaho Thrive; and thereafter, the Court set oral arguments on September 5, 1986; and
WHEREAS, after oral argument, the Court having considered all of the above documents and arguments; and
NOW, THEREFORE, IT IS HEREBY ORDERED, that the APPLICATION FOR WRIT OF PROHIBITION be, and it is hereby, DENIED.
IT IS FURTHER ORDERED THAT, attorney fees and costs be, and hereby are, DENIED.
BAKES and HUNTLEY, JJ., would grant the writ.
The dissent to the order denying the Writ of Prohibition nullifies the right of the people to exercise their franchise which is to vote so as to express their views on the lottery issue. Any conflict between the initiative and the constitution has no bearing on the right of the people to enact it. Iman v. Bolin, 98 Ariz. 358, 404 P.2d 705, 709, (1965), citing State v. Osborn, 16 Ariz. 247, 143 P. 117, (1914).
Petitioners' action attacking the constitutionality of the proposed initiative is premature and presents no justiciable controversy at this time. For this Court to act, "[there] must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984), quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). Only if the lottery initiative passes, will its subject matter then become subject to constitutional challenge. Oregon Education Ass'n. v. Paulus, 78 Or.App. 32, 714 P.2d 1060 (1986); Union Electric Co. v. Kirkpatrick, (Mo.1984), 678 S.W.2d 402; State ex rel. Walter v. Edgar, 13 Ohio St.3d 1, 469 N.E.2d 842 (1984); McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980). Until this future event occurs, we cannot do what petitioners ask of us.
It is true that this Court entertained a pre-election review of an initiative in Gumprecht v. City of Coeur d'Alene, 104 Idaho 615, 661 P.2d 1214 (1983). However, we held only that an initiative election was an improper method to amend or enact zoning ordinances because the legislature had statutorily prescribed exclusive zoning procedures, and an initiative election was not one of those statutorily authorized procedures. More importantly, we specifically refrained from addressing or deciding the substantive validity of the proposed initiative. Id. footnote 1 at 616, 661 P.2d at 1215. Here, it has been determined that the Secretary of State has complied with all the requirements of preparing the initiative for placement on the ballot. Furthermore, as in Gumprecht, we do not address the substantive validity of the proposed initiative.
If the voters at the election defeat the lottery, then the state will know what a majority of the voters of Idaho want. If the lottery passes, then the legislators who represent the people will know what the peoples' wishes are and can act in a constitutional manner to amend the constitution so as to carry out those wishes.
At this time any action by the Court is premature, ignores the Doctrine of Separation of Powers, and thwarts and interferes with the peoples' right to exercise their franchise which is the most fundamental and cherished right of the people. This attempted interference is what I refuse to take part in, and I strongly disagree with any attempt to interfere.
In the ordinary course of events this Court, when asked to issue an alternative extraordinary writ, only enters an order issuing or denying the writ. In the instant matter the membership of the Court insists on the entry of opinions explaining why the Court was correct or erroneous in denying the writ. Hence, I join the parade.
The history of the initiative process is amply discussed in Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). Here it is sufficient to state that it arose during the Populist movement in part as a result of dissatisfaction with the traditional representative legislative process. The initiative clause of our Constitution was adopted in 1912, and lay dormant for more than 20 years until the legislature in 1933 prescribed the method of exercising the initiative privilege. That clause of our Constitution provides: "The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature." At this point in time the contents of the petitions have only been proposed, and only if and when the "law" is approved by "a number of voters equal to a majority of the aggregate vote cast for the office of governor," will such law be enacted. What the Court is asked to do today is no different than if it were asked at an earlier time to enjoin the circulating of petitions or to prohibit the Secretary of State from filing the petitions. Today the initiative remains a proposal, and it will only become enacted if approved by the voters in November.
In my view it is exceedingly dangerous for this Court, or any court, to interfere with the legislative process. Within the duties of this Court is the determination of the constitutionality of actions of other branches of government but only when the time and circumstances are appropriate. I suggest that neither the time nor the circumstances are appropriate during the legislative process.
I find no precedent for this Court prohibiting the voters from expressing their opinions at the polls. In Luker v. Curtis, supra, the voters by initiative enacted in November 1942 the "Senior Citizens Grants Act" which was certified and declared in force November 23, 1942. In January 1943 the Idaho legislature promptly repealed that Act. The Court was not asked to, nor did it interfere in the initiative process, nor in the legislative process repealing the initiative. Rather, after the passage of the repealing legislation it was asked to determine, and declared that the repealing legislation was constitutional. In the case of In re Petition of Idaho State Federation of Labor, 75 Idaho 367, 272 P.2d 707 (1954), a petition for an initiative measure was presented to the Secretary of State in April 1954. The Secretary of State, as required by the statute, submitted the petition to the Attorney General for the preparation of a title. The sole issue in the case was the sufficiency of the title prepared by the Attorney General. In June of that year the Court, rather than interfering with the initiative process, disapproved the title and required the Attorney General to "within five days after this decision becomes final, prepare a title in accordance with the views expressed herein and file the same with the Secretary of State."
At no time in the past has this Court attempted to prohibit either the elected representatives, or the people, from casting a vote on proposed legislation. To argue, as do the petitioners here, that the two legislative processes, one by the elected representatives, and the other directly by the people through the initiative, are different because the representative process contains opportunity for deliberation and/or amendment, is unavailing. Circumstances can easily be postulated illustrating the inevitability of the enactment of unconstitutional legislation absent interference by this Court. Nevertheless, I deem it clear that this Court would not so interfere in the legislative process.
Our legislature has enacted lottery legislation which was later held to be clearly unconstitutional. In 1947 the legislature purported to legalize lotteries in the state of Idaho. This Court did not attempt to interfere with the legislative process, but rather waited until an appropriate case had been brought before the Court in 1953 to declare the legislation unconstitutional. State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953). Legislation proposed by the initiative process may suffer similar defects.
As stated in Greenburg, The Scope of the Initiative and Referendum in California, 54 Cal.L.Rev. 1717 (1966):
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