Mead v. Arnell, 18231

Citation791 P.2d 410,117 Idaho 660
Decision Date13 March 1990
Docket NumberNo. 18231,18231
PartiesDavid R. MEAD, Chairman, Fred E. Marienau, Ronald V. Harlow, Donna L. Parsons, Wylla D. Barsness, Robert C. Stanton, and Maureen A. Finnerty, in their official capacity as the Idaho Board of Health and Welfare, Applicants, v. W. Bruce ARNELL, Director of the District VII Health Department and J. Albert Laird, Board Member, Chairman, and in his representative and official capacity as the Board of the District VII Health Department, and Tom Boyd, Representative and Speaker in his official capacity as the presiding officer of the House of Representatives of the Centennial Idaho Legislature, and Michael D. Crapo, Senator and President Pro Tem in his official capacity as the presiding officer of the Centennial Idaho Legislature, and as the official representatives of the Idaho Legislature, Respondents.
CourtUnited States State Supreme Court of Idaho

Jim Jones, Idaho Atty. Gen., and Michael R. DeAngelo, Deputy Atty. Gen., Boise, for applicants. Michael R. DeAngelo, argued.

Hopkins, French, Crockett, Springer & Loopes, Idaho Falls, for respondents, Arnell, et al. Gregory L. Crockett, argued.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for respondents, Boyd, et al. Patrick J. Kole, argued.

McDEVITT, Justice.

The issues presented to this Court by this petition are issues that have been much debated; and in support of and in opposition to each side of this argument learned scholars and professors have set pen. 1

On each side of this issue are arrayed knowledgeable and intelligent individuals who argue that a decision following one course would result in the usurpation and a disruption, if not dislocation, of the function of the executive department of government and create instability in place of regulatory certainty. On the other side of the issue the argument persists that the representatives elected directly by the people are those who should ultimately determine the nature and quality of regulations insofar as whether or not they reflect the will of the legislature of the state of Idaho; and a decision contrary to the arguments of this faction would result in an ever burgeoning executive power not contemplated, provided for or desired by the people. All presenting arguments on this issue are agreed that however this Court might rule, if contrary to their expressed positions, the Court will be doing violence to the Constitution of the state of Idaho. Into this thicket this Court has been invited.

On October 15, 1985, applicants, the Idaho Board of Health and Welfare, adopted rules and regulations for individual and subsurface sewage disposal systems, IDAPA 16.01.3001-999 (hereinafter referred to as the 1985 Rules). The 1985 Rules were promulgated pursuant to Idaho Code tit. 39, ch. 1, after substantial public testimony and written comment at three public hearings. The official testimony at all three hearings introduced the background of the previous regulations (ratified by the Board in 1978) and explained that the Board's 1978 regulations were based on seventy-year-old criteria that would allow system failures and pose a threat to water quality and public health. It was argued the regulations needed to be revised to follow the latest pollution prevention techniques. The 1985 Rules were duly adopted by the Idaho Board of Health and Welfare.

The Board issued more than 11,000 permits to private citizens and business entities in order to comply with the 1985 Rules. Then, during the 1989 legislative session, the House of Representatives and the Senate of the Idaho Legislature adopted House Concurrent Resolution 29 (HCR-29), which "rejected, declared null and void and of no force and effect" the 1985 Rules. This action was taken in reliance upon the provisions of I.C. § 67-5218 as amended in 1985. Additionally, HCR-29 instructed the Board of Health and Welfare "to promulgate the rules and regulations relating to Individual/Subsurface Sewage Disposal Systems that were in effect prior to October 15, 1985, and those rules shall be deemed to be in full force and effect," and to "begin procedures under the Administrative Procedures Act to promulgate rules and regulations relating to Individual/Subsurface Sewage Disposal Systems taking into account site specific factors such as climate, depth of the water table, where the systems will be installed, monetary hardships and other relevant factors."

District VII has independently determined to follow HCR-29 until such time as the judicial system determines the resolution unconstitutional, and is ignoring the 1985 Rules. The Board of Health and Welfare has refused to comply with HCR-29 and now requests that this Court issue writs of prohibition and mandate to the legislature and District VII that will, in effect, command their acquiescence in the Board's 1985 rules. The Board urges that the means the Court should take to reach this end is to hold I.C. § 67-5218 and HCR-29 unconstitutional.

The issue before the Court is whether the Idaho Legislature may rescind the rules promulgated by an executive department board or agency by concurrent resolution pursuant to I.C. § 67-5218. A number of jurisdictions have dealt with variations of the issue before us. In each case, differing issues, constitutional provisions, or statutes preclude our adoption of them as clear precedent. 2

The Court's position in this case is not unlike that described by Chief Justice Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257, 404 (1821):

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty.

Justice Bistline in Holly Care Center v. State Dep't of Emp., 110 Idaho 76, 714 P.2d 45 (1976), anticipated that one day this question would reach this Court when he said:

Not before us, and left for another day and another case, is the legal effect of action by the legislature in rejecting an administrative rule. The legal efficacy of the legislative veto raises potentially serious constitutional issues, involving among others that pertaining to the presentment of bills and the fundamental principle of separation of powers.

This Court, mindful of Justice Marshall's admonition, addresses the issues presented to it by the applicants and respondents.

Specifically, the issues before this Court are as follows:

1. Whether the Idaho Supreme Court can and should exercise original jurisdiction to issue writs of mandate, prohibition and a declaratory judgment in mandamus?

2. Whether I.C. § 67-5218 and HCR-29 violate the Idaho Constitution's legislative enactment and presentment clauses in article 3, §§ 1 and 15, and article 4, § 10, or the principle of separation of powers contained in article 2, § 1?

3. Whether District VII must comply with the Board of Health and Welfare's 1985 Rules?

I. SUPREME COURT'S JURISDICTION

We exercise this Court's original jurisdiction and review this case under the power granted by article 5, § 9 of the Idaho Constitution. Article 5, § 9 specifically states that the Supreme Court has "original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction." We also note that the Idaho Supreme Court's original jurisdiction is limited only by article 2, § 1 of the Idaho Constitution and its own Court Rules. Article 5, § 13 of the Idaho Constitution provides that the legislature shall "regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, ..." The principle that neither the legislature nor the executive can in any way regulate or alter the Supreme Court's jurisdiction is basic to the doctrine of separation of powers. Idaho Constitution, art. 2, § 1. Even though legislative authorization is not necessary, I.C. § 10-1201 authorizes this Court to issue declaratory judgments in appropriate situations.

The procedural guidelines pertaining to special writs is delineated in Idaho Appellate Rule 43. Regarding the extent of the Supreme Court's original appellate jurisdiction, I.A.R. 5 provides that: "Any person may apply to the Supreme Court for the issuance of any extraordinary writ or other proceeding over which the Supreme Court has original jurisdiction, and such application shall be made as provided in these rules." Once this Court has asserted its original jurisdiction, it may issue writs of mandamus and/or prohibition. See also I.C. §§ 7-301-7-303, 7-401-7-404.

In the instant case, the Board is requesting that the writ of prohibition be issued to nullify legislative action taken pursuant to I.C. § 67-5218, and that the writ of mandate be issued to District VII. Our disposition of the constitutionality of I.C. § 67-5218 will be limited to a simple declaration of its constitutionality or lack thereof.

These limits do not apply, however, to our determination of whether District VII must comply with the 1985 Rules.

II. SEPARATION OF POWERS
A. EXECUTIVE POWER

Article 2, § 1 of the Idaho Constitution provides for the separation of powers among the three branches of Idaho's government. Article 3, § 1 provides that the power to pass bills is vested in the legislature. Article 3, § 15 provides that, "[n]o law shall be passed except by bill, ..." Read together, these three constitutional provisions stand for the proposition that, of...

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    ...of powers provisions contained in Article II, Section 1 of the Idaho Constitution and this Court's own rules. Mead v. Arnell , 117 Idaho 660, 663, 791 P.2d 410, 413 (1990). ‘Any person may apply to the Supreme Court for the issuance of any extraordinary writ or other proceeding over which t......
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