Reclaim Idaho, & the Comm. to Protect & Pres. the Idaho Constitution, Inc. v. Denney
| Decision Date | 23 August 2021 |
| Docket Number | 48760,Docket Nos. 48784 |
| Citation | 169 Idaho 406,497 P.3d 160 |
| Court | Idaho Supreme Court |
| Parties | RECLAIM IDAHO, and the Committee to Protect and Preserve the Idaho Constitution, Inc., Petitioner, v. Lawerence DENNEY, in his official capacity as the Idaho Secretary of State; and State of Idaho, Respondents, and Scott Bedke in his official capacity as Speaker of the House of Representatives of the State of Idaho ; Chuck Winder, in his official capacity as President Pro Tempore of the Idaho State Senate; Sixty-Sixth Idaho Legislature, Intervenors-Respondents. In re: Petition for Writ of Mandamus. Michael Stephen Gilmore, a Qualified Elector of Ada County, Petitioner, v. Lawerence Denney, in his official capacity as the Idaho Secretary of State, State of Idaho, Respondents, and Scott Bedke in his official capacity as Speaker of the House of Representatives of the State of Idaho ; Chuck Winder, in his official capacity as President Pro Tempore of the Idaho State Senate; Sixty-Sixth Idaho Legislature, Intervenors-Respondents. |
Ferguson Durham, PLLC, Boise, for Petitioners. Deborah A. Ferguson argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent Lawerence Denney. Megan Larrondo argued.
Holland & Hart, LLP, Boise, for Intervenors-Respondents Scott Bedke, Chuck Winder and Sixty-Sixth Idaho Legislature. William G. Myers, III, argued.
Michael Stephen Gilmore, Boise, Petitioner Pro Se, argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent Lawerence Denney. Megan Larrondo argued.
Holland & Hart, LLP, Boise, for Intervenors-Respondents Scott Bedke, Chuck Winder and Sixty-Sixth Idaho Legislature. William G. Myers, III, argued.
This case concerns the people's referendum and initiative rights, enshrined in Article III, Section 1 of the Idaho Constitution, which reads, in part:
These same provisions also contain language directing the Idaho Legislature to enact laws establishing the "conditions" and "manner" by which these rights will be exercised. Id . Today we are asked to determine whether recent limitations imposed by the Idaho Legislature unconstitutionally infringe upon these rights.
Two petitions have come before us seeking to invoke the Idaho Supreme Court's original jurisdiction in order to declare two statutes unconstitutional and to issue extraordinary writs—a writ of mandamus and a writ of prohibition. First, Michael Stephen Gilmore ("Gilmore") seeks a declaration that Idaho Code section 34-1805(2), as amended by SB 1110, violates the people's constitutional initiative and referendum rights. SB 1110 requires that, for an initiative or referendum to appear on the ballot, organizers must obtain a threshold number of signatures from "each of the thirty-five (35) legislative districts" in the state. Gilmore argues this violates the equal protection clause of the Idaho Constitution and unconstitutionally divides the people's legislative power. Gilmore also petitions the Idaho Supreme Court for a writ of mandamus ordering the Idaho Secretary of State "not to implement" the statute as amended.
Gilmore's petition is opposed by the Idaho Secretary of State ("the SOS"), who is represented by the Attorney General, as well as the Intervenor-Respondents Scott Bedke, as Speaker of the House of Representatives of the State of Idaho; Chuck Winder, as President Pro Tempore of the Idaho State Senate; and the Sixty-Sixth Idaho Legislature (collectively "the Legislature"),1 which retained independent counsel. Both the SOS and the Legislature argue that the changes enacted by SB 1110 are a lawful exercise of the legislature's constitutionally-delegated power to prescribe the conditions and manner under which initiatives and referenda may be carried out by the people. The SOS also asserts that Gilmore lacks standing, a writ of mandamus is an improper remedy, original jurisdiction is not warranted, and this case presents a nonjusticiable political question that the Idaho Supreme Court should not address.
Second, this case consolidates a subsequent petition filed by Reclaim Idaho ("Reclaim") and the Committee to Protect and Preserve the Idaho Constitution, Inc. ("the Committee"), which seeks a declaration that the new signature threshold mandated by SB 1110, requiring signatures from every legislative district, is unconstitutional. They also challenge the constitutionality of another statute, Idaho Code section 34-1813(2)(a), which was amended in 2020 and states that an initiative may not become effective earlier than July 1 of the year following the vote in which it was passed. Reclaim and the Committee contend both amended statutes nullify the people's fundamental constitutional right to legislate directly. They seek a writ of prohibition to prevent the Secretary of State from enforcing these statutory provisions.
Reclaim and the Committee's petition is also opposed by the SOS, as Respondent, and the Legislature, as Intervenors. The SOS and the Legislature again argue that the challenged provisions fall within the legislature's authority granted in Article III, Section 1 of the Idaho Constitution. The SOS adds that a writ of prohibition is an inappropriate remedy and this Court lacks original jurisdiction to hear the petition. The Legislature further contends that the substance of the legislature's conditions on the people's initiative and referendum powers is a nonjusticiable political question.
In 2021, the Idaho Legislature passed SB 1110, which amended Idaho Code section 34-1805(2), the statute that sets forth the process by which the people exercise their initiative and referendum rights. Governor Brad Little signed SB 1110 into law, but expressed reservations concerning the constitutionality of the legislation. Under the previous law, petition organizers needed to gather signatures from 6% of the total registered voters in the state at the time of the last general election, including 6% of registered voters from each of 18 legislative districts. SB 1110 increased the legislative district requirement to 35 districts—meaning petition organizers must now obtain signatures from 6% of registered voters at the time of the last general election in every legislative district in the state. See I.C. § 34-1805(2). Because the bill contained an emergency clause, it became effective immediately.
A year earlier, in 2020, Governor Little signed into law a bill amending the second statute at issue in this case, Idaho Code section 34-1813(2)(a). That statute now prevents any initiative approved by voters from taking effect before July 1 of the year following voter approval of the ballot initiative, effectively allowing the legislature six months from when it convenes in January to repeal any voter-passed legislation before it goes into effect. See IDAHO CONST. art. III, § 8. The Legislature insists that the amendments to both statutes are within its constitutional authority.
This is a dispute many years in the making. In 1912, the people of Idaho amended the state constitution to "reserve to themselves" initiative and referendum powers. The amendment added a second and third paragraph to Article III, Section 1 of the Idaho Constitution, which defines the legislative power of the state. As amended, this section reads:
IDAHO CONST. art. III, § 1. The Idaho Constitution reserves to the people the power to legislate directly, while authorizing the legislature to prescribe the "conditions" and "manner" by which the people can do so. Id.
In 1915, the legislature passed enabling legislation for the exercise of those powers setting several onerous—if not impossible—conditions for a ballot proposition to qualify for the ballot. For one, the proposed legislation would have required all signatures to be witnessed by a judge or state official. Further, the threshold signature requirement to qualify for the ballot would have been high: 15% of voters in the last gubernatorial election in each of Idaho's counties for initiatives, and 10% in each of Idaho's counties for referenda. 2
Then-Governor Moses Alexander vetoed the bill, writing that it would have been "fatal" to the people's nascent initiative and referendum rights. In response, the legislature set a course of deliberate inaction, failing to pass any enabling legislation and allowing the people's initiative and referendum power to remain dormant for another 18 years.
In 1933, the legislature finally acted, passing a law which allowed an initiative or referendum to qualify for the statewide ballot if proponents obtained signatures from 10% of the statewide votes cast in the prior gubernatorial election....
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