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Eye on Boise: Gov. Butch Otter points to legal concern about HJR 5 on November ballot

October 30, 2016

Idaho Gov. Butch Otter is urging a “no” vote on HJR 5, the constitutional amendment on the November ballot. And he’s added a new twist to the debate: Otter says a clause in the amendment that says “in whole or in part” actually would vastly expand the Legislature’s current power to review administrative rules, rather than simply writing that current power into the state constitution.

“I’d call it unnecessary, but its potential consequences are more serious than that implies,” Otter wrote last week in a guest opinion distributed to Idaho newspapers.

Under current law, lawmakers review administrative rules at the start of their legislative session each year, and either approve or reject them.

“But HJR 5 would go further,” Otter wrote, “embedding in the Idaho Constitution a legislative practice that can be found nowhere in existing law. The amendment would give lawmakers additional authority to reject rules ‘in whole or in part’ – essentially creating a lawmaking process in which the governor is constitutionally barred from vetoing the result. For example, the governor could do nothing if the Legislature unilaterally altered the basic intent of an agency’s rule simply by changing its language ‘in part’ from ‘the department shall not’ to ‘the department shall’ take a particular action.”

That same “in whole or in part” language appeared in the 2014 version of the constitutional amendment, HJR 2, which Idaho voters rejected; it went unremarked on at the time.

The Idaho Administrative Procedure Act lays out in detail how agency rules are enacted, including the legislative review process. There’s no mention in the current law of “in whole or in part.”

House Speaker Scott Bedke and Senate Majority Leader Bart Davis say they disagree with Otter’s interpretation, but a University of Idaho law professor says the “in whole or in part” clause certainly could be read in the way Otter’s suggesting. “It seems to me that there is a real danger that it could be interpreted in a way that the amendment’s sponsors did not intend,” said Shaakirrah Sanders, associate professor of law for the University of Idaho’s College of Law.

“I respectfully disagree,” said Davis, an attorney. “It doesn’t say that you strike any word. It talks about in parts, so that’s all it is. You have major parts and sub-parts, not words.” The Legislature typically considers rules section by section, so the measure reflects that practice, Davis said.

Both Davis and Bedke noted that two years ago, at the same time that lawmakers first unsuccessfully proposed the constitutional amendment to voters, they amended the state’s Administrative Procedure Act to remove a reference to a rule being “amended or modified” by the Legislature, leaving only the reference to a rule being “rejected.” That’s how the law always has been interpreted, including in a 1990 Idaho Supreme Court decision. The 2014 change passed both houses unanimously and was signed into law by Otter.

“We have never amended, we don’t intend to amend,” Bedke said. “That’s a red herring.”

But it’s clear that attorneys can interpret the language in the constitutional amendment in varying ways. “One thing that is clear is that there is a lot of ambiguity,” Sanders said. “There’s nothing that I see that would limit that ability to approve or reject in whole or in part to by section versus by word. It could be that they say, ‘All right, let’s take the ‘not’ out’ as opposed to ‘let’s remove subsection B.’ ”

That ambiguity, she said, “could lead to a possible need for the Idaho Supreme Court to interpret the scope of this amendment if it passes.”

Bonner prosecutor speaks out

Bonner County Prosecutor Louis Marshall says he referred the case of alleged harassment of a Democratic Party field organizer by supporters of Rep. Heather Scott to the Idaho attorney general’s office because of a possible conflict of interest for his office in looking into the matter. Marshall said the office contacted him about the case after receiving a complaint from the chairman of the Idaho Democratic Party, who also suggested he and the local sheriff, both Republicans, might have a conflict of interest in investigating the case.

“I was totally OK with the attorney general taking a look at it,” Marshall said.

He added, “It involves some voting issues, obviously, which are a little bit different than typical, standard, everyday crimes.”

The 21-year-old party organizer filed reports with both the Sandpoint Police Department and the Bonner County Sheriff’s Department about people wearing Scott campaign hats allegedly stalking and harassing him, including an incident in which one accosted him at a Sandpoint Safeway store and told him he was being watched; another in which he emerged from his Sandpoint office to find several of them leaning against his car; and another in which people showed up – outside a remote home where he was staying with a family – and photographed the home and his car license plates late at night.

The October incidents followed an August one – not reported to the police – in which the 90-year-old mother-in-law of Scott’s Democratic challenger, Kate McAlister, was accosted outside Safeway by a man in a Scott hat, with a gun on his hip, who complained about the woman’s “Kate” bumper sticker as she loaded her groceries into her car.

Marshall said, “Obviously we don’t want people out harassing our elderly population.”

He added, “Now Heather says explicitly that she has nothing to do with this, and that she has not sent these people out to do that.”

Marshall urged anyone with concerns about voter harassment or related issues to contact his office; he said thus far, no one has, including the party organizer and party officials. “My doors are wide open,” he said. “If people want to come in and make a complaint … we would take any of these matters seriously.”