City of Boise City v. Keep the Commandments Coalition

inadequate ord is validity determine the arguments

Granite Reeder’s that it will not

purchase property until it is annexed into however, Again,

the district. argument potential

centers on matters agreements

outside the ordinance. The challenged. cannot now be If the

respondents specific pursu- believe a contract law,

ant to that ordinance violates the

claim can be made then.

III.

CONCLUSION

The district court’s order is reversed.

Granite Reeder is awarded costs. No attor-

ney fees are awarded. TROUT, EISMANN,

Justices BURDICK concur. JONES

In the Matter of Initiative Petition for Display.

a Ten Commandments CITY, municipal

CITY OF BOISE

corporation, Plaintiff-

Respondent,

KEEP THE COMMANDMENTS COALI

TION, unincorporated association,

Bryan Fischer, individual, J. Swindell, individual,

Melissa B. De

fendants-Appellants.

No. 31308.

Supreme Court of Idaho.

Boise, December 2005 Term.

Aug. Office, Meridian,

Troupis Appel- Law Troupis argued. lants. Christ T. substantially ment, monument of Colaianni, Attorney, a second City Boise Cary B. size, containing an Bilyeu composition and Boise, Respondent. Valencia J. similar for Virginia Statute argued. excerpt from Jefferson’s the front Religious for Freedom. SCHROEDER, Chief Justice. monumеnts, passers- plainly visible and city’s stating the by, plaque shall be Keep the Commandments (the Coalition) and ac- religious freedom Initiative Petition filed an commitment (Petition) Display influence of the secular knowledgement a Ten Commandments of city demanding the enactment with the clerk displayed on the monuments. the texts the Ten Com- proposed ordinance for shall, prac to the extent display This placed in Julia display mandments to be tical, display erected identical to (the City) City City Davis Park. The County in Poca Courthouse the Bannock in Declaratory Judgment filed a Petition for tello, upheld in the case of Albanese requested the court to de- which it district 93-CV-115, County, Case # U.S. Bannock City authorized or re- cree that the is not Idaho; and, Court, this District оf District in quired an initiative election this to hold in shall be submitted ballot granted The district court the declara- case. Boise, City of qualified electors of the tory judgment. appealed. The Coalition rejection at the approval their day 2nd to be held on the election I. November, A.D., or on such date as City pursu by the Boise Clerk be set AND PROCEDURAL FACTUAL 34-106, and ant to Idaho Code Section BACKGROUND says: personally I have each for himself Eagles donated a The Fraternal Order of petition; I am a signed this City monument to the Ten Commandments Boise; my City of residence elector of the placed in Park. in 1965which was Julia Davis my correctly after post office are Mayor City council removed the Ten name. display park from the Commandments in March moved it to St. Michаel’s Cathedral signatures ‍​‌​‌​‌​‌‌‌​‌​​​​​​​‌​‌​​​​​​​​​​​‌‌​​‌‌‌​​​​‌​​‌‍on the verified the The Clerk Coalition, unincorporated asso- 2004. The 10,- petitions concluded that there were ciation, City the Petition with the Boise filed electors, a suffi- signatures Clerk, respectfully demanding City that the place the Petition on the cient number to placement proposed enact a ordinance for of ballot. display in Davis a Ten Commandments Julia City presented The Petition was following: Park. The Petition stated the council, place refused to it on quali- undersigned We the citizens and In a letter dated June ballot. City respect- of Boise fied electors City that the matter informed the Coalition following proposed fully demand that the was not a ordinance, to-wit: improperly sought the Petition sincе mayor and council Be ordained act, rather implement an administrative that, days City of Boise within 60 act, through an initiative than a Ordinance, the date of this the effective City directed the Boise election. The Department Boise Parks and Recreation concerning this Attorney to file an action in Davis shall cause to be erected Julia 27,2004, matter, City filed August Park, formerly in lоcation which Declaratory Judgment. The a Petition Eagles displayed the Fraternal Order court to declare City asked the district monument, the fol- Ten Commandments required to hold authorized or is not display: lowing a Ten Commandments case. election an initiative size, substantially similar declaratory granted court The district given to composition, and content to that not authоr- judgment, ruling that the city the Fraternal the 1960s upon election to hold an initiative ized Mi- Eagles and moved St. Order Petition, pro- reasoning had a 2004; March, within chael’s Cathedral monuments placing Ten monu- cess 20 feet of the Commandments parks proposed ñatee, at the time of the initiative. If a appealed. The Coalition appropriate for action initiative. On hand, proposed initiative is

II. nature, administrative in it falls outside the of action allowable initiative. STANDARD OF REVIEW clearly bright There is no line rule that dis- questions The standard of review for nature, tinguishes legislative what is as of law is one of free review. Electrical Whole opposed to administrative nature. Co., Nielson, Supply sale Inc. v. 136 Idaho issue in this case is whether the The (2001). 814, 825, 41 P.3d 253 interrupted by shоuld be the Court to consider the III. on an THE PROPOSED INITIATIVE IS petition prior to submission to the voters. RIPE NOT FOR REVIEW Such action would be consistent with this 1 Article of the Idaho holdings Gumprecht Court’s in Weldon and power propose Constitution reserves d’Alene, v. Coeur 104 Idaho 661 legislation people independent enact to the (1983), reasoning 1214 in Per P.2d and the legislature. provides part: It Robinson, rault v. 158 P. 1074 people pow- The reserve to themselves the recognized by The alternative is that laws, propose er to and enact at in Noh 137 this Court Idaho polls independent legislature. (2002), 1217 Indian initiative, power This is known as the and Gaming appear on Initiative legal may, voters under such conditions ballot in the November 2002 election. may provided by and in such manner as be 137 at Idaho 1218. The legislature, any acts of the initiate desired sought a In Petitioners declaration that the legislation and cause the same to be sub- Gaming dian Initiative violated the Idaho people gener- mitted at ‍​‌​‌​‌​‌‌‌​‌​​​​​​​‌​‌​​​​​​​​​​​‌‌​​‌‌‌​​​​‌​​‌‍a to the vote of the prohibiting Constitution and a writ the initia approval rejection. al election for their appearing tive from on the ballot. Id. This The manner in which the initiative ripeness Court noted that the traditional doc may § be exercised is set forth in I.C. 34- “1) requires petitioner prove: a that trine 34-1801, § seq., seq. et et Idaho presents the case definite and concrete is states, city § Code 50-501 council of “[t]he 2) sues, that a real and substantial controver provide by each shall ordinance for di 3) exists, sy that there is a need legislation people through

rect adjudication.” Id. at 53 P.3d at 1220. initiative and referendum.” The of This Court concluded that Noh did not meet Boise achieved this when it enacted ripeness the elements of the traditional test. 1-22-01, Municipal seq. et Id. was not a The Court reasoned that there provides, People “The Section 1-22-01 controversy Gaming real since the Indian right ordi shall have enact only proposal Initiative was a and it had not through process, nances the initiative and to become a law. Id. If the initiative did not repeal through ordinances the referendum adjudica pass, there would be no need for process, according procedures set validity. tion to its The was not language forth 50- herein.” The might never become ripe for resolution and 501 that and referenda indicates initiatives that the reason ripe. The Court concludes legislation. This Court are to be used ing in Noh is sound. held, has “referenda and initiatives Idaho Weldon, Gumprecht, approach addressing ‘acts’ or ‘meas are constrained the court into controversies Perrault takes body. passed by legislative a ures’ realities, calling for may never become words, only reject can seek to referendum pass rulings might the initiative never when ‘measure,’ an initiative can an ‘act’ or aside might amended or set be only implement an ‘act’ or ‘meas seek to ” authority. prevent It County v. Bonner Tax Coali ure.’ Weldon tion, articulating the ballot 875 voters from view Idaho allowed costs. reversed. instructive that could be allowed. way attorney vоtes are cast. fees are authority, No whichever through the public debate The benefits Resolution EISMANN, be lost. BURDICK Justices delayed concern public matter of concur. JONES work of pends. The hard litigation while J., TROUT, dissenting. may be wast- obtaining qualifying signatures single flaw finds a ed in the event the Court pe- today the Coalition’s allows initiative, necessitating a new the ballot because proceed to tition to cured though flaw could be process even review. the case is concludes by the courts legislature or stricken lack of perceived Presumably due to Proponents of an pass. should the initiative not determine Court does ripeness, defending the initiative must face the cost in a a monument placement whether the pass, to it ever hаs a chance initiative before proper the and therefore legislative, park is obtaining the barrier to erecting still another process, or subject matter of the voters. decision administrative, it in which case whether it is may in conduct- there be a cost Doubtless an initiative. scope lawful exceeds the ultimately ing an election on initiative I believe respectfully dissent because must invalid, by fails, or aside the or is ruled set Furthermore, ripe matter is for review. the However, process the initiative legislature. nature of what the administrative I believe Constitution, Article arises from the Idaho the use of precludes the Coalition seeks III, 1, by extends to the cities Section initiative election. It is not legislative mandate. 50-501. created rabble rousers an inconvenience Ripeness authority. and malcontents to vex established “whether frames the issue as mandate, signifi- process is a The initiative interrupted be process initiative should the enough in the Idaho cant to be embodied validity the the ... to consider Constitution, to address that enables voters compels au- of concern. it issues Sometimes (empha- the prior to submission to voters.” nothing else will. To thorities to listen when added). analysis case subsequent sis The in- the conclusion in this case is the extent making no distinc- suggests law the Court Weldon, Gumprecht Per- with consistent the constitutional tion between they are overruled. rault validity of the proposal and the constitutional may pass in In this case the initiative not controlled Article The steps over

which case the issue of whether Constitution, 1, III, Idaho proper initiative would be the bounds of a will proposal governed whereas the may pass The initiative and be moot. proposal people. It is not until adjudication, subject of an or the proper satisfy all constitu- law that it must becomes authority amend may exercise its council especial- provisions. This distinction tional sought validity of the action reject it. The or here, party is where neither ly important never be constitutionality challenging defending ‍​‌​‌​‌​‌‌‌​‌​​​​​​​‌​‌​​​​​​​​​​​‌‌​​‌‌‌​​​​‌​​‌‍action. Just as the proper for Court park. in a placing a certain monument legislature in of interrupt Court would enactment, Rather, challenge this is is whether prior of a bill the consideration interrupt properly the consideration will not matter which is Court peti- short, initiative. properly people. of a the Court’s a vote of the for the ballot for consideration qualifies tion blurring of the line between by the voters. mistakenly overrule proposal has led Perrault, Weldon, three Gumprecht, and

IV. Noh, the with which do not conflict cases relies. on which the Court case CONCLUSION Gumprecht v. presented in grant of the district court The decision 616, d’Alene, Idaho Declaratory Judgment Coeur City’s Petition (1983) 1214, 1215 Initiative, was “whether local Gaming the Indian the Court zoning ordinances be enacted or amend adopted Taxpay- the rationale of Associated through ed Idaho an initiative election.” Idaho, ers Inc. v. 111 Idaho If an initiative election were not the (1986), which it described enacting ordinances, means for zoning involving subject appro- an initiative “on a explained, Court then the council “would priate process, though acting jurisdiction in excess of its in hold might substance of the initiative violate the ing the election.” Id. at Noh, state constitution.” 137 Idaho at Similarly, Weldon Bonner Coun 53 P.3d at 1221. In the Court conclud- Coalition, ty Tax 124 Idaho ed petitioners standing first that the had no (1993), the critical issue was “wheth they alleged injury because had not providing er Idaho law for referenda and fact; they only argued they had would suffer encompasses county budget deci injuries the initiative became law. 137 Likewise, sions.” the concern in Perrault Idaho at 53 P.3d at 1219. The Court operation was whether the Sunday movie next determined the case was not be- beyond theater was of a local refer ‍​‌​‌​‌​‌‌‌​‌​​​​​​​‌​‌​​​​​​​​​​​‌‌​​‌‌‌​​​​‌​​‌‍cause the initiative had not become law and Robinson, endum. Perrault v. adjudication. there was no need for (1916). Gumprecht 158 P. 1074 did not in Id. at 53 P.3d at 1220. It seems clear volve a challenge zoning constitutional to a that, other than relating issues to Article (such claim); takings ordinance as a the issue challenge Section a constitutional to in Weldon budget was not whether a certain likely justiciable initiative will never be be- provision decision violated a tax in the consti simply proposal cause an initiative is a tution; and there was no First Amendment not analogous a law. The initiative is challenge Sunday operation of movie place legislature, debates that in take the Instead, theаtres Perrault. these cases law, until those turn discussions into a com- presented question confronting the exact the plaining party pressed would be hard to sat- today: proposed Court Whether the initiative isfy standing ripeness traditional re- III, scope fell within the of Article Section quirements. words, of the Idaho In Constitution. Thus, agree I that with the Court “the process the focus was оn the it But, reasoning in Noh is sound.” the reason- subject self—whether the matter of the ini ing in inapplicable Noh is rea- appropriate given tiative was the constraints Weldon, Gumprecht son and Perrault should of Article which limits the not be overruled: The here not is legislative matters. constitutional, proposal whether a is as Noh, Clearly distinguishable is a case in Noh, but whether the initiative election itself petitioners sought prohibit which the peoples’ would be a exercise of the appearing initiative from on the ballot be Weldon, power, Gumprecht inas and Per- proposal allowing cause the Indian itself— Noh, reading rault. A fair together with unconstitutional, gaming allegedly not —was cases, suggests proposal the a Weldon line of subject gaming because the of Indian was “constitutional,” need not be but must be beyond process. the of the initiative legislative. concepts These two are not mu- 798, 799, Noh v. exclusive, tually overruling so the Court’s 1217, 1218 alleged constitu Weldon, Gumprecht and Perrault is as un- tional infirmities included a violation of the necessary as it is erroneous. prohibition against gam Idaho Constitution’s distinguishable Becаuse Noh is from the Thus, bling equal protection violations. case, Weldon, I instant believe the case before us Gumprecht, unlike Perrault and the review, case, today ripe is as were the issues recognized instant the Court in Noh Weldon, “[tjhere it, Gumprecht and Perrault. The issue that in the case before was no merely subject before the Court is whether the mat- challenge ... mattеr be is qualifies process. That yond ter the reach the initiative.” Id. added). fact, controversy is a (emphasis issue is because there constitutionality today proposed act is declining to consider the as to whether place- establishing a plan procedure there is legislative or administrative and adjudication that and monuments in plaques need for to makе memorial ment of years required adopted before is five City parks determination was Thus, expensive unlike fund an election. petition was submitted before the Coalition’s will the vote is 50-1401, harm here occur Together, City. before taken; only passes. if the measure 2-05-04, 1999 monu- and the inquiry from Holding changes enabling plan can be considered ment is that it proposal whether a such very specific providing the basis for the laws voters, placed before the to whether peti- contemplated by the Coalition’s actions already gone through has proposal that place seeks to tion. Because legislative. passed is with- park, an act that falls until If this determination need not be made plan, purview already adopted of an complete, is threshold then the beyond act is administrative only requirement that matters the reach of meaningless. be voted becomes distinguishing framework for be-

Another Supreme the two has tween been used Legislation or Administration Kansas, Montana, and New Mexi- Courts of correctly subject identifies the making In addition to the new co. law/exe- of the Coalition’s distinction, existing law a relevant cuting city park. placement monument in a is the act declares a consideration whether notes, ‍​‌​‌​‌​‌‌‌​‌​​​​​​​‌​‌​​​​​​​​​​​‌‌​​‌‌‌​​​​‌​​‌‍legislative, As the Court purpose ways general public provides initiative, appropriate for action accomplish purpose generally, in which administrative, whereas if the usually legislative; whether it case it is enacted through not be an initiative segment of an an act that deals with a small agree with election. the Court’s observation policy question, it overall in which case is bright clearly that there is no line rule distin- likely City administrative. Wichita v. guishing from administra- matters of Network, Inc., Taxpayers 255 Kan. Kansas Nevertheless, tive ones. look to we 667, (1994); Town 672 jurisdictions guidance. courts Preece, Whitehall v. 288 Mont. any of the prеsented, Under frameworks (1998); City Alamo- 749 Johnson v. petition Coalition’s ad- qualify gordo, ministrative act that 121 N.M. 312 does not 910 (1996). case, In this Coalition’s size, petition dictating wording place- legis- rule distinguishing One between particu- particular ment of a monument lative and administrative matters is that city park clearly a law of lar adopts initiative is if a new applicability. Another consideration is that policy plan, whereas it is administrative knowledge requiring specialized decisions merely pursues policy plan already experience in municipal government Worthington adopted. City v. Council of administrative, even be characterized as Park, Cal.App.4th Rohnert 130 though they to involve also be said case, Cal.Rptr.3d 65 In this Wichita, a policy. establishment requested placement of a action —the framework, 874 P.2d at 672. Under this park clearly governed —is special- project-specific that involves existing plan. legislature has layout knowledge experience park ized provided management prop- of real Also, clearly administrative in nature. by city judgment erty owned with the rests many “re- have noted the initiative By § counсil. I.C. 50-1401. quite clearly to measures are stricted adopted in of Park the Board fully legislative.” Municipal 62 C.J.S. given and Recreation was Commissioners Wichita, 318; Corporations ornamenting, responsibility “direct 672; Whitehall, Town adorning, laying improving” out of the P.2d A City parks. 2-05-04. 749. sum, any under analyses, of these of the Coalition’s is adminis- trative, so it does not fall within the people’s power legislation. to enact For reasons, respectfully

these dissent from the opinion

Court’s and would affirm the decision

of the district court. Idaho, Plaintiff-Respondent,

STATE of HOREJS,

Andrew Michael

Defendant-Appellant.

No. 30490. Appeals

Court of of Idaho.

Feb. 2006. Aug.

Review Denied

Case Details

Case Name: City of Boise City v. Keep the Commandments Coalition

Court Name: Idaho Supreme Court

Date Published: Aug 14, 2006

Citation: 141 P.3d 1123

Docket Number: 31308

Court Abbreviation: Idaho