*1 In the Matter of the Petition for Writ
of Mandamus for Writ of and/or
Prohibition.
Ronda GIBBONS Roland
Almgren, Petitioners, CENARRUSA, Secretary State,
Pete Idaho, Respondent.
State
No. 28408.
Supreme
Boise, May 2002 Term.
3,May *2 have for a writ of
The Petitioners filed prohibition a writ of to declare mandamus or unconstitutional, H.B. 425 or least not 2002, 1, July primary until after the effective place. alter- will have taken ask to issue native the Petitioners the Court peremp- peremptory a writ of mandamus ordering that tory prohibition, writ of county Secretary clerks to of State order all Office, Chtd., Kelso Law d’Al- Starr Coeur comply with the Term Limits Act. ene, petitioners. for Lance, General, Attorney Hon. Alan G. II. Boise, respondent. Michael S. Gilmore argued. RIPE FOR A DECI- DISPUTE IS THIS PETI- AND AT LEAST ONE SION SCHROEDER, Justice. TIONER HAS STANDING TO BRING jurisdiction original This is an case in THIS ACTION declaring which the Petitioners seek an order Ripeness A. 425, repealed H.B. Term Limits 1994, Act initiative in unconsti- Ripeness one that must element tutional, directing Secretary order be a live case or satisfied there be county all of State to instruct clerks com- judicial controversy appropriate review. ply with the Term Limits Act. The Court “Ripeness asks whether there is need for expedited hearing on case and directed present action time.” Miles v. at the parties setting Co., submit briefs forth Idaho Power respective positions. Those briefs have Secretary P.2d states submitted and been reviewed the Court. repealed of the initiative sections argument Oral has been heard. upon any no who has have effect candidate candidacy with the Sec
filed declaration of retary of officers who State —those statewide I. subject limits would have been to term FACTS AND PROCEDURAL HISTORY Secretary not filed for reelection. The superviso that his office has no direct In 1994 the term Limits Act was clerks, ry authority county so over the no initiative. citizen’s This Court held that prohibition writ of would mandamus be the Term Limits Act was constitutional. At county against effective clerks. session, Legislature passed last its the Idaho May primary election is scheduled for repealed H.B. the Term Limits repeal impacts term limits body 2002. The Act. invalid, If the election. declared that an so that eligible would candidates who otherwise would become effective on Febru- eligible. be on the will not Those ary July ballot rather than 2002. The candidates, bill, potential clerks and vetoed the but the Governor veto, public alike have a to know who can need overrode the and the became appear and who cannot on the ballot before February effective A primary election is held. decision Petitioner Gibbons is a resident of Ada process that will allow the electoral County County who has filed for the Ada certainty necessary. proceed position currently Commissioner’s held ripe case is for review. ineligible incumbent who to have would be his name on the the Term Lim- ballot under B. The Role Of The Of State Act. Almgren its Petitioner is a voter County is a Kootenai who voted favor State general Act in I.C. respondent Term Limits the 1994 election. this case. 34-201 states, “Secretary such, of state chief election offi- party alike.” Id. As must “establish secretary cer.—The peculiar state is the chief elec- personal injury that is different state, respon- officer of this and it is his by any than that suffered other member of sibility uniformity to obtain and maintain public.” Selkirk-Priest Basin Ass’n v. application, operation interpretation State, 831, 833-34, 919 P.2d *3 Further, (1996). of § election laws.” 34-202 I.C. 1034-35 that, carrying states responsibili- “[i]n out his Almgren argues standing that he has ty 34-201], under secretary [§ section 17 he is a because voter who voted in favor of of state prepared shall cause to be and dis- the term limits in 1994. Gibbons is county tributed to each clerk detailed and running for County the Ada Commissioner comprehensive written and in- directives against seat an incumbent who would be relating structions to and based ineligible to run if the office were they elections, election apply regis- laws as deemed unconstitutional. tration of and voting procedures electors Regardless Almgren of whether has stand- which law under the direction and ing, it is clear that standing— Gibbons has county control of § clerk.” I.C. 34-203 running against she oppo- for election an states, carrying out responsibility “[i]n his ineligible nent who would be to run for office 34-201], secretary under Section 17 of [§ of the Term Limits Act were county shall assist advise each legislature’s repeal unconstitutional. The im- clerk regard application, opera- to the pacts campaign, her a and she demonstrates interpretation of the election laws as particularized injury and sufficient to estab- they elections, apply registration standing. lish voting procedures electors are under the direction and control
county clerk.” III. Secretary responsibil- of State has the CONSIDERATION OF PETITION ity issuing directives and instructions to FOR WRIT OF PROHIBITION OR county compliance clerks OF WRIT MANDAMUS IS APPRO- which could be certain PRIATE IN THIS CASE ineligible candidates would because of argues Secretary that the writs term limits. requested should not issue because the Peti Secretary party. of State is a seek Secretary tioners action take,
State has no the Peti pursue adequate did not remedy tioners Standing C. they delayed petition at law and that “It is a fundamental Amer tenet of the detriment of of prohibition others. Writs jurisprudence person wishing ican that a and are issued with cau jurisdiction invoke a court’s must stand Country City tion. Crane Creek Club v. ing.” Valkenburgh Van Term Citizens for Boise, 485, 487, 826 P.2d Limits, 15 P.3d (1990). standing “The doctrine of focus Secretary maintains the writ seeking on party es relief and not should not issue because the Petitioners are party adjudicated.” issues the wishes to have asking expand Secretary’s the Court to Miles, 763. In Idaho at duties. This not correct. satisfy requirement standing, order to seek directions and instructions from the party inju a “allege must demonstrate Secretary county comply to the clerks to ry in fact and a substantial likelihood initiative, the term limits which the judicial requested prevent relief will or re § may § under do I.C. 34-202 injury.” dress the claimed “a may taxpayer challenge citizen and a under I.C. injury governmental any person adversely enactment where the affected taxpayers one suffered all citizens and clerk’s actions sue the district could legislature. independent of the alleged polls county in in the is known wrongful act occurred. this situation conditions counties, legal may, under such voters in numerous could result suits provided such manner results, potential of and the inconsistent initiate desired acts courts possibility of actions the district the same to be sub- fact, legislation and cause following election. gener- people at a mitted vote in Ada suit has been filed district court rejection approval or al election for their challenging County prior filing action legislation thus submitted provided that validity on different approval a number of require shall grounds. Hearing in is scheduled that case aggregate equal to voters too late for decision that would allow governor at for the office of vote cast certainty as to orderly primary election with adopted. *4 general election to be The properly who be on the ballot. could primary the resolution of the issue before Curtis, 703, 136 P.2d v. Luker In process. appro- the critical to electoral legislature (1943), the the Court held that 978 priate this to Court authority repeal a law the to has an The Court noted the result of initiative. also that Peti the provision that the initiative of the constitu- others, delayed to the tioners detriment places on the no limitation and that it is too late the writs to issue. repeal of an initiative act and amendment or Particularly, Secretary argues the the that passed through laws this manner found that already clerks have local certified footing legislative acts: are on and that clerks will have candidates some mailing by contended, however, already begun ballots legisla- absentee It is that the argument. authority the time oral no amend ture has Schaffer, act, Fishman v. cites 429 U.S. 97 alleged the initiative (1976) directly S.Ct. 50 56 in a writ L.Ed.2d an initiative act comes reason that capaci In sought may very was before an election. his people. That well the Justice, stated, ty as legislators, Circuit Justice Marshall that answered the fact the “respondents strongly oppose Monday relief on first who convene Janu- sought, injunction claiming that at ary, following adoption initiative mea- disruptive sures, time people, would have chaotic direct from come process____For on the these having effect electoral been elected at same time reasons, application adopted conclude that ini- the same electors who Fishman, 429 at repeals should be denied.” U.S. If tiative measure. act, 50 at people 97 S.Ct. at L.Ed.2d 61. or amends an initiative remedies, they both which at least two Timing clearly concern in this critical time, may at to redress exercise the same expedited case. Court has the ease and they if indeed have a grievance, them on merits to allow renders its decision legislature: act of grievance, over the proceed with certain- First, they may measure reenact the ty as the law. to the current and, second, at same another election, may time at same elect IV. will, who other members of MAY REPEAL LEGISLATURE may, better heed wishes. THE INITIATIVE IMMEDIATELY Luker, P.2d at 979- 64 Idaho at BY DECLARING AN “EMERGEN- TO CY” EXIST process place outside The initiative takes right people’s pass initiatives concede and the Petitioners III, § in Article of the Idaho contained can briefing in that the Constitution. It states: However, resulting from an initiative. argue may only do pow- they people to themselves the reserve ordinary emergency legislation, propose
er
the same
so with
and enact
legislation.
rely
pas-
Petitioners
In
is a
decision
those
where the Constitu-
exclusively
prohibit
within the
specifically
Leg-
tion does not
ambit of
judiciary
repealing
islature from
cannot second-
initiation
tion,
commonly
guess
it is
held
Id. at
the courts of
decision.”
added).
jurisdictions
(emphasis
that acts so
ar-
subject
repeal by
Legislature
gue
inapplicable
this statement is
ordinary legislative
same manner as
infringes
right
other
a constitutional
but
repealed.
measures
they
identify
right
do not
a constitutional
infringed
the declaration of an
711, 136
Id. at
emergency in this case.
violate
re
right
served
Leroy,
laws
this Court concluded
John
is,
them
polls.
process
conjunction
enact
at the
That
son must
be read
Diefen
III,
language
Gallet,
Section
dorf
(1932).
Constitution,
legisla
Gallet
Court held
ture.”
determined
judiciary
governor’s
could not review the
de
process
once a law is enacted in the initiative
termination that an
it is like
other law. It
amended
justify calling
session of the
*5
repealed by
subsequent
the
legislature, and that
the
could not
Court
initiative. The Petitioner
that
this
legislature’s
the
review
determination that an
language
only go
means that the law could
emergency
justify
dispensing
in
into effect
the
time
“normal”
frame. How
requirement
the constitutional
that before an
ever,
language
the
in Luker
mean
does not
passed, it
printed
act could be
must be
change
effec
the
separate days
on three
in each
read
house.
of
legislation by declaring
tive date
the
at
10
P.2d at 314-15. The
emergency.
passed by
and laws
Initiatives
stated,
Court
determination as to
“[t]he
footing.
are on
The
whether facts exist
as to constitute ‘an
legislature may change the effective
of
date
gover
is for him [the
occasion’
any
passes.
legislative right
law it
in
alone to determine.” Id.
nor]
cludes
of an
which once
justification
legislative
discretion
enacted,
legisla
ordinary
is treated as “other
in this area is that the decision to declare an
tive measures.”
emergency
decision-making
function
“a
to determine the effective
uniquely legislative.
The courts are
III,
in
legislation
date of
is contained Article
equipped
policy
ill
to make such
decisions.”
Constitution,
§ 22 of
Idaho
which states:
Leroy, 110 Idaho
at
718
When acts take
act
take
effect.—No
shall
respect
co-equal
“The
due to the
and inde-
sixty
from
of
days
effect until
the end
pendent
legislative
govern-
branch of state
session at which
shall
been
the same
finality
certainty
ment
the need
passed, except
emergency,
in
case of
duly
about
status of
enacted statute
emergency
shall be
in the
declared
contribute to
reluctance of the courts to
preamble
body
or in
the law.
inquire
legislature’s
deter-
into whether
justified.”
in
Legislative
declaring emer
of an
date is
discretion
mination
effective
gencies
recognized
Shepherd, concurring in
was
in Johnson v.
Justice
Assoc. Tax-
Diefen
Cenarrusa,
111
dorf,
payers
57
1083
v.
Ida-
P.2d
Inc.
(1986),
(1936),
stated,
left
725
that “[i]n
“it is
to the discre
ho
P.2d 526
stated
exceedingly
fix
my
dangerous
tion of
when
view it is
this
time
court,
Court,
any
with-
go into
did
interfere
[the act] shall
effect.” Johnson
legislative process.
not
issue
a court could
Within the duties of this
raise the
of whether
legislature’s
that an
is the
of the constitu-
review the
declaration
Court
determination
tionality
gov-
emergency
issue
of other branches
existed. That
was resolved
actions
Leroy,
only
Idaho
the time and circum-
Idaho State AFL-CIO
ernment but
when
gov-
of Idaho
ince
branch
Taxpayers,
appropriate.”
Assoc.
stances
(emphasis
ernment.
P.2d
at
at
Idaho
case the Petitioners are
original).
most of
addresses
opinion
to interfere with
asking
public
perplexing
is-
issues this
relevant
this Court has held re-
process,
tive
Therefore,
I
concur
sue raises.
it
so.
peatedly
not
to do
forth
analysis and conclusions set
I
majority.
separately
because
be-
write
argue
Petitioners also
Idaho
constitu-
necessary to discuss the
lieve it is
requires that the
de-
Constitution
Justice
by Chief
problem
tional
articulated
emergency
one in
fine the
when it declares
Curtis, 64
in Luker v.
in his dissent
Holden
rely upon Article
703,
V. mean? islature” OF IS SECRETARY STATE NOT § 1 was issue ENTITLED TO ATTORNEY FEES The Luker Court held before the Court. *6 by people and stat that statutes initiated attorney of State seeks fees by legislature equal were on utes enacted 12-121, Appellate Idaho under I.C. Rules 979. In his footing. Id. at 35(b)(5) 11.1, and, arguing and dissent, Holden contended that Chief Justice controlling identify case Petitioners failed majority’s had effect of ren opinion pursued law in the brief and have not 3, § 1 “a worthless dering Article mere petition Appellate with Rule consistent ” argued allowing paper.’ He ‘scrap of request attorney fees 11.1. is de- power initiated legislature nied. legislation provision of the annulled that Con “useless, ab stitution and also rendered it YI. surd, and ridiculous.” CONCLUSION request prohibition or for writ of However, note, harsh I believe on a less petition mandamus denied is dis- legislature” applies of the Respondent costs. missed. is awarded power ability people’s attorney No fees allowed. through process, free from laws the initiative by proposed A legislature. interference WALTERS and Pro tern Justices Justice amended, reviewed, or cannot be concur. WESTON SCHILLING by legislature. The initiative thwarted KIDWELL, Specially Concurring. people Justice to the reserved without intrusion exercised us underlying issue before is whether people It is this reserved to ture. laws the Idaho Constitution and allow adamantly preserve must this Court law that started protect. an initiative. wisdom term life as an initiative is voted judgment once limits or then, law, Luker as the legislation prov- term limits is the becomes repealing held, equal footing legislative it is with Luker majority reading
acts. A close
opinion reveals the terms “law” and unfortunately
“initiative” used inter-
changeably. my opinion. This is incorrect needs to made clear that the
can amend a law that resulted process,
the initiative but interfere
with proposed the initiative itself. Whether
legislation initiative, people referendum,
approved as a
resulting law is to other laws. The
terms “law” and “initiative” should not be law, interchangeably.
used A even if it be-
gan as an be amended or
repealed by violating without 3, § 1 of the Idaho Constitution. majority today holding is in accord Luker,
with but does not address the ambi-
guity question raised Chief Justice view, my
Holden’s dissent.
opinion only agrees with it is
compatible questions raised
Luker analysis dissent herein fol- agree
lowed. the decision affirm Luker Court’s holding law result-
ing equal footing from an initiative is on Here, resulting
a law from a acted, perhaps unwisely, has
but within the Constitution the State of
Idaho. *7 Hawkley,
In the Matter of Daniel L.
Attorney At Law. BAR,
IDAHO Plaintiff- STATE
Respondent, HAWKLEY, L.
Daniel Defendant-
Appellant.
No. 28045.
Supreme Court of
Boise, September 2002 Term.
Oct.