Bill Description: House Bill 326 would require any legislative chamber seeking to intervene in a legal case challenging the constitutionality of an Idaho statute to do so only through the Senate president pro tempore or Speaker of the House, as applicable.

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NOTE: House Bill 326 is related to Senate bills 1119, 1080, and 1045, all introduced in this legislative session.

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

Currently, Section 67-465, Idaho Code, says, "When a party to an action challenges in state or federal court the constitutionality of an Idaho statute, facially or as applied, challenges an Idaho statute as violating or being preempted by federal law, or otherwise challenges the construction or validity of an Idaho statute, either or both houses of the legislature may intervene in the action as a matter of right by serving a motion upon the parties as provided in state or federal rules of civil procedure, whichever is applicable."

House Bill 326 would amend this section to say that "the legislature may seek to intervene, at the sole discretion of the senate president pro tempore or the speaker of the house of representatives, or both, in the action as agents of the state of Idaho and as a matter of right, or permissively, by filing a motion in the court as provided in state or federal rules of civil procedure, whichever is applicable."

It would also add a new subsection that says, "The authority to intervene … does not require evidence that the intervenor's interests differ from any branch, department, office, or official of the state of Idaho; and operates regardless of whether the state of Idaho itself is a named party."

A final new subsection would say, "The provisions of this section shall apply to any litigation that is pending on or after the effective date of this act."

This bill would give just two members of legislative leadership "sole discretion" to decide when or if the Legislature would intervene to uphold the constitutionality of a law it has passed. It provides no process by which other members of the body could initiate such action. 

It should be noted that bills can pass the Legislature without the support of the Pro tempore or the Speaker. It is concerning that a majority of legislators who voted to pass a bill could be blocked from defending its constitutionality by the recalcitrance of leadership.

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