Judges make losers out of half the lawyers who argue in front of them, and many of those losers walk away thinking the outcome was wrong. So it is hard to predict with certainty how the Idaho Supreme Court will view a lawsuit aimed at allowing the grocery-tax repeal bill to become law despite the gubernatorial veto from Alien Replicant Butch Otter.
But mark these words: There’s a strong likelihood that the five justices of Idaho’s highest court will rule the governor’s veto came too late under the state constitution. Therefore, the bill that exempts food, bought at the grocery store, from the sales tax became law without action from Otter.
Here’s why Idaho Falls attorney Bryan Smith’s lawsuit on behalf of 30 state lawmakers should prevail: The state constitution is worded plainly. It gives the governor an option to sign, veto or allow a bill to become law without his signature. Any of those choices must come within 10 days following the adjournment of the Legislature. Otter had 10 days to veto the grocery tax repeal bill; he did so on Day 12.
In 1978, the state Supreme Court ruled as timely a bill that Gov. Cecil Andrus had vetoed outside of the 10-day window. The Court claimed that the 10-day clock started ticking the moment a bill landed on Andrus’ desk, even though the Idaho Constitution says no such thing.
Writing for the three-justice majority, Andrus-appointee Stephen Bistline reasoned the court had a choice “between a construction of our constitutional language which would provide a definite amount of time for gubernatorial consideration of bills and one which would have the effect of allowing the legislature to determine the amount of time allowed to a governor, severely limiting it if the legislature so chose.”
In other words, Bistline contended that if the clock were to start ticking from adjournment (as the constitution says it does) the Legislature could merely take its sweet time delivering legislation to the governor for his consideration. It might even be possible to wait a dozen days for the Legislature to deliver a bill to the governor, denying him the ability to act and causing legislation to become law without gubernatorial action. The ruling acknowledges the wording of the constitution but then substitutes that wording for the court’s perceived “better” wording in order to prevent the Legislature from, in essence, delaying delivery of a bill so it becomes law.
More compelling is the minority view rendered in that nearly four-decade-old case: “The majority embarks upon a hypothetical situation which presents an abstract problem, but is not warranted by the facts,” opined Justice Charles Donaldson, who noted the legislation in question arrived in Andrus’ office in a timely manner. “There is no reason to speculate as to what would happen were presentment delayed until after ten days from adjournment because that has not happened.”
Similar circumstances surround the grocery tax bill. The Idaho Legislature adjourned March 29, and the bill arrived on the governor’s desk March 31. Otter had plenty of time to render a timely decision on the grocery tax, and he failed to do so. That means the repeal of the grocery tax must become law.
The 1978 court was plainly wrong in its interpretation of the plainly-written wording of the state constitution. If the people of Idaho decide the governor needs more time to weigh his options, that’s a choice the voters of Idaho can make through a constitutional amendment. Whether the governor should have more time is not a decision to be made through the imaginations of court justices who wish the state’s constitution would say something it does not. And, if the 2017 justices of the state Supreme Court reach the same conclusion, taxpayers of Idaho will see the cost of groceries drop by 6 percent under the law Otter tried -- and failed -- to veto.