Court fight coming over grocery tax veto



There’s a court fight brewing over Gov. C.L. “Butch” Otter’s veto of a bill eliminating the sales tax on groceries.

Otter vetoed the bill, which had won veto-proof majorities in both the House and Senate, on Tuesday. Since the Legislature had adjourned for the year, there was no possibility for the House and Senate to attempt veto overrides.

But Wednesday in the law office of Idaho Falls attorney and ultraconservative Republican activist Bryan Smith, Rep. Ron Nate, R-Rexburg, and Rep. Bryan Zollinger, R-Idaho Falls, held a news conference to announce that they believe the veto came too late, after a constitutional 10-day deadline had passed. Grocery tax repeal, they argued, is now the law of the land, and will go into effect in 2018.

“Unfortunately for the governor, but fortunately for Idaho citizens, the veto came too late,” Nate said.

During the session, the governor has five days to veto a bill and return it to the Legislature following passage of a bill. But if the Legislature adjourns before that window runs out, as was the case with the bill repealing the grocery tax, the governor has 10 days to veto the bill.

The disagreement is over when the clock starts ticking.

Otter’s office and Secretary of State Lawrence Denney’s office both said immediately following the news conference that the Supreme Court had already spoken on the matter. Deputy Secretary of State Tim Hurst said Denney has every intention of certifying Otter’s veto.

Told of the secretary of state’s position, Smith and Zollinger both said they plan to file a petition for a writ of mandamus with the Idaho Supreme Court by early next week at the latest. If they win, the veto could be reversed. If they lose, the veto stands.

It’s the second time a gubernatorial veto has come under legal scrutiny in recent years.

In 2015, Otter vetoed a bill repealing the authorization for “historical” or “instant racing.” But, as the Post Register reported at the time, constitutional experts immediately raised the question of whether Otter’s veto message had been returned to the Senate after of the Idaho Constitution’s deadline. The precise issue had never been litigated in the court, former Secretary of State Ben Ysursa said at the time, but a plain reading of the Constitution indicated the veto was invalid. Several other constitutional experts concurred.

Ultimately, the veto was ruled to have come too late, and instant racing came to an end.

So, Nate and Zollinger’s objection raises the possibility that Otter could have flubbed two vetos in three years.

But this case is much different, partly because all sides recognize that the Idaho Supreme Court has already ruled on the issue of when the 10-day clock starts for vetos that occur after the Legislature has adjourned sine die. Precisely that issue was decided in the 1978 case of Cenarrusa v. Andrus, when the Supreme Court ruled 3-2 that the 10-day clock starts ticking once the governor is presented with the bill rather than when the Legislature adjourns for the year.

But Nate and Zollinger’s position is that a plain reading of the Constitution indicates the clock should start ticking on the day of adjournment.

In the case of the grocery tax repeal, the bill was communicated to the governor two days after the Legislature adjourned sine die. So Zollinger and Nate’s position is that Otter had two fewer days to veto the bill than he thought he did.

Zollinger and Nate’s position is that Cenarussa v. Andrus case was decided wrongly, based on judicial activism rather than a strict textual reading of the state Constitution. They pointed out that two of the justices in the case had been appointed by Gov. Cecil Andrus, a Democrat. And they see in the current Supreme Court bench a group of justices who will be willing to overturn that precedent in favor of a strict textual reading.

To bolster that view, Smith and Zollinger pointed to the 2016 ruling in Hoffard v. Shappard, a 3-2 decision which overturned long-standing precedent regarding the award of attorneys fees on the basis of a textual reading of state code. That, the two argued, indicates a court that is willing to reverse precedent in favor of a simple textual reading.

Zollinger said at least 15 members of the House, hopefully more, will join the suit.

Reporter Bryan Clark can be reached at 542-6751.