Coeur d'Alene Tribe v. Lawerence Denney

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43169
IN THE MATTER OF THE VERIFIED )
PETITION FOR WRIT OF MANDAMUS. )
-------------------------------------------------------- )
COEUR D’ALENE TRIBE, ) Boise, August 2015
)
Petitioner, ) 2015 Opinion No. 88
)
v. ) Filed: September 10, 2015
)
LAWERENCE DENNEY, Secretary of State ) Stephen W. Kenyon, Clerk
of the State of Idaho, in his official capacity, )
)
Respondent. )
Petition for Writ of Mandamus.
The Tribe’s petition for a writ of mandamus is granted.
Ferguson Durham, PLLC, Boise, for petitioner. Deborah A. Ferguson argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Brian
Kane argued.
David H. Leroy, Boise, argued for amicus curiae Coeur d’Alene Racing, Ltd.
Greener Burke, Shoemaker Oberrecht, P.A., Boise, for amicus curiae
Intermountain Racing and Entertainment, LLC.
David F. Hensley and Cally A. Younger, Boise, for amicus curiae Honorable C.L.
“Butch” Otter, Governor of Idaho.
Barker Rosholt & Simpson, LLP, Boise, for amicus curiae Treasure Valley
Racing, LLC.
_________________________________
BURDICK, Justice
This case comes before this Court pursuant to a Writ of Mandamus. The Coeur d’Alene
Tribe (Tribe) petitioned the Court for a Writ of Mandamus compelling the Secretary of State to
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certify Senate Bill 1011 (S.B. 1011) as law. The Tribe alleges that the Governor did not return
his veto for S.B. 1011 within the five-day deadline under the Idaho Constitution. The Tribe
argues that because the veto was untimely, the bill automatically became law and the Secretary
of State had a non-discretionary duty to certify it as law. We agree.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2015, both the Senate and the House of Representatives passed S.B. 1011
with supermajorities. S.B. 1011 had one purpose: to repeal Idaho Code section 54-2512A, a law
which allowed wagering on “historical” horse races. In the afternoon of March 30, 2015, the bill
was presented to the Governor, who then had five days to veto the bill pursuant to the Idaho
Constitution.
On April 2, 2015, the legislature adjourned temporarily for the Easter weekend. Around
that time, the media reported that the Governor intended to wait until Monday, April 6, to
announce his decision on whether to sign S.B. 1011 into law.
The Senate reconvened Monday, April 6, 2015. That morning, the Governor returned
S.B. 1011 and a veto message 1 to the Senate President Pro Tempore’s office, along with a letter
addressed to the President of the Senate. The President Pro Tempore and two other Senate
officials filed official letters in the Senate Journal regarding S.B. 1011. The President Pro
Tempore’s letter notified the Senate that the Governor returned the veto to the President Pro
Tempore’s office at 8:52 a.m. on April 6, 2015, which was past the constitutional deadline. The
letter further stated that “such deadline having passed, the provisions of Article IV, § 10 of the
Idaho Constitution and Idaho Code § 67-504 and 505 appear to apply.”
The Secretary of the Senate also filed a letter indicating that the Governor failed to return
S.B. 1011 to the Secretary of the Senate’s Office by the April 4 deadline. That letter also
indicated that the Governor’s office returned other communications to the Secretary of the
Senate’s Office over the weekend, but nothing relating to S.B. 1011.
Finally, Michelle Stennett, the Senate Minority Leader, filed a letter with the Secretary of
the Senate, which also advised the Senate that the Governor’s veto of S.B. 1011 was untimely
and invalid. Stennett’s letter stated that “[t]o the best of my knowledge no earlier return was
1
The veto message was dated April 3, 2015, but there is nothing in the record to indicate that it was returned to the
Senate President or any other Senate official at any time before April 6, 2015.
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attempted or effectuated to the Senate, nor was anyone asked to receive such a return at an earlier
time.”
Despite these notifications, the President of the Senate proceeded to call a vote during the
April 6 session to override the veto. A majority, but less than two-thirds of the Senate, voted to
override the veto. Consequently, the President of the Senate sustained the Governor’s veto and
declared that S.B. 1011 failed to become law.
The Tribe, believing that S.B. 1011 automatically became law when the Governor failed
to return the veto within five days, subsequently requested the Secretary of State to certify it as
law. The Secretary of State refused, asserting that he lacked the authority to certify the bill as a
law because “the requisite gubernatorial authentication under Idaho Code § 67-505 [was]
absent.” The Tribe then petitioned this Court for a Writ of Mandamus ordering the Secretary of
State to certify S.B. 1011, deposit it with the laws of the State, and assign it a chapter number in
the Idaho Code. The Governor, Treasure Valley Racing, LLC, Intermountain Racing and
Entertainment, LLC, and Coeur d’Alene Racing, Ltd. all filed amicus briefs with this Court
opposing the petition for a writ of mandamus.
II. STANDARD OF REVIEW
Article V, section 9 of the Idaho Constitution and Idaho Code section 1-203 confer
original jurisdiction on this Court to issue writs of mandamus. Pursuant to Idaho Code section 7-
302, a writ of mandamus “may be issued by the Supreme Court . . . to any . . . person, to compel
the performance of an act which the law especially enjoins as a duty resulting from an office,
trust or station.” This Court has repeatedly held that mandamus is not a writ of right and the
allowance or refusal to issue a writ of mandate is discretionary. Hunke v. Foote, 84 Idaho 391,
398, 373 P.2d 322, 325 (1962); Kerley v. Wetherell, 61 Idaho 31, 48, 96 P.2d 503, 511 (1939);
Reynard v. City of Caldwell, 53 Idaho 62, 81, 21 P.2d 527, 534 (1933); Logan v. Carter, 49
Idaho 393, 403, 288 P. 424, 427 (1930); State v. Malcom, 39 Idaho 185, 190, 226 P. 1083, 1085
(1924); State v. Banks, 37 Idaho 27, 34, 215 P. 468, 470 (1923).
In Utah Power & Light Co. v. Campbell, 108 Idaho 950, 953, 703 P.2d 714, 717 (1985),
this Court stated that “[m]andamus will lie if the officer against whom the writ is brought has a
‘clear legal duty’ to perform the desired act, and if the act sought to be compelled is ministerial
or executive in nature.” If the act sought to be compelled of the public officer is ministerial, the
Court must find the party seeking the writ has a clear legal right to have the act performed. Kolp
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v. Bd. of Tr. of Butte Cnty. Joint Sch. Dist. No. 111, 102 Idaho 320, 323, 629 P.2d 1153, 1156
(1981). Furthermore, Idaho law requires that a writ must be issued in those cases where there is
not a plain, speedy, and adequate remedy in the ordinary course of law. I.C. § 7-303.
III. ANALYSIS
The Tribe seeks a writ of mandamus from this Court compelling the Secretary of State to
certify S.B. 1011 as law. There are several discrete issues involved here. First, we must address
the amici’s arguments that the Tribe does not have standing in this matter. Second, we must
determine whether the Governor’s veto was valid. Third, if the Governor’s veto was invalid, we
must then determine whether the Secretary of State has a non-discretionary duty to certify S.B.
1011 as law. Fourth, we must determine whether a writ of mandamus is an appropriate remedy in
this case. Finally, the Tribe requests attorney fees on this writ of mandamus. We will address
each issue in turn below.
A. This Court will decide this matter.
“Concepts of justiciability, including standing, identify appropriate or suitable occasions
for adjudication by a court.” State v. Philip Morris, Inc., No. 41679, 2015 WL 4757859, at *7
(Idaho July 23, 2015). Standing focuses directly on whether a particular interest or injury is
adequate to invoke the protection of judicial decision. Id. When determining whether a party has
standing, this Court has looked to United States Supreme Court decisions for guidance. Koch v.
Canyon Cnty., 145 Idaho 158, 161, 177 P.3d 372, 375 (2008). In fact, the origin of Idaho’s
standing is a self-imposed constraint adopted from federal practice, as there is no “case or
controversy” clause or an analogous provision in the Idaho Constitution as there is in the United
States Constitution. See U.S. Const. art. III. § 2, cl. 1. Consequently, in a recent decision from
this Court, we set forth the test for standing pursuant to United States Supreme Court
jurisprudence:
[T]o establish standing a plaintiff must show (1) an injury in fact, (2) a sufficient
causal connection between the injury and the conduct complained of, and (3) a
like [lihood] that the injury will be redressed by a favorable decision. An injury
sufficient to satisfy the requirement of an injury in fact must be concrete and
particularized and actual or imminent, not conjectural or hypothetical.
Philip Morris, Inc., 2015 WL 4757859, at *7 (citations omitted)(internal quotation marks
omitted).
In that opinion, we also clarified that the “allege or demonstrate” standard so often
repeated in our opinions is an incomplete statement of requirements for standing. Id. We
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explained that consistent with the federal standard, standing “requires a showing of a ‘distinct
palpable injury’ and ‘fairly traceable causal connection between the claimed injury and the
challenged conduct.’ ” Id. (quoting Young v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157,
1159 (2002)). This Court has defined palpable injury as “an injury that is easily perceptible,
manifest, or readily visible.” Id.at *8. Moreover, the injury cannot be one suffered alike by all
citizens in the jurisdiction. Troutner v. Kempthorne, 142 Idaho 389, 391, 128 P.3d 926, 928
(2006).
The Tribe alleges standing in this proceeding on the basis that, as a lead proponent of
S.B. 1011, it has a concrete and discrete interest in this case and contends that it has been injured
by the Secretary of State’s refusal to certify the bill as law. The Tribe claims that it is particularly
harmed due to its distinct rights under the Indian Gaming Regulatory Act (“IGRA”). See 25
U.S.C. § 2701, et seq. Although the Tribe has established a unique and protected right towards
gaming in the state, it fails to present sufficient facts as to how S.B. 1011 impacts the Tribe’s
ability to benefit from gaming going forward. The Tribe correctly concedes that this Court “has
never held that increased competition alone is sufficient to confer standing.” Martin v. Camas
Cnty. ex rel. Bd. Comm’rs, 150 Idaho 508, 514, 248 P.3d 1243, 1249 (2011). Without providing
facts to show actual or imminent losses of profit or rights greater than the average citizen, the
Tribe has not demonstrated a “distinct and palpable” injury sufficient to confer standing.
Troutner, 142 Idaho at 391, 128 P.3d at 928. However, we may nonetheless exercise jurisdiction
over this writ.
This Court has original jurisdiction “to issue writs of mandamus, certiorari, prohibition,
and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate
jurisdiction.” Idaho Const. art. V, § 9. We have recognized that this Court may “exercise
jurisdiction to review a petition for extraordinary relief where the petition alleges sufficient facts
concerning a possible constitutional violation of an urgent nature.” Idaho Watersheds Project v.
State Bd. of Land Comm’rs, 133 Idaho 55, 57, 982 P.2d 358, 360 (1999) (granting a writ of
prohibition for a House Joint Resolution that proposed to amend the Idaho Constitution); Keenan
v. Price, 68 Idaho 423, 429, 195 P.2d. 662, 664 (1948) (accepting jurisdiction because of the
“importance of the question presented” and the “urgent necessity for immediate determination”).
Under such circumstances, we have held that it is not necessary that a citizen show a special
injury to himself or his property to entitle him to proceed by mandamus to compel public officers
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to perform non-discretionary ministerial duties. See Beem v. Davis, 31 Idaho 730, 733, 175 P.
959, 960 (1918).
Beem is consistent with this Court’s willingness to relax ordinary standing requirements
in other cases where: (1) the matter concerns a significant and distinct constitutional violation,
and (2) no party could otherwise have standing to bring a claim. See Koch, 145 Idaho at 162, 177
P.3d at 376; see also State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 217, 52 P.2d 141,
143 (1935). For instance, in Koch, this Court held that Canyon County taxpayers had standing to
litigate whether Canyon County had incurred indebtedness or liability in violation of article VIII,
section 3, of the Idaho Constitution. 145 Idaho at 162, 177 P.3d at 376. The Court recognized
that if it held otherwise, it would essentially “be deleting that provision from the Constitution”
because no party would have standing to enforce it. Id.
If the Tribe is correct in its allegations, this case concerns a significant and distinct
constitutional violation. This Court has recognized:
The people of this state have reserved to themselves the constitutional right to
have all of their laws made in a certain mode, and have withheld from the
legislature the power to make laws in any other mode. Shall the legislature and
the judiciary connive together to overthrow this constitutional right? Do the
obligations of the official oath rest so lightly upon judicial officers that they may
obey those obligations or not, support the constitution or not, as they may deem
expedient or inexpedient? May they enforce the fundamental law or refuse to do
so at pleasure? If so, then constitutional government is in the last stages of
dissolution, and the people have no constitutional rights which must necessarily
be respected.
Cohn v. Kingsley, 5 Idaho 416, 445, 49 P. 985, 995 (1897). Consequently, this Court has insisted
upon strict adherence to the procedures outlined in our Constitution for enacting laws and in
exercising the veto power. See Cohn, 5 Idaho at 421–22, 49 P. at 986; Cenarrusa v. Andrus, 99
Idaho 404, 406–10, 582 P.2d 1082, 1084–88 (1978). Indeed, we have stated that the provisions
are mandatory and that it is the imperative duty of the legislature, and in this case, the executive
as well, to obey them. Cohn, 5 Idaho at 421–22, 49 P. at 986. The duty of supporting the
Constitution of the state “is imposed upon all public officers by the solemn obligations of the
official oath, which obligations cannot be discharged by disobeying, ignoring, and setting at
naught the plain provisions of the constitution, but only by obedience thereto.” Id. Where the
mandatory provisions of the constitution require certain things to be done in exercising the veto
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power and enacting laws, this Court must guard against violations of those constitutional
provisions.
The public has a significant interest in the integrity of Idaho’s democratic government,
and a writ of mandamus is a remedy by which public officials may be held accountable to the
citizens for their constitutional duties. If the Tribe does not have standing to bring this writ, the
question would then become, who does? Neither the members of the Senate, the Governor, nor
the Secretary of State appear ready or willing to challenge the constitutionality of the Governor’s
purported veto or of the Senate’s actions in this case. Thus, if the Tribe could not bring this writ,
there would be no one to enforce the important constitutional provisions involved in this case or
to ensure that the integrity of the law-making process is upheld. The legal question before the
court involves a fundamental constitutional provision regarding governmental structure and is a
matter over which this Court has original jurisdiction pursuant to article V, section 9 of the Idaho
Constitution. Such an interest is sufficient to compel an elected official to comply with a non-
discretionary constitutional duty through a writ of mandamus, and this Court may therefore
entertain the Tribe’s plea.
B. The Governor’s veto was invalid and S.B. 1011 automatically became law.
The Tribe asserts that the Governor’s attempted veto of S.B. 1011 was untimely.
Consequently, the Tribe argues that S.B. 1011 became law the moment the deadline for the veto
passed. Based on the plain language of the relevant constitutional and statutory provisions,
together with the undisputed and unambiguous facts in the Senate Journal, we agree.
1. Relevant constitutional and statutory provisions.
Idaho Constitution, article IV, section 10 addresses the Governor’s veto power. It
provides:
Every bill passed by the legislature shall, before it becomes a law, be
presented to the governor. If he approve, he shall sign it, and thereupon it shall
become a law; but if he do not approve, he shall return it with his objections to the
house in which it originated, which house shall enter the objections at large upon
its journals and proceed to reconsider the bill. If then two-thirds of the members
present agree to pass the same, it shall be sent, together with the objections, to the
other house, by which it shall likewise be reconsidered; and if approved by two-
thirds of the members present in that house, it shall become a law,
notwithstanding the objections of the governor. In all such cases the vote of each
house shall be determined by yeas and nays, to be entered on the journal. Any bill
which shall not be returned by the governor to the legislature within five days
(Sundays excepted) after it shall have been presented to him, shall become a law
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in like manner as if he had signed it, unless the legislature shall, by adjournment,
prevent its return, in which case it shall be filed, with his objections, in the office
of the secretary of state within ten days after such adjournment (Sundays
excepted) or become a law.
Idaho Const. art. IV, § 10 (emphasis added).
The Idaho Code provides further guidance with respect to the timeframe for returning a
bill during an adjournment and the consequences for the Governor’s untimely return of a bill.
Specifically, Idaho Code section 67-504 provides:
If, on the day the governor desires to return a bill without his approval and with
his objections thereto to the house in which it originated, that house has
adjourned for the day (but not for the session), he may deliver the bill with his
message to the presiding officer, clerk, or any member of such house, and such
delivery is as effectual as though returned in open session, if the governor, on the
first day the house is again in session, by message notifies it of such delivery, and
of the time when, and the person to whom, such delivery was made.
(emphasis added). Idaho Code section 67-505 then addresses the consequences should the
Governor fail to return a bill within the deadline:
Every bill which has passed both houses of the legislature, and has not been
returned by the governor within five (5) days, thereby becoming a law, is
authenticated by the governor causing the fact to be certified thereon by the
secretary of state in the following form:
‘This bill having remained with the governor five (5) days (Sundays excepted),
and the legislature being in session, it has become a law this .... day of ...., ....,’
which certificate must be signed by the secretary of state and deposited with the
laws in his office. Where the legislature by adjournment, prevents the return of a
bill, the governor, if he disapproves thereof, shall file the same, with his
objections, in the office of the secretary of state within ten (10) days after said
adjournment (Sundays excepted) or the same shall become a law.
(emphasis added).
2. Facts.
This Court has recognized that it may only look to the Senate Journal for the relevant
facts of official government acts regarding the passage of a bill into law. Brassey v. Hanson, 81
Idaho 403, 406, 342 P.2d 706, 707 (1959). Indeed, this Court has held:
‘The principle of law is settled beyond controversy that a court will not go
behind the journal of a legislature to ascertain what was done by that body. The
journal itself is conclusive, and, if the journal is incorrect, or improperly made up,
it is for the legislature itself to correct it, and not for the court.’
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Id. at 407, 342 P.2d at 708 (quoting Burkhart v. Reed, 2 Idaho 503, 511, 22 P. 1, 4 (1889) aff’d
sub nom. Clough v. Curtis, 134 U.S. 361 (1890)). Consequently, “this Court will take judicial
notice of public and private acts of the legislature and the legislative journals to determine
whether an act was constitutionally passed and for the purpose of ascertaining what was done by
the legislature.” Worthen v. State, 96 Idaho 175, 176, 525 P.2d 957, 958 (1974). The recitals of
the Senate Journal of the Idaho Senate for the First Regular Session of the Sixty-Third
Legislature are therefore conclusive and cannot be contradicted. We will review those recitals to
determine whether the Governor’s veto in this case was effective.
As a preliminary matter, the amici argue that this Court’s review of the Senate Journal
should be limited to the facts that the Constitution requires be included in the Senate Journal.
Specifically, the amici assert that this Court should look only to the record of the proceedings
and the yeas and nays, which is what Idaho Constitution article III, section 13 directs be included
in the Journal. Thus, the amici argue that this Court’s review of the Journal should be limited to
the vote the Senate took on the veto and that the result of that vote is binding on this Court. To
support this argument, the amici rely on Whaley v. Independence Cnty., 205 S.W.2d 861 (Ark.
1947). However, Whaley is inapposite here because that case dealt with conflicting facts in
official records from two different branches of government. Here, however, there are no
conflicting facts in the Senate Journal or in any other official record from the legislative or
executive branches of our government. Rather, the facts in the Senate Journal are clear,
unambiguous, and uncontroverted.
Furthermore, there is no case law in Idaho to suggest that this Court’s review of facts
from Senate Journals has been limited to the facts the Idaho Constitution requires to be included
in them. This Court has expressly declined to limit its review of legislative journals to those facts
required by the Constitution. Cohn, 5 Idaho at 446, 49 P. at 996. In Cohn, this Court reasoned
that limiting the journal to the facts the Constitution expressly requires to be entered in it “would
dispense entirely with the office of the journal” and that “[t]he idea is not in accord with the
spirit, and is opposed to the letter, of our constitution.” Id. Instead, this Court explained that
under the Constitution, each house is required to keep a journal of its proceedings, which means
that “the journal shall show all of the proceedings of the house, and all the steps taken in the
passage of every bill.” Id. at 426, 49 P. at 988. This Court went on to state:
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By reason of this provision the journal becomes, not only the best evidence, but
the exclusive evidence, of what was done by the house keeping such journal, and
courts must impute to the record and statements absolute verity. The recitals in the
journal are conclusive, and cannot be contradicted. In the passage of a bill by
either house, the journal of such house must show affirmatively that all of the
requirements of the constitution were complied with by such house.
....
The object of the journals, principally, is to enable the people to ascertain that any
and all laws were enacted in the manner required by the constitution, so as to
determine whether such was constitutionally passed, and therefore valid and
binding. If we refuse to go back of the enrolled bill,—close our eyes and ears to
the evidence which the legislature furnishes, and is required by the constitution to
furnish,—the object of these constitutional provisions may be wholly defeated.
Id. at 430, 447, 49 P. at 988, 996 (citations omitted).
Consequently, our case law has indicated, without distinguishing between facts that are
constitutionally required and those that are not, that “it is the imperative duty of the court, when
the issue is before it, to look to the journals of the legislature, and see if, in passing the statute in
question, [the] legislature [] proceeded in the manner provided by the Constitution.” Id. at 421,
49 P. at 986. Moreover, where the facts contained in a legislative journal are clear, unambiguous,
and uncontroverted, as they are here, we see no reason why we should be constrained to consider
only those facts the Constitution requires, particularly where there has been a potential
constitutional violation. Thus, this Court will focus on the entirety of the Senate Journal and
consider all of the uncontroverted facts contained therein to ascertain what was done by the
legislature and determine whether the Governor’s veto withstands this constitutional challenge.
See Worthen, 96 Idaho at 176, 525 P.2d at 958. Accordingly, the relevant facts are set forth
below.
The Judiciary and Rules Committee reported that S.B. 1011 was delivered to the Office
of the Governor at 4:54 p.m. on Monday, March 30, 2015. On Thursday, April 2, the legislature
adjourned for the Easter weekend, with official business to resume Monday, April 6 at 1:30 p.m.
The Senate Journal then reflects that the Governor returned S.B. 1011 with his veto
message to the Senate on Monday morning, April 6. This is reflected by three letters—all of
which were addressed to the Senate President—that were entered in the Senate Journal Monday
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afternoon once the Senate had reconvened. 2 The first letter was from the President Pro Tempore,
and it stated:
This communication reflects that Senate Bill 1011 was returned to my
office at 8:52 am on April 6, 2015. To the best of my knowledge no earlier return
was attempted to my office, nor was I asked to receive such a return at any earlier
time. The return of S 1011 being due at 4:54 pm on April 4, 2015 and such
deadline having passed, the provisions of Article IV, § 10 of the Idaho
Constitution and Idaho Code § 67-504 and 505 appear to apply.
The second letter, from the Secretary of the Senate, stated:
This communication reflects that S 1011 was not returned to my office by
4:54 p.m. on April 4, 2015 in my capacity as the Secretary of the Senate. Other
correspondence of legislation were slipped under my door and returned in
accordance with Article IV, § 10 and Idaho Code §§ 67-504 & 505.
Correspondence of legislation is routinely returned to me in this fashion. To the
best of my knowledge no earlier return was attempted to my office, nor was I
asked to receive such a return at any earlier time.
Finally, the Senate Minority Leader submitted a letter, which stated:
This communication reflects that Senate Bill 1011 was returned to the
Senate Pro Tem’s office at 8:52 am on April 6, 2015. To the best of my
knowledge no earlier return was attempted or effectuated to the Senate, nor was
anyone asked to receive such a return at any earlier time. The return of S1011,
being due at 4:54 pm on April 4, 2015, and such deadline having passed, S1011 is
law pursuant to the provisions of Article IV, Section 10 of the Idaho Constitution
and Idaho Code Sections 67-504 and 67-505.
There were also messages 3 from the Governor read into the Senate Journal on April 6,
2015, one of which was a letter dated April 3, 2015, and addressed to the Senate President. That
letter stated, in relevant part: “I hereby advise you that I have returned without my approval,
disapproved and vetoed, the following Senate Bill, to wit: S 1011 within the time limited by law,
the same having arrived in the Office of the Governor at the hour of 4:54 p.m. on March 30,
2
The letters were never actually read aloud during that legislative session. The video recording of that session
reveals that the Secretary of the Senate began to read each letter, but for each one, a member of the Senate
interrupted the Secretary of the Senate only a few words in and asked for unanimous consent that further reading of
the letters be “dispensed with” on the basis that the “correspondence has been provided to each of [the Senators].”
Noting there were no objections, the President of the Senate ordered the reading of each of the letters be dispensed
with. Notably, although the same member of the Senate asked unanimous consent to dispense with the reading of the
Governor’s letter as well, his request was not made until the Secretary of the Senate read the most crucial part of the
Governor’s letter. Specifically, the Secretary of the Senate read the introduction, which stated: “I hereby advise you
that I have returned without my approval, disapproved and vetoed, the following Senate Bill, to wit: S 1011 within
the time limited by law . . . .” Consequently, based on the video footage alone, it would appear as though there were
no deficiencies with the Governor’s veto of S.B. 1011 and that the bill failed to become law.
3
All but one of these messages concerned bills not relevant to this proceeding.
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2015.” Although the Governor’s letter states that he returned the veto within the time limited by
law, there is nothing in the letter to indicate the exact date or time when the veto was returned.
After the Governor’s letter was read into the Senate Journal, the Senate took a vote on
whether S.B. 1011 should become law notwithstanding the Governor’s veto. A subsequent roll
call resulted in 19 yeas and 16 nays. Because less than two-thirds of the Senate voted in the
affirmative, the Senate President declared that the Governor’s veto was sustained and that S.B.
1011 failed to become law. With the foregoing facts and law in mind, the next step is to
determine whether the Governor’s veto was valid.
3. Analysis.
As mentioned above, the Tribe argues that the facts contained in the Senate Journal are
uncontroverted and establish that S.B. 1011 is law. The Tribe contends that S.B. 1011
automatically became law when the Governor failed to return his veto within the five-day
deadline and, consequently, the Senate’s subsequent vote on the veto was a nullity and had no
effect on the bill becoming law. Conversely, the amici argue that the Senate Journal conclusively
establishes that S.B. 1011 did not become law because the Senate took a vote on the Governor’s
veto and none of the Senators objected to treating the veto as timely.
This Court has recognized that “where a statute or constitutional provision is plain, clear,
and unambiguous, it ‘speaks for itself and must be given the interpretation the language clearly
implies.’ ” Verska v. St. Alphonsus Reg’l. Med. Ctr., 151 Idaho 889, 895, 265 P.3d 502, 508
(2011) (quoting Moon v. Inv. Bd., 97 Idaho 595, 596, 548 P.2d 861, 862 (1976)). This Court
reviews the provision’s language as a whole, considering the meaning of each word, so as not to
render any word superfluous or redundant. BHC Intermountain Hosp., Inc. v. Ada Cnty., 150
Idaho 93, 95, 244 P.3d 237, 239 (2010). Thus, the starting point in this Court’s interpretation of
the relevant constitutional and statutory provisions is the plain language.
The plain language of Idaho Constitution, article IV, section 10, requires the Governor to
return his veto to the house in which the bill originated—in this case, the Senate—within five
days of when the bill was presented to him. However, because the Senate had temporarily
adjourned for the Easter weekend, Idaho Code section 67-504 offered an alternative method for
the Governor to return the bill. Under Idaho Code section 67-504, the Governor may have
alternatively delivered the vetoed bill with his message to “the presiding officer, clerk, or any
member of such house” within the five-day period rather than returning it to the Office of the
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Senate. I.C. § 67-504. However, that section also provides that such delivery is effective as
though the bill was returned in open session, “if the governor, on the first day the house is again
in session, by message notifies it of such delivery, and of the time when, and the person to
whom, such delivery was made.” I.C. § 67-504 (emphasis added). Thus, in this case, the
Governor had two options:
1. Return the veto with his message to the Office of the Senate within five days after
S.B. 1011 was presented to him; OR
2. Return the veto with his message by delivering it to the presiding officer, clerk, or
any member of the Senate within five days after S.B. 1011 was presented to him, and
send a message to the Senate the first day it reconvened after the Easter weekend
notifying it of the time and person he delivered the veto to.
Under either option, the Governor was required to “return” his veto to an appropriate
figure within the allotted five-day timeframe. The Constitution does not define the term “return,”
but Webster’s American Dictionary of the English Language defines “return” as “to bring, carry,
or send back; as, to return a borrowed book; to return a hired horse,” and, more specifically,
“[i]n law, the rendering back or delivery . . . to the proper officer or court . . . .” N. Webster, An
American Dictionary of the English Language (1828). Furthermore, we have held that “the act of
returning [the bill] with his objections is the veto of the bill.” Cenarrusa, 99 Idaho at 409, 582
P.2d at 1087 (emphasis added). Therefore, we have previously indicated that returning a bill
requires the overt act of physically delivering the bill to the appropriate official.
This interpretation is supported by the language in Idaho Code section 67-504, which
states that the Governor may return a bill by “delivering” it to one of several officials listed
under that provision when the house has temporarily adjourned. Delivery suggests relinquishing
control over the bill by physically handing it over to one of the named officials. Indeed,
Webster’s Dictionary of the English Language defines “deliver” as “[t]o give, or transfer; to put
into another[’]s hand or power; to commit; to pass from one to another. . . . So we say,
to deliver goods to a carrier; to deliver a letter; to deliver possession of an estate.” N. Webster,
An American Dictionary of the English Language (1828).
Thus, the plain meaning of “return,” this Court’s analysis in Cenarrusa, and our statutory
provision dealing with the return of a bill during adjournment support the conclusion that the
word “return” means that the bill must be placed into the actual physical possession of the
13
appropriate office or officer to effectuate the return. Consequently, we conclude that for purposes
of Idaho Constitution, article IV, section 10, and Idaho Code section 67-504, “return” means
relinquishing control and physically delivering the veto to an official to whom the Governor is
authorized under those provisions to return the veto.
The unambiguous and uncontradicted facts in the Senate Journal indicate that the
Governor’s veto failed under both the Idaho Constitution and Idaho Code section 67-504. First,
despite the Governor’s veto message bearing the date of April 3, there is nothing in the Senate
Journal to indicate that the vetoed bill was physically returned to the Office of the Senate on or
before the April 4 deadline. Instead, the letters outlined above tell a different story. In fact, two
of the letters specifically state that S.B. 1011 was returned to the President Pro Tempore’s office
at 8:52 A.M. on Monday, April 6, 2015. Further, as the Tribe noted in oral argument, the
Governor only received one original copy of the bill, and that copy was returned to the President
Pro Tempore’s office on Monday, April 6, 2015. The Secretary of State and the amici do not
point to any facts in the Senate Journal—other than the Governor’s letter that was dated April 3,
2015—evidencing an earlier return. Thus, the uncontroverted facts conclusively establish that the
Governor did not physically return the veto to the Office of the Senate within the five-day period
as the Constitution requires.
The Governor’s veto also fell short of satisfying Idaho Code section 67-504’s
requirements. Indeed, the Senate Journal does not reflect that the Governor returned the bill to
any one of the listed officials at any time before April 6, 2015. Furthermore, the Senate Journal is
devoid of a message notifying the Senate of the time and the person to whom the Governor
returned the veto within the five-day deadline. 4 In sum, the Senate Journal is absent any
4
Interestingly, a newspaper article from the Coeur d’Alene Press indicated that the President Pro Tem saw the veto
on April 3, 2015, but never took possession of it. Specifically, the article stated:
Idaho Senate President Pro Tem Brent Hill said he saw the controversial SB 1011 veto on April 3,
but did not take possession of the bill. Sen. Hill, R-Rexburg, said the governor had called to
inform him that he intended to veto the bill on April 3, but he wasn’t going to release that
information until April 6.… Hill said after the phone call, he went to the governor’s office later
that afternoon to make sure that the press wouldn’t have access to the veto over the Easter
weekend. “It was about 3:30 (p.m.) on Friday, and I went down to his office to determine if the
veto was a public record or not,” he said, adding he was assured by Gov. Butch Otter’s chief of
staff that the Senate would not read it in the papers over the weekend. “He pulled it out of a file in
his office and showed me that it had been vetoed.” But, Hill said, he didn’t take possession of the
document. “Actually, I didn’t know the governor had to deliver that to the Senate at that time
either,” Hill said. “Neither one of us did.”
14
indication that the bill was returned to an official listed in Idaho Code section 67-504 before the
April 4 deadline, or of a message reflecting such timely delivery. Thus, the Governor’s veto was
not effective under Idaho Code section 67-504.
The Constitution is clear on the effect of a veto that is not returned within five days:
“Any bill which shall not be returned by the governor to the legislature within five days
(Sundays excepted) after it shall have been presented to him, shall become a law in like manner
as if he had signed it . . . .” Idaho Const. art. IV, § 10. Thus, the Constitution makes clear that the
moment the deadline has passed for the return of a bill, the bill automatically becomes law. The
Secretary of State, however, contends that the Governor must authenticate the bill before it
becomes law. This argument is unavailing. Nothing in the Constitution suggests that the
Governor must take steps to authenticate a bill that was not returned to the legislature within five
days after presentment. Indeed, while Idaho Constitution, article IV, section 10 requires the
Governor to sign and return a bill that he approves, there is no such requirement where the
Governor fails to return the bill to the legislature within the five-day deadline. Instead, the
Constitution states that bills not returned by the Governor within the deadline become law as if
the Governor had signed it. Thus, under the Constitution, there are two ways a bill may be
authenticated: (1) through the Governor’s signature; or (2) through a non-veto, in which case
authentication is automatic.
Furthermore, an analysis of Idaho Code section 67-505’s plain language also reveals that
when the Governor fails to veto a bill within five days after presentment, no further action is
required to authenticate the bill. Indeed, Idaho Code section 67-505 explicitly states that a bill
that “has not been returned by the governor within five (5) days, thereby becoming a law, is
authenticated by the governor causing the fact to be certified thereon by the secretary of state . . .
.” (emphasis added). In contrast, Idaho Code section 67-503 provides that where the legislature,
through reconsideration, passes a bill over the Governor’s veto, the bill “must be authenticated as
having become a law by a certificate indorsed thereon, or attached thereto” in a form specified
by the statute. Thus, while authentication under Idaho Code section 67-503 requires further
action by the Governor, no further action is required to authenticate a bill under Idaho Code
section 67-505. In sum, both the Constitution and Idaho Code section 67-505 make clear that the
Jeff Selle, Official Recalls Veto Details, CDAPress.com (May 2, 2015), available at
http://www.cdapress.com/news/political/article_5b891f7b-cabf-5e5e-b2b3-b1e5fe0d129c.html.
15
moment the deadline has passed for the return of a bill, the bill is automatically authenticated and
becomes law with no further action required by the Governor or any other official.
Here, the uncontroverted facts in the Senate Journal indicate that the Governor did not
return S.B. 1011 until Monday, April 6, 2015. Therefore, S.B. 1011 automatically became law
with no further action required by the Governor. There is nothing in the Constitution granting the
Governor, the Senate, or any other official the power to disregard the untimely return of S.B.
1011 or to change the fact that S.B. 1011 became law. Instead, this Court has recognized that
constitutional provisions “are mandatory, and it is the imperative duty of the legislature to obey
them,” and that the duty of supporting the constitutional provisions “is imposed upon all public
officers by the solemn obligations of the official oath, which obligations cannot be discharged by
disobeying, ignoring, and setting at naught the plain provisions of the constitution, but only by
obedience thereto.” Cohn, 5 Idaho at 421, 49 P. at 985. Consequently, this Court has held that the
requirements of the Constitution must be strictly adhered to and the Senate cannot cure defects
through declarations, or in this case, a vote. Id. (stating that constitutional requirements regarding
the manner of passing bills must be strictly adhered to and that “the mere declaration by the
senate that ‘we concur in the house amendments’ does not answer the requirements of the
constitution.”). 5 “If either house can disregard one plain provision of the constitution, then it may
disregard all of its provisions, and the constitution, instead of being the fundamental law of the
land, is a mere sham, an idle mockery, a nullity.” Id. at 427, 49 P. at 988. Thus, the Senate’s
actions did not change the fact that S.B. 1011 automatically became law when the Governor
failed to return it within five days. Because the Governor’s veto was ineffective and S.B. 1011
automatically became law, the next question becomes whether the Secretary of State is required
to certify it as law.
5
The Court in Cohn further stated:
The constitution requires certain things to be done in connection with the passage of any and all
laws. It is true that the doing of these things is a matter of procedure. But by what right shall
anyone be permitted to say that any of the things required by the constitution to be done are
“insignificant,” and may therefore be omitted? … If the court must wink at one violation of the
constitution, it must, wink at other violations of it. If the court must approve one violation of the
constitution, it must, to be consistent, approve other violations of it. We must be subject to the
constitution, or else subject to the whims of those individuals who treat the sanctity of the
constitution as fictitious and its provisions as insignificant.
Id. at 431, 49 P. at 990.
16
C. The Secretary of State has a non-discretionary duty to certify S.B. 1011 into law.
The Secretary of State contends that he does not have the authority to certify S.B. 1011 as
law because he is not the “timekeeper” for legislation and deadlines. Instead, the Secretary of
State asserts that the originating house is the “timekeeper” and is therefore responsible for
monitoring and determining whether a veto is timely and therefore effective. The Secretary of
State, along with the amici, also argue that it would violate the separation of powers if (1) the
Secretary of State could override the Senate and determine that a veto was not timely and
ineffective despite the Senate treating the veto as though it was timely and effective; and (2) this
Court orders the Secretary of State to certify S.B. 1011 into law. These arguments must fail.
Although there is nothing in the Constitution or statutes to address whether the Secretary
of State may override a Senate’s vote on a veto that was untimely, Idaho Code section 67-505
resolves the issue. Indeed, under Idaho Code section 67-505’s plain language, when the
Governor does not timely return a bill with his objections, the bill automatically becomes law
with no further action required, and the Secretary of State has a non-discretionary duty to submit
the bill as law. Idaho Code section 67-505 states unequivocally that when a bill is not returned to
the Governor within five days, it becomes a law and “is authenticated by the governor causing
the fact to be certified thereon by the secretary of state . . . .” (emphasis added). Nothing in the
statute states that when the Governor returns a bill past the deadline the Secretary of State may
certify the bill as law. Rather, the statute makes clear that once the deadline passes, the bill
becomes law and is automatically authenticated by the Governor, which requires the Secretary of
State to certify the bill as law in the specified manner. The provision goes on to state that the
“certificate must be signed by the Secretary of State and deposited with the laws in his office.”
I.C. § 67-505. There is nothing discretionary about the Secretary of State’s role in the matter:
once the deadline has passed for the Governor’s return of a veto, the Secretary of State has a
non-discretionary duty to certify the bill as law.
In any event, the Secretary of State has acknowledged that he has a duty to certify S.B.
1011 as law if this Court enters an order “directing the Secretary of State to issue the certification
under Idaho Code § 67-505 that S. 1011 became law without the Governor’s signature.” Thus, it
is irrelevant whether the Secretary of State is a “timekeeper” for legislation and deadlines.
Instead, the relevant inquiry is simply whether this Court can order the Secretary of State to
17
certify S.B. 1011 as law. The Secretary of State and the amici argue that ordering the Secretary
of State to do so would violate the separation of powers.
The Idaho Constitution defines the roles of our three branches of government. Idaho
Constitution, article II, section 1 provides that “[t]he powers of the government of this state are
divided into three distinct departments, the legislative, executive and judicial; and no person or
collection of persons charged with the exercise of powers properly belonging to one of these
departments shall exercise any powers properly belonging to either of the others, except as in this
constitution expressly directed or permitted.”
Although it is true that one branch of government cannot usurp the powers of another
branch of government, one branch of government can certainly challenge the exercise of those
powers. It is axiomatic that each of the branches of government serves as a check against the
powers of the others to ensure that each branch is acting within the scope of its authority and
consistent with the Constitution. It is this Court’s responsibility to ensure that the Idaho
Constitution’s mandate that “[a]ll political power is inherent in the people. Government is
instituted for their equal protection and benefit . . . .” is zealously protected. Thus, “if a Governor
manipulates the veto power [] [this Court] will [] intervene to forestall such conduct.”
Washington State Legislature v. Lowry, 931 P.2d 885, 891–92 (Wash. 1997). Thus, it is this
Court’s duty to intervene to prevent the Governor and the Senate from circumventing the
Constitution and manipulating the veto power in this case.
Cenarrusa supports the conclusion that this Court may intervene to prevent the Governor
and the legislature from manipulating the veto power. In that case, the Governor was presented
with bills three days after the Legislature had adjourned sine die. Id. at 405–06, 582 P.2 at 1083–
84. On the eleventh day after adjournment, excluding Sundays, but on the eighth day after the
bills had been presented to the Governor, the Governor vetoed two bills by sending his
objections to the Secretary of State. Id. The Secretary of State refused to honor the vetoes on the
basis that they were untimely, proceeded to certify the bills as law, and then initiated legal action
to resolve the controversy. Id. This Court took the case and resolved the validity of the
Governor’s vetoes. That case is important in two respects. First, the case demonstrates that in the
past, the Secretary of State has acted consistently with the plain language of Idaho Code section
67-505 and disregarded a Governor’s veto and certified the bill as law when the veto was
untimely. Second, that case indicates that this Court can determine whether a veto was valid and
18
effective without violating the separation of powers. Although Cenarrusa did not specifically
address the separation of powers, the case demonstrates this Court’s willingness to rule on
whether an act of a co-equal branch has violated the Constitution.
Furthermore, this Court has stated:
There is no intention disclosed in the constitution to make the legislature
the exclusive judges of the constitutionality of its acts. The legislature must, in the
very nature of things, use its judgment, in the first instance, as to whether a
proposed action by it is constitutional or not, or whether it is acting in the manner
required by the constitution. But whether the legislature should make an honest
mistake, or perversely violate the constitution, the remedy for such violation
exists, nevertheless, and courts must refuse to aid and abet such violations of the
constitution. The court does this by refusing to recognize the validity of any act
passed in violation of the mandates of the constitution.
Cohn, 5 Idaho at 436, 49 P. at 992. Thus, this Court has recognized that it has the power to
review the legislature’s actions to ensure that they comply with constitutional requirements and
that it is this Court’s duty to remedy any violations. Consequently, it cannot be said that it would
violate the separation of powers if this Court orders the Secretary of State to certify S.B. 1011 as
law. Because we conclude that the Secretary of State had a clear, non-discretionary duty to
certify S.B. 1011 as law, the next issue is whether a writ of mandamus is the appropriate remedy
to ensure that duty is carried out.
D. A writ of mandamus is an appropriate remedy in this case.
The amici contend that a writ of mandamus is an inappropriate remedy in this case.
Treasure Valley Racing, LLC, argues that a writ of mandamus is inappropriate because the Tribe
has not shown “sufficient facts concerning a possible constitutional violation of an urgent
nature,” or an issue of “great public importance.” The Governor, Intermountain Racing and
Entertainment, LLC, and Coeur d’Alene Racing, Ltd., argue that the Secretary of State did not
have a clear legal duty to certify S.B. 1011 as law and that the Tribe does not have a clear legal
right to have S.B. 1011 certified as law. They contend that because both of these things must be
shown before the Court can issue a writ of mandamus, the Tribe’s failure to make such showings
is detrimental to its request for a writ. The Governor also asserts that a writ of mandamus is an
inappropriate remedy because there is an adequate remedy at the district court level and in the
legislature.
As stated above, this Court may issue a writ of mandamus “to compel the performance of
an act which the law especially enjoins as a duty resulting from an office . . . .” I.C. § 7-302. This
19
Court has held that mandamus is the proper remedy for one seeking to require a public officer to
carry out a clearly mandated, non-discretionary ministerial act. Cowles Publ’g Co. v. Magistrate
Court, 118 Idaho 753, 760, 800 P.2d 640, 647 (1990). However, the existence of an adequate
remedy in the ordinary course of law, either legal or equitable in nature, will prevent the issuance
of a writ of mandamus. Idaho Falls Redev. Agency v. Countryman, 118 Idaho 43, 44, 794 P.2d
632, 633 (1990). The party seeking the writ of mandamus has the burden of proving the absence
of an adequate, plain, or speedy remedy in the ordinary course of law. Id.
A writ of mandamus is an appropriate remedy in this case. The Secretary of State, a
public officer, had a clear, non-discretionary ministerial duty to certify S.B. 1011 as law when
the five-day deadline for the bill’s return passed. Furthermore, as discussed above, the Tribe has
a legal right to ensure that the Secretary of State comply with his non-discretionary duty to
certify S.B. 1011 as law. Finally, as the Tribe points out, there is no adequate, plain, or speedy
remedy in the court of the law. Although it is true that the district court and the legislature are
also proper forums to resolve this dispute, the facts in this case demonstrate a clear constitutional
violation, and the resolution of the case involves an important constitutional question.
Furthermore, the effective date of S.B. 1011 was July 1, 2015. Thus, it is unlikely that the district
court and the legislature could offer a speedy remedy considering the time-sensitive nature of
this case and the important constitutional question at stake. This Court has a significant interest
in taking this case and issuing a writ of mandamus to correct the constitutional violation that has
occurred. Thus, a writ of mandamus compelling the Secretary of State to certify S.B. 1011 as law
is an appropriate remedy in this case.
In sum, this Court may exercise jurisdiction over this case pursuant to article V, section 9
of the Idaho Constitution. The Idaho Constitution clearly states that the Governor must return a
veto within five days, which means the Governor must return the veto by physically delivering
the bill to the originating house or an appropriate official under the code within five days. If the
Governor fails to return the veto within five days, the Constitution and our statutory provisions
make clear that the bill automatically becomes law as though the Governor had signed it, and
that the Secretary of State then has a non-discretionary duty to certify the bill as law. In this case,
the unambiguous and uncontroverted facts in the Senate Journal conclusively establish that the
Governor’s veto was not timely returned to the originating body—the Senate—or to any other
official listed under Idaho Code section 67-504. Therefore, under the Constitution’s plain
20
language, S.B. 1011 automatically became law as if the Governor had signed it. Furthermore,
pursuant to the Constitution, because the Governor failed to return the veto within five days, the
Secretary of State had a non-discretionary duty to certify S.B. 1011 as law. Finally, a writ of
mandamus compelling the Secretary of State to certify S.B. 1011 as law is an appropriate remedy
in this case and does not violate the separation of powers.
E. The Tribe is entitled to attorney fees on this writ of mandamus.
The Tribe requests attorney fees under Idaho Code section 12-117 and Idaho Code
section 12-121. Idaho Code section 12-117(1) provides:
Unless otherwise provided by statute, in any administrative or civil
judicial proceeding involving as adverse parties a state agency, a city, a county or
other taxing district and a person, the court shall award the prevailing party
reasonable attorney’s fees, witness fees and reasonable expenses, if the court finds
that the party against whom the judgment is rendered acted without a reasonable
basis in fact or law.
This section requires an award of attorney fees to a prevailing party where one acted without a
reasonable basis in fact or law. Gunter v. Magic Valley Reg’l Med. Ctr., 143 Idaho 63, 69, 137
P.3d 450, 456 (2006) (emphasis added).
Based on our analysis in the sections above, we conclude that the Secretary of State acted
without a reasonable basis in fact or law by defending this writ. Indeed, the uncontroverted facts
conclusively establish that the veto was delivered to the President Pro Tempore on April 6, 2015,
which was well past the five-day deadline under the Constitution. Although the Secretary of
State suggested that the bill could have been returned to “a potential of thirty-seven possible
recipients” under Idaho Code section 67-504, that argument is without merit. There is only one
original bill presented to the Governor, and since the Senate Journal conclusively establishes that
S.B. 1011 was returned to the President Pro Tempore after the deadline, it is unreasonable and
disingenuous to even suggest that the bill could have been returned to any other Senate official at
an earlier time. Because the Governor failed to return S.B. 1011 within five days, the
Constitution makes crystal clear that S.B. 1011 automatically became law as if the Governor had
signed it and therefore, the Secretary of State had a non-discretionary duty to certify it as law.
Therefore, we conclude that the Secretary of State defended this writ without a reasonable basis
in fact or law. Consequently, the Tribe is entitled to attorney fees under Idaho Code section 12-
117(1). However, the Tribe is only entitled to attorney fees against the Secretary of State on the
21
substantive issues raised by the Secretary of State. The Tribe is not entitled to attorney fees
against the amici because they are not parties to this action.
IV. CONCLUSION
For the reasons stated above, we grant the Tribe’s petition for a writ of mandamus and
order the Secretary of State to certify S.B. 1011 as law. Attorney fees and costs to the Tribe from
Respondent.
Chief Justice J. JONES and J. HORTON, CONCUR.
Justice EISMANN, specially concurring.
I concur in the majority opinion and write to further explain that the only arguments
made by the Deputy Attorney General on behalf of the Secretary of State were frivolous and
disingenuous, thereby requiring an award of attorney fees to the Coeur d’Alene Tribe. In the
brief filed on behalf of the Secretary of State, the Deputy Attorney General argued only one
issue—“whether § 67-505 imposes on him the ministerial, non-discretionary duty urged by
Petitioner.” The Deputy Attorney General reiterated, “That substantive question, again, is the
only issue which Respondent addresses.”
The Deputy Attorney General’s frivolous argument regarding Idaho Code section
67-505.
Article IV, § 10, of the Idaho Constitution provides, insofar as is relevant, “Any bill
which shall not be returned by the governor to the legislature within five (5) days (Sundays
excepted) after it shall have been presented to him, shall become a law in like manner as if he
had signed it.” It is uncontradicted that the Governor received Senate Bill No. 1011 on Monday,
March 30, 2015, and that he did not return the bill to a senator until six days later (excluding
Sunday) on Monday, April 6, 2015. Thus, it is absolutely clear that the bill became law pursuant
to the Idaho Constitution because it was not returned to the legislature timely. The only
substantive issue is whether under those facts, the Secretary of State had a nondiscretionary duty
under Idaho Code section 67-505 to certify the bill as law.
That statute is unambiguous. It states, insofar as is relevant, as follows:
Every bill which has passed both houses of the legislature, and has not
been returned by the governor within five (5) days, thereby becoming a law, is
authenticated by the governor causing the fact to be certified thereon by the
secretary of state in the following form: “This bill having remained with the
governor five (5) days (Sundays excepted), and the legislature being in session, it
22
has become a law this .... day of ...., ....,” which certificate must be signed by the
secretary of state and deposited with the laws in his office. . . . .
I.C. § 67-505 (emphases added).
If a bill passed by both houses is not returned by the governor within five days, the
secretary of state is statutorily obligated by Idaho Code section 67-505 to certify that the bill has
become law. As the statute is written, the governor’s failure to return a vetoed bill timely is the
required authentication that causes the secretary of state to execute the required certificate. The
statute does not require any further action by the governor. Whether section 67-505 should be
construed as written was the only substantive issue.
Idaho Code section 67-505 states that “[e]very bill which has passed both houses of the
legislature, and has not been returned by the governor within five (5) days, thereby becoming a
law, is authenticated by the governor.” (Emphasis added.) The issue, as framed by the Deputy
Attorney General, is what the meaning of the word “is” is.
In the argument in his brief regarding section 67-505, the Deputy Attorney General began
by mischaracterizing the statute and asserting that “is” authenticated by the governor means
“shall be” authenticated by the governor. The Deputy Attorney General wrote:
That statute, however, requires the Secretary of State to certify as law a bill
“authenticated by the governor” as “ha[ving] not been returned by the governor
within five (5) days”; the Governor made no such authentication here and there is
nothing for the Secretary of State to certify pursuant to § 67-505.
He repeated that mischaracterization at the end of his argument by writing:
Respecting the legislative transaction between the Governor and the Legislature,
the Constitution, implementing statutes and case law allow for three
circumstances in which the Secretary of State can certify a bill as law:
1. Authentication by the Governor that the bill becomes law without his
signature under Idaho Code § 67-505;
2. Authentication by the originating house that the bill has not been
returned in accordance with Article IV, § 10 and thereby becomes law
without the Governor’s signature; or
3. A court order directing the Secretary of State [to] issue the certification
under § 67-505 that S. 1011 becomes law without the Governor’s
signature.
(Emphasis added.)
The Deputy Attorney General states that “the Constitution, implementing statutes and
case law allow for three circumstances in which the Secretary of State can certify a bill as law.”
23
He does not cite any provision in the Constitution, in a statute, or in case law that supports that
assertion, because there is none. Although he mischaracterizes section 67-505 regarding
“authentication by the governor,” there is no mention in the statute of any “authentication by the
originating house.” A writ of mandate from this Court can certainly direct the secretary of state
to perform his nondiscretionary duty as set forth in section 67-505, but there is nothing in the
statute indicating that a writ of mandate is a prerequisite for the secretary of state to do so.
In his argument, the Deputy Attorney General simply misrepresented the statute by
rearranging words to make it appear that the governor must take action to authenticate the fact
that he had not returned the bill within the required five days. As shown above, the governor’s
failure to return that bill within the five-day period is the required certification, which triggers
the mandatory requirement that the secretary of state certify the bill as a law. The Deputy
Attorney General did not present any authority or cogent argument to support his assertion that
the word “is” should be read “shall be.”
The historical record likewise does not support the Deputy Attorney General’s
mischaracterization of the statute. The Territory of Idaho was created in 1863. An Act to
Provide a Temporary Government for the Territory of Idaho, § 1, 12 Stat. 808, 808-09. That
legislation included a provision stating, “If any bill shall not be returned by the governor within
three days (Sundays excepted) after it shall have been presented to him, the same shall be a law
in like manner as if he had signed it, unless the assembly, by adjournment, prevent its return; in
which case it shall not be a law.” Id. § 6, 12 Stat. 808, 811. In 1887, the territorial legislation
enacted what has now become Idaho Code section 67-505. As enacted in 1887, the statute
stated:
Every bill which has passed both Houses of the Legislature, and has not
been returned by the Governor within three days, thereby becoming a law, is
authenticated by the Governor causing the fact to be certified thereon by the
Secretary of the Territory in the following form: “This bill having remained with
the Governor three days (Sundays excepted), and the Legislature being in session
it has become a law this day of A. D. _____,” which certificate must be signed by
the Secretary of this Territory and deposited with the laws in his office.
Rev. Stat. of Idaho Territory § 154 (1887). The territorial legislature took a great body of its
statutory law from California. Merchants’ Protective Ass’n v. Jacobsen, 22 Idaho 636, 641, 127
P. 315, 317 (1912). In 1852, California had enacted a statute very similar to section 154 (now
section 67-505), which stated:
24
Every Bill which has passed both Houses of the Legislature, and shall not
be returned by the Governor within ten days, having thereby become a Law, shall
be authenticated by the Governor, causing the fact to be certified thereon by the
Secretary of State, in the following form:
“This Bill having remained with the Governor ten days, (Sundays
excepted,) and the Senate and Assembly being in session, it has become a Law,
this _____ day of _____, A. D. _____,” which certificate shall be signed by the
Secretary of State, and deposited with the Laws in his Office.
An Act for the Authentication of Statutes Without the Approval of the Governor, ch. 49, § 2,
1852 Cal. Sess. Laws 112, 112-13. Because of the similarity between the two statutes and the
fact that the Idaho territorial legislature routinely copied statutes from California, it is apparent
that section 154 was copied from the California statute. In copying the statute, the Idaho
territorial legislature made a significant change.
The California statute stated that the governor’s failure to return a vetoed bill within the
prescribed time period “shall be authenticated by the Governor, causing the fact to be certified
thereon by the Secretary of State.” In 1870, the Governor of California failed to return a vetoed
bill timely, and he refused to execute the required authentication. As a result, a writ of mandate
had to be obtained from the California Supreme Court to command the governor to execute the
authentication. Harpending v. Haight, 39 Cal. 189, 1870 WL 857 (Cal. 1870). The statute
enacted by the Idaho territorial legislature did not include the wording “shall be authenticated by
the Governor.” Instead, the wording was “is authenticated by the Governor.” The change in the
wording was obviously made to avoid the necessity of obtaining a writ of mandate to command
the governor to execute an authentication if he failed to return a vetoed bill timely. Section 154
(now section 67-505) provided that the governor’s inaction—his failure to return the vetoed bill
timely—is the authentication, which causes the fact to be certified by the secretary of the
territory then and the secretary of state now.
The Deputy Attorney General’s disingenuous arguments regarding the facts.
The undisputed facts are that the Governor received the bill on March 30, 2015, and that
the five-day period for vetoing it and returning it to the Senate expired on Saturday, April 4,
2015. On Thursday, April 2, 2015, the Senate adjourned until 1:30 p.m. on Monday, April 6,
2015. The Governor’s veto message is dated April 3, 2015, but the veto would be ineffective
unless the bill was returned to the Senate on or before April 4, 2015. Idaho Const. art. IV, § 10.
25
Idaho Code section 67-504 sets forth a procedure for returning a vetoed bill when the
house in which the bill originated has adjourned for the day but not for the session. It states:
If, on the day the governor desires to return a bill without his approval and
with his objections thereto to the house in which it originated, that house has
adjourned for the day (but not for the session), he may deliver the bill with his
message to the presiding officer, clerk, or any member of such house, and such
delivery is as effectual as though returned in open session, if the governor, on the
first day the house is again in session, by message notifies it of such delivery, and
of the time when, and the person to whom, such delivery was made.
Because the Senate had adjourned on April 2, 2015, and would not be back in session
until 1:30 p.m. on April 6, 2015, the Governor could return Senate Bill No. 1011 on or before
Saturday April 4, 2015, by delivering it to the President of the Senate, Lieutenant Governor Brad
Little; to the Secretary of the Senate, Jennifer L. Novak; or to any senator. However, the statute
provides that delivery to one of those persons would only be effective “if the governor, on the
first day the house is again in session, by message notifies it of such delivery, and of the time
when, and the person to whom, such delivery was made.” Id. There is no contention that the
Governor did so in this case.
On April 6, 2015, the Secretary of the Senate presented a letter to the President of the
Senate notifying him that Senate Bill No. 1011 had not been returned to her, nor to her
knowledge had there been any attempt to return it to her. She also stated that correspondence is
routinely returned to her by slipping it under the door of her office, and that other
correspondence was slipped under her door and returned “in accordance with Article IV, §10 and
Idaho Code §§ 67-504 & 505.” It is significant that not only was Senate Bill No. 1011 not
returned to her, but neither was any correspondence in accordance with Idaho Code section 67-
504 regarding that bill. 6
6
The letter from the Secretary of the Senate was transcribed in the Senate Journal. It read as follows:
April 6, 2015
The Honorable Brad Little
President
Idaho State Senate
Dear Mr. President:
This communication reflects that S 1011 was not returned to my office by 4:54 p.m. on April 4,
2015 in my capacity as the Secretary of the Senate. Other correspondence of legislation were [sic]
slipped under my door and returned in accordance with Article IV, §10 and Idaho Code §§67-504
& 505. Correspondence of legislation is routinely returned to me in this fashion. To the best of
26
During oral argument by the Deputy Attorney General, his mischaracterization of Idaho
Code section 67-505 was pointed out by quoting the entire relevant portion of the statute. He
was then asked twice whether he was aware of any compliance with Idaho Code section 67-504,
and each time he responded, “I don’t know.” Unless he was willfully ignorant of the facts, those
responses were false. He was later asked whether anyone had contended that the Governor had
sent a message pursuant to section 67-504, and he avoided the question. He was then asked three
times whether he was aware of any compliance with section 67-504, and each time he would not
answer the question.
Later in his oral argument, the Deputy Attorney General stated that “we” do not know
whether or not the return of the bill was timely. He was asked, “Are you aware of any
contention that it was returned within five days?” He answered: “Yes, the journal. The journal
says that it was returned.” He was told: “The journal doesn’t say that. It doesn’t say that it was
returned within five days.” He responded: “The journal. The journal. Under the Constitution,
the journal is not required to reflect when the legislation was returned.” Thus, on one hand the
Deputy Attorney General stated that the Senate Journal showed that Senate Bill No. 1011 was
returned within five days, and on the other he stated that it is not reflected in the Senate Journal
because the Constitution does not require the Senate Journal to reflect when legislation is
returned. Those inconsistent answers reflect a lack of candor. Finally, near the end of his oral
argument, the Deputy Attorney General was again asked whether anyone had contended that the
bill was returned to him or her (other than the President Pro Tempore), and the Deputy Attorney
General finally answered truthfully, “Not that I’m aware of.”
It is clear that he knew there had been no compliance with section 67-504, because had
there been, the message submitted by the Governor in compliance with that statute would be in
the possession of the Secretary of State. Any such message would have been delivered to the
Secretary of the Senate, 7 and she would have delivered such document to the Secretary of State
my knowledge no earlier return was attempted to my office, nor was I asked to receive such a
return at any earlier time.
Sincerely,
/s/ Jennifer L. Novak
Secretary of the Senate
7
Senate Rule 8(A) states:
The Secretary of the Senate shall have custody and supervise the handling of all records,
bills, documents, and other official papers; he shall allow no bills, records, or papers to be taken
out of his custody or out of the Senate Chamber other than in the regular routine of business; nor
27
at the end of the legislative session, receiving from him a certification that he had received it. 8
Thus, the Secretary of State would know whether or not the Governor had submitted to the
Senate a message in compliance with Idaho Code section 67-504.
The Deputy Attorney General admitted during oral argument that if Senate Bill No. 1011
had been returned timely, it would be an absolute defense to this request for a writ of mandamus.
He was then asked, “Would a competent attorney, representing the secretary of state, make that
inquiry?” He answered, “No.” Apparently, his strategy was to be willfully ignorant of the facts.
If, in truth, he was ignorant of the facts, he should not have attempted to argue them.
The Deputy Attorney General also argued, “There is a legitimate question before this
Court because under 67-504 there is a potential of thirty-seven possible recipients of a returned
piece of legislation.” That assertion was patently disingenuous. The President Pro Tempore
submitted a letter dated April 6, 2015, to the President of the Senate in which the President Pro
Tempore stated: “This communication reflects that Senate Bill 1011 was returned to my office
at 8:52 am on April 6, 2015. To the best of my knowledge no earlier return was attempted to my
office, nor was I asked to receive such a return at any earlier time.” There is no doubt that the
President Pro Tempore had possession of the original bill because until the vetoed original bill
and the Governor’s objections to the bill were returned to the Senate, the Senate could not have
voted to override the veto. I.C. § 67-503. See also Senate Rule 16. 9 There was only one
shall he at any time or place allow the same to be handled or examined by any person whatsoever
except the President, Senators, officers, and employees of the Senate in the discharge of their
duties. Public records requests of the Secretary of the Senate shall be handled as provided in Rule
8(E).
8
Senate Rule 7(E) states:
It shall be the duty of the Secretary of the Senate, at the close of each session of the
legislature, to mark, label, and arrange all bills and papers belonging to the archives of the Senate,
and to deliver the same, together with all the books of the Senate, to the Secretary of State, who
shall certify to the reception of the same.
9
Senate Rule 16 states:
When a bill has been vetoed by the Governor and his objections entered upon the Journal,
that bill is before the Senate for reconsideration in accordance with Article 4, Section 10, Idaho
Constitution; the question to be put by the Chair is, “Shall Senate Bill _____ pass, the Governor’s
veto notwithstanding?” When the question of reconsideration has been stated, it shall be in order
to receive only the following motions in the order named:
(1) Adjourn.
(2) Recess.
(3) Question of privilege (but personal privilege shall not be permitted).
28
original of the bill submitted to the Governor, and after vetoing it he was required to return the
vetoed original to the Senate.
“All bills or joint resolutions passed shall be signed by the presiding officers of the
respective houses.” Idaho Const. art. III, § 21. There is only one original of each bill that is
signed by the presiding officer of each house and submitted to the governor. “After a bill has
passed both houses, it shall be enrolled not later than 48 hours after the time of passage.” Joint
Legislative R. 4. “After being enrolled each bill . . . shall be signed first by the presiding officer
of the house in which it originated, then by the presiding officer of the other house, and lastly be
submitted to the governor for his consideration.” Joint Legislative R. 5.
Thus, the Governor received the original of Senate Bill No. 1011, which was signed by
the presiding officer of each house. It was the original of the bill upon which the Governor
affixed his veto stamp, and it was the original of the bill that had to be returned to the Senate.
Article IV, § 10, of the Idaho Constitution states, “Every bill passed by the legislature shall,
before it becomes a law, be presented to the governor.” The Constitution further provides, “If he
approve, he shall sign it, and thereupon it shall become a law; but if he do not approve, he shall
return it with his objections to the house in which it originated . . . .” Id. (emphasis added). All
four of the words “it” refer to the original of the bill presented to the governor to which are
affixed the signatures of the presiding officers of both houses of the legislature.
Therefore, the Governor would have to have returned the original Senate Bill No. 1011 to
someone on or before April 4, 2015, and then returned the same original bill to the President Pro
Tempore on April 6, 2015. The Deputy Attorney General would apparently have us believe that
the Governor timely returned the original of the bill to some phantom senator, who gave the bill
back to the Governor, and then the Governor later returned the original of the bill to the Senate
Pro Tempore. There are certainly no facts supporting that fantasy. Indeed, the Governor
submitted a brief as amicus curiae in this case, and he did not contend that he returned Senate
Bill No. 1011 to anyone other than the President Pro Tempore, nor did he contend that he
returned it to the President Pro Tempore on April 4, 2015, or earlier. The Deputy Attorney
(4) Call for orders of the day.
(5) Previous question.
(6) Limit debate.
(7) Postpone to a time certain.
29
General was obviously aware of these facts when he disingenuously argued that the Governor
could have timely returned the bill to some other senator.
It is undisputed that the Governor returned the vetoed bill to the President Pro Tempore.
The President Pro Tempore stated in his letter that the return was made during the morning of
April 6, 2015, which would be untimely. When asked about the President Pro Tempore’s
statement as to when Senate Bill No. 1011 was given to him by the Governor, the Deputy
Attorney General stooped to groundlessly disparaging the character of the President Pro
Tempore.
Near the end of the Deputy Attorney General’s oral argument, the following exchange
occurred regarding the statement by the President Pro Tempore in his letter that was transcribed
in the Senate Journal:
Justice Eismann: “I’m reading from the journal. ‘Dear President Little: This
communication reflects that Senate Bill 1011 was returned
to my office at 8:52 a.m. on April 6, 2015.’ Should we
accept that as true?”
Mr. Kane: “Mr. Justice, you can accept that as a statement of an
individual senator.”
Justice Eismann: “It’s in the journal.”
Mr. Kane: “It is in the journal. But the senate had received that
communication and without objection reconsidered the
bill.”
Justice Eismann: “Is there any conflicting evidence in the journal?”
Mr. Kane: “There’s –”
Justice Eismann: “Is there any conflicting statement by somebody that they
received this earlier in the journal?”
Mr. Kane: “Well, there’s the message of the Governor reflecting that
he vetoed it earlier and there’s also the action of the
senate.”
The Governor’s message gives no indication as to when he gave the vetoed bill to the
President Pro Tempore. Thus, the Deputy Attorney General was contending that the Senate’s
action in seeking to override the Governor’s veto showed that the Senate did not believe the
30
President Pro Tempore’s statement that the Governor had returned Senate Bill No. 1011 to him
on the morning of April 6, 2015. That the Deputy Attorney General in an act of desperation
would make such a groundless attack on the President Pro Tempore’s character demonstrates the
total lack of substance in the Deputy Attorney General’s argument.
Two people have direct knowledge of when the Governor returned Senate Bill No. 1011
to the President Pro Tempore—the Governor and the President Pro Tempore. As stated above,
not even the Governor has disputed the President Pro Tempore’s statement as to when the bill
was returned to him. The record does not reflect why the Senate had a vote to override the
Governor’s veto when Senate Bill No. 1011 had already become law because the Governor had
not returned it timely to the Senate. However, there is absolutely no reason to believe that the
Senate did not believe the President Pro Tempore. The fact that the Deputy Attorney General
would resort to making such a groundless attack upon the character of the President Pro Tempore
demonstrated the total lack of merit in the Deputy Attorney General’s arguments regarding the
facts.
In summary, the facts are undisputed that the Governor did not return Senate Bill No.
1011 to the Senate within the five days required by the Idaho Constitution, and so the bill
became a law. The Secretary of State knew that the bill was not returned to the Senate timely
because the documents showing an untimely return had been delivered to the Secretary of State
at the end of the session by the Secretary of the Senate. In fact, at one point in his oral argument
the Deputy Attorney General apparently inadvertently admitted that the Governor’s return was
clearly late. He stated that if this Court wants to know “why is it that you [the Senate] took this
into consideration when it was clearly late, those folks aren’t in front of the Court.” (Emphasis
added.) Why the Senate had a vote on overriding the Governor’s veto is irrelevant. Under the
undisputed facts, the bill had already become law. Based upon the undisputed facts known to the
Secretary of State, his obligation was clear and unambiguous. He had the statutory duty to
certify the fact that the bill had become law as set forth in Idaho Code section 67-505.
The Secretary of State should have done exactly what the iconic former Secretary of State
Pete Cenarrusa did when the Governor did not timely veto and return a bill—he refused to
recognize the veto. Cenarrusa v. Andrus, 99 Idaho 404, 406, 582 P.2d 1082, 1084 (1978).
Unfortunately, a majority of the Cenarrusa Court chose to disregard the plain meaning of the
31
Idaho Constitution in order to uphold the veto under a hypothetical set of facts that were
unrelated to the facts of the case.
Idaho Code section 12-117(1) provides for an award of attorney fees and costs in this
case if “the nonprevailing party acted without a reasonable basis in fact or law.” (Emphasis
added.) There only needs to be the lack of a reasonable basis in fact or in law. In this case, the
arguments raised by the Deputy Attorney General in defense of the Secretary of State’s failure to
perform his statutory duty did not have a reasonable basis in fact and in law. The Deputy
Attorney General mischaracterized the applicable law and made disingenuous and false
statements regarding the facts. Therefore, the Coeur d’Alene Tribe is entitled to an award of
reasonable attorney’s fees and other reasonable expenses pursuant to Idaho Code section 12-
117(1).
Justice W. JONES, concurs.
32