Last Tuesday, April 11, Gov. Butch Otter vetoed the bill that would have eliminated the sales tax on food, HB 67.

The next day, a news conference was held in Idaho Falls by Rep. Ron Nate (R-Rexburg), Rep. Bryan Zollinger and former Republican congressional candidate Bryan Smith.  They announced that they believed the veto violated the Idaho Constitution’s deadline on when the bill could be vetoed and threatened a lawsuit. Both Smith and Zollinger are attorneys in the same law firm in Idaho Falls.

At issue is the following provision of the Idaho Constitution, Article IV, Section 10, which reads:

SECTION 10. VETO POWER. 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. . . . 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, 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 (10) days after such adjournment (Sundays excepted) or become a law.

(Emphasis added).

Nate/Zollinger/Smith focus on the phrase “ten (10) days after such adjournment”. This year, the Idaho Legislature adjourned on March 29.  If the 10-day clock began on that day, the 10-day clock would have expired on Monday, April 11 (the constitutional provision excludes Sundays from the count).  They assert the Otter veto was invalid, meaning that HB 67 “shall become law”, thereby repealing Idaho’s food sales tax.

Otter’s office strongly disagrees, pointing to a 1978 Idaho Supreme Court decision on this very issue, Cenarrusa v. Andrus, 582 P.2d 1082, 99 Idaho 404 (Idaho, 1978). That decision stated that the 10-day clock began to run, despite the language in the Idaho Constitution, from the point the Legislature presented the bill to the governor.  Here, that was on March 31 and, by excluding Sundays, results in April 11 being the last day that Otter could have issued a veto of the measure (which he did).

That 1978 case involved two bills (one was a partial veto which is a separate question) presented to Gov. Cecil Andrus after the 1976 legislative session, which he vetoed after 10 days from the Legislature’s adjournment but within 10 days of presentment to him. Then-Attorney General Wayne Kidwell, citing Article IV, Section 10, directed the Secretary of State to enter the measures into law.

In a 3-2 decision (the dissent thought that Andrus had 5 days to exercise his veto), the Idaho Supreme Court majority looked to Idaho’s constitutional convention history, the role of the governor in reviewing legislative actions and an Illinois Supreme Court case.  Driving their decision was a concern that “a construction placing the legislature in control of the time frame available to a governor for consideration of a bill can only lead to an undermining of the dignity of the position to which each of these two equal and coordinate branches of government are entitled in their transactions with each other.” In effect, if the Legislature could adjourn and then delay the presentment of a bill, the impact would be to reduce the governor’s ability to adequately analyze and consider the measure presented.

That analysis led the Idaho Supreme Court to hold that:

Unlike the five day period during the session, which affects the conduct of legislative business, the legislature, once it has adjourned, can have no genuine interest in the speed with which a gubernatorial veto is made. It is only the functions and prerogatives of the office of governor which could be made to suffer from an interpretation of article 4, § 10 which would permit less than ten days for consideration of bills following presentment after adjournment. We conclude that the governor has ten full days from the date of presentment in which to consider bills presented to him after adjournment of the Idaho Legislature.

(Emphasis added).

Zollinger, Nate and Smith’s hope is that the current Supreme Court might feel more bound by the constitutional language and less influenced by the role of the governor in the veto process.  If so, the Court could overturn the Cenarussa case. But, courts are generally reluctant to overturn a previous decision without a compelling change in circumstance.

After the lawsuit is filed in district court, the plaintiffs will likely lose because Cenarussa is binding. The appeal to the Idaho Supreme Court will take some time. We won’t likely know the final outcome on the sales tax on food until 2018 or so.

Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (www.MaynesTaggart.com).  He has an extensive background in politics and public policy.  He can be reached atThis email address is being protected from spambots. You need JavaScript enabled to view it..