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BOISE — When Idaho lawmakers reconvene this year’s regular session on Monday, they’ll be doing so under a legal cloud, because there are conflicting legal opinions about whether they can turn the state’s part-time Legislature into a year-round one by simply never adjourning sine die and reconvening whenever they want.

An Idaho Attorney General’s opinion in May concluded that though the Senate adjourned sine die in May, the fact that the House just recessed means they’re both still in session, because the Idaho Constitution doesn’t allow one house to adjourn for more than three days without the concurrence of the other. However, it also called the situation “unique and without precedent,” and noted there was “risk” in pursuing this course, because a court could rule differently.

Former Idaho Supreme Court Chief Justice Jim Jones says his reading of the Idaho Constitution is that both houses are adjourned for the year, and only the governor can call them back into a special session.

It’s the current Idaho Supreme Court that would have to decide any challenge of the Legislature’s approach. And interestingly, in a footnote in the court’s unanimous Aug. 23 decision in the Reclaim Idaho v. State case, the justices appeared to take a position.

The footnote, on page nine of the 55-page decision, was added in regard to a statement about the 60-day limit that advocates of a voter referendum have to gather signatures after the Legislature adjourns sine die, or for the year, in order to qualify a referendum measure for the ballot. Referenda are ballot measures that reject an action the Legislature has taken.

“The Idaho Senate adjourned its 2021 legislative session in May; however, the Idaho House of Representatives refused to do so, opting instead to recess to a date no later than Dec. 31, 2021,” Justice Greg Moeller wrote for the court. “Thus, the 60-day window for gathering the required signatures for the referendum has not yet commenced.”

This appears to say our Supreme Court justices believe the Legislature is still in session, and hasn’t yet adjourned sine die.

That said, the footnote is not a binding precedent; it appears to be what’s called “dicta,” typically statements made by the court about the law that were not necessary for the court to decide the case. But it still provides a tantalizing hint about the justices’ view of the issue.

The Cornell Law School Legal Information Institute defines dicta, formally “obiter dictum,” as, “A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.”

Sen. Grant Burgoyne, D-Boise, an attorney, said, “It’s very troubling to me that we’ve taken a Constitution that plainly contemplated a part-time Legislature, and we seem to have found a loophole that would make it a permanent Legislature if we want it to be — in perpetual session, contrary to what I think almost everybody in this state believes is appropriate. And contrary to what the people at the Constitutional Convention for this state believed, and contrary to some of the plain language in our Constitution. And it’s an enormous power grab.”

He added, “Nothing causes me as a lawyer, nor has cost my clients more money and angst, than footnotes in opinions.”

That’s because dicta — and footnotes — generally address issues that weren’t squarely addressed in the case at hand, so the various parties had no chance to submit arguments or briefs about them.

“It’s just the arguments that you realize are there that make it into footnotes,” Burgoyne said. “So let’s not put too much stock in footnotes.”


In a Nov. 1 letter to Gov. Brad Little and the top two GOP leaders in the Idaho House and Senate, Nampa Mayor Debbie Kling and all six Nampa City Council members issued a strong call for the governor and Legislature to partner with local governments to fix the property tax and budgeting problems created by HB 389, last year’s big property-tax reform bill that was hastily passed in the final days of the regular session in May.

After going through a budget cycle with the bill’s new restrictions on city budgets in place, the officials wrote, they have concluded that “it compromises public safety and inhibits our ability for growth to fund growth.”

The city of Nampa lost $967,737 from its fiscal year 2022 budget as a result of the provisions of HB 389, the officials wrote. Nevertheless, “Our residents have seen double-digit increases in their property taxes and are seeking relief.”

In their detailed five-page letter, the Nampa elected officials noted Little’s signing message saying he wanted to work with cities to revise the bill, and laid out a series of specific recommendations, including repealing the local government budget limits contained in the bill; indexing the homeowner’s exemption to the Idaho Housing Price Index going forward; and reforming the “circuit breaker” property tax break for needy seniors to remove provisions enacted this year that would boot off needy seniors whose home prices increase. “Seniors on a fixed income shouldn’t go from full recipient status to non-qualifying status due to the volatility in their home value,” the Nampa officials wrote. They called for repealing home-value restrictions and indexing the value of the circuit breaker to automatically adjust based on inflation.

“We welcome the opportunity and stand ready to join any discussions you wish to have over the negative impacts of HB 389 for our community and our surrounding communities and wish to partner to find sustainable solutions to the challenges our citizens are facing,” they wrote.

The letter also was copied to the House and Senate tax chairs; Rep. Jim Addis, co-chair of the interim property tax committee; the Association of Idaho Cities; and every Nampa legislator.

This article has been updated to correct the month in which HB 389 passed; it was in May.

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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