Zollinger, Nate, Smith challenging grocery tax veto

As we learned in 2015, a governor’s veto isn’t always the end of a bill.

On Wednesday morning, Rep. Bryan Zollinger, R-Idaho Falls, Rep. Ron  Nate, R-Rexburg, and former congressional candidate Bryan Smith announced they are asking Secretary of State Lawerence Denney not to recognize Gov. C.L. “Butch” Otter’s Tuesday veto of House Bill 67, the grocery tax repeal.

Nate, Smith and Zollinger said they are prepared to sue over the matter, hoping to overturn not only the veto, but a 1978 court decision on how long a governor has to consider legislation.

The jist of the argument is this: Zollinger and Nate say the Idaho Constitution says the governor must act on all remaining bills within 10 days of the legislature adjourning for the session. As Otter said in his press conference last week, he’s going from 10 days of the bill being delivered to his office.

The grocery tax repeal bill was delivered to Otter on Friday, March 31 — two days after the legislature adjourned.

So what does the Idaho Constitution say?

Article IV, Section 10, addresses the governor’s veto power.  Note the last part: “(u)nless 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.”

In short, if the clock started ticking on March 29, when the legislature adjourned, and not March 31, when the bill was delivered to Otter, then the grocery tax repeal would have become law without signature on Monday, said Rep. Ron Nate, R-Rexburg, during the Wednesday press conference.

While the Constitution seems clear, there is case law on this. In a 1978 Idaho Supreme Court case, Cenarrusa v Andrus, a split court ruling, that said the governor has ten days from the time the bill is delivered.

“The governor’s consideration of a bill is an essential element of the legislative process,” the opinion says. “Presentment provides an opportunity for the governor to give full consideration to a bill as finally passed by the legislature. The wise exercise of the executive right of veto necessarily requires thoughtful deliberation, which in turn requires time commensurate with the responsibility.”

Zollinger and Nate told Bryan Clark of the Idaho Falls Post-Register that Cenarrusa v. Andrus was decided based on judicial activism, not a textualist reading of the Constitution. They hope this court will side with them, should the challenge get that far. (Read Clark’s story here.)

High courts can and do overturn themselves, but it’s rare.

Otter’s office announced the veto on Tuesday evening, citing concerns over general fund stability. “In summary, I understand that House Bill 67 has captured the popular imagination. It purports to provide tax relief for the working poor — a worthy ambition but one that is already accomplished through the grocery tax credit,” Otter wrote in his veto letter.

“In our view and in the Secretary of State’s view, it’s a valid veto,” said Jon Hanian, press secretary for Otter, on Wednesday. Tim Hurst, chief deputy in the Secretary of State’s office, confirmed the office had accepted it, and cited Cenarrusa v Andrus as the guidance the office follows.

We’ll have more on this story as it develops. Watch Idaho Reports on Friday at 8 pm for analysis.


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