A legal primer in the grocery tax veto case

By Seth Ogilvie, Idaho Reports



Most people following the the grocery tax repeal veto drama are focused on the political drama of the court’s pending decision (Republican lawmakers challenging a Republican governor’s veto) and the fiscal impacts — not just for Idahoans’ grocery bills, but for the state’s coffers.

But as Idaho Reports producer Seth Ogilvie explains, there are big legal implications surrounding the challenge, too.


A grocery tax study guide

The Idaho Supreme Court has three major questions to answer if it wants to overturn the 1978 Cenarrusa v. Andrus decision and the Governor’s veto on the grocery tax repeal bill. None of them have anything to do with food, but all of them could have dramatic implications.

Did the right people make the argument?

In April, 30 legislators sued to invalidate the grocery tax veto. In order for the court to decide the merits of the case, first the legislators have to convince the court they have standing. Justice Robyn Brody outright asked the question, “Who has standing to bring this case?” in oral arguments on June 15.

In layman’s terms, standing means the legislators have to show that they have been harmed or will be harmed. The Supreme Court laid out its own matrix in Coeur d’Alene Tribe v Lawrence Denney:

“[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.”

According to the same opinion, the injury also has to be “actual or imminent losses of profit or rights greater than the average citizen.” It’s hard to argue that these 30 citizens would have any greater injury than any other citizens, but they’re not everyday citizens. They are representatives and senators of the Idaho Legislature. It would be far easier to prove the Senate or House as institutions are suffering harm rather than the individual legislators themselves, because they are the branches of government directly impacted.

“Although these are very dear friends that are the petitioners, they don’t represent the legislature, they represent themselves as legislators,” said Senate Majority Leader Bart Davis (who, since our interview, was nominated to be the new US Attorney for the District of Idaho). “They don’t represent even the majority of one of the two bodies… so legislators don’t normally have by themselves standing, or at least we don’t normally think of it that way.

“The Supreme Court understood that,” Davis added. “I could see that they understood that.”

The governor’s lawyer, David Hensley, agreed. “A grocery store owner in a border community would have standing,” Hensley said during oral arguments, but not the 30 petitioners.

This, however, is not the end of the argument. Bryan Smith, the attorney for the petitioners, pointed to another line from Coeur d’Alene Tribe v Lawerence Denney:

“The Tribe has not demonstrated a ‘distinct and palpable’ injury sufficient to confer standing… However, we may nonetheless exercise jurisdiction over this writ.”

To put it another way, if the court thinks this case is important enough, it will hear it anyway.

If the court decides to concur with the Coeur D’Alene Tribe case and overlook standing, a good explanation by the court is needed in the wake of Joki v. State, the school funding case in which the court dismissed the claim because the plaintiffs did not demonstrate proper standing despite a clear importance of the case.

“CBECA provides three distinct types of standing to sue. I.C. § 6-2205. To properly add the State Defendants, Joki was required to comply with Idaho Code section 6-2205(3). He did not. Accordingly, notwithstanding their various responsibilities, the State Defendants were properly dismissed.”

If the court is able to navigate through the standing argument without dismissing the case, it will still find another hurdle in getting to the merits of Cenarrusa.


The petitioners are asking for a writ of mandamus, or “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion,” according to the Wex Law Dictionary.

“The court is going to have to decide whether this is the right process to bring it to the Idaho Supreme Court,” Davis explained.

The writ of mandamus is typically given only when there is no alternative means of seeking review. The Attorney General’s office argued that the petitioners had not yet exhausted their alternative means. In other words, they had not gone to district court, but instead went straight to the Supreme Court.

Deputy Attorney General Brian Kane said “The hazard here is if the court immediately takes up the constitutionality, the court has created a shortcut to its bench.”

“It’s procedurally strange,” admitted Smith. He argued it was necessary, though, adding it “does not present a can of worms.”

The court has a difficult procedural question, as posed by Kane: Does this court want to create a shortcut to its bench?

If justices agree a writ of mandamus creates a “shortcut,” the prudent thing for the court to do is show judicial restraint and allow the district court to address the issue. If they believe it is only “procedurally strange,” it will be interesting to see how the court puts up a roadblock for future cases attempting to use this shortcut.

There is an additional complication to sending it down to district court: The time frame. The legislature will most likely deal with the grocery tax issue itself when it reconvenes in January 2018, and then the court would have no ability to address the Cenarrusa decision. These types of veto challenges don’t come before the court often, and with the window to overturn Cenarrusa closing a little bit more every day, it truly will take a heroic act of judicial restraint to not take a swing at the case if the court does want to overturn the ruling.

Is Cenarrusa correct?

In the 1978 Cenarrusa v Andrus decision, the Idaho Supreme court ruled that the Governor had ten days from the time he or she received the bill to veto a piece of legislation — a ruling that some believe directly contradicts the Idaho state constitution, which says the governor has ten days from the legislature adjourning at the end of the session.

Remember, Gov. Otter didn’t receive the grocery tax repeal bill until two days after the legislature adjourned for the session, and he vetoed it eleven days after sine die. The very question of the challenge rests on when the clock started ticking for his veto.

“I have felt for some years that the holding of the Cenarrusa decision was ripe for reconsideration,” Davis said.

The 1978 court interpreted the intent of the constitution, rather than the plain language of the text, as Smith pointed out. “Where is the ambiguity in the phrase?” Justice Horton asked in oral arguments. “Within ten days” would not seem to jive with an 11th or 12th day veto, but separated by six commas you find the phrase “presented to him.” The legal term “stare decisis” in Latin means “to stand by things decided.”

“It is the duty of this court to apply stare decisis,” said Justice Roger Burdick during oral arguments. The court has decided on this question in Cenarrusa. They decided the phrase meant ten days from presentment.

But Smith didn’t see it as an interpretation. “What the court did in Cenarrusa was amend the constitution,” not interpret it, he said. This essentially pits the constitution against stare decisis. We all know the importance of the constitution, but stare decisis has a more complicated impact.

In oral arguments, attorneys and justices also discussed the 3-2 vote in the Cenarrusa decision. It being such a close vote, should the attorney general and the governor’s lawyers have advised Otter that he should meet the 10 day requirement just in case? Stare decisis would tell us no, as many important decisions were decided on close votes: Miranda v. Arizona, District of Columbia v. Heller, Bush v. Gore, Citizens United V. FEC, United States v. Windsor, and Obergefell v. Hodges, just to name a few of the U.S. Supreme Court biggies. Stare decisis tells us we shouldn’t constantly reconsider whether or not you have Miranda rights or gun rights, or if President George W. Bush should have been president every other year. Doing so would create judicial and social chaos.

Then there is Justice Burdick’s other question: “Why isn’t Cenarrusa a good government decision?” The Idaho state government has run reasonably well under the current interpretation of the governor’s veto power. If changed, “the court will be jerking the rug out from underneath the governor,” Hensley said.

In the final days of the legislature, things move fast. After sine die, legislators head home almost immediately, and often times staff members take a short break. This year sine die was on a Wednesday — March 29th — and the bill was delivered two days later, on Friday, March 31st. If you give the governor two days for the weekend (because he deserves a weekend just like the rest of us) and if you remeber this year the governor was sick at the time (remember the postponed sine die press conference?) that puts us at the following Monday. (Even then, Otter still appeared to be showing some symptoms of his illness at the Monday sine die press conference.)

Then on Wednesday, April 5th, Jerome “Sunny” Otter, the governor’s brother, passed away. I think common decency would give him at least two days to deal with a loss like that. Throughout that time, the governor also had to run the state and deal with the dozens of other pieces of legislation. If we use the 10 days from sine die rule and subtract the days we gave the governor due to either sickness tragedy or lack of having the bill, he’s left with either one or two days to veto the legislation, depending on how liberal you are with the sick time. If you went from the time of presentment a la the Cenarrusa decision, he vetoed the bill a day ahead of schedule.

The other issue: There is no constitutional requirement saying the Idaho Legislature has to turn the bill over to the governor before the ten day deadline. The system is solely dependent on the decency of the people holding the offices to transmit legislation in a timely fashion.

However, “even if the Idaho Supreme Court were to reverse the Cenarrusa standard,” Davis said, “if the Legislature held onto (a bill) for 8 or 9 or 10 days, then I think the court could take a look on a case-by-case basis on whether there is a different remedy.”

That would leave Idaho with a different deadline for the governor’s veto, and the court system responsible for keeping the Legislature honest. However, if the court decides to overturn Cenarrusa, that doesn’t mean they will decide to overturn the specific grocery tax veto.

Should the governor be punished for following the law?

The governor was following the law at the time of the veto. As Kane argued, “the state (would be) punishing state actors for complying with the ruling of the court.”

There is, however, one elegant solution to that problem. If the court decides it is comfortable with the standing issue, thinks it is the right court to hear the case, and wants to overturn Cenarrusa, but doesn’t want to punish the governor or create a precedent by which people should doubt close court decisions, they could overturn their previous decision but apply it only to vetoes after the decision, allowing the veto to stand but reversing a ruling they didn’t agree with.

In other words, the court could toss Cenarrusa, but allow Otter’s veto anyway.

More than just taxes

Like all legal fights, we’re going to eventually have a conclusion. Here are the big questions Idaho needs answered by the court: How does the court judge standing, and will it set a bad precedent? How do justices explain the proper court of origin, and will that explanation create a shortcut to the bench? And if they get past those hurdles, what happens to Cenarrusa? And will any of this effect the six percent tax on groceries?

I told you this had almost nothing to do with food.


















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